|
England and Wales
(State or other jurisdiction of Incorporation or organization)
|
| |
2834
(Primary standard industrial
classification code number) |
| |
Not applicable
(I.R.S. Employer
Identification Number) |
|
|
Steven V. Bernard
Bradley L. Finkelstein Melissa Rick Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California 94304-1050 (650) 493-9300 |
| |
Charles Waddell
Pinsent Masons LLP 30 Crown Place Earl Street London EC2A 4ES United Kingdom +44(0) 20 7418 7000 |
| |
Duncan Peyton
Chief Executive Officer 4D pharma plc 5th Floor, 9 Bond Court Leeds LS1 2JZ United Kingdom +44(0) 113 895 0130 |
| |
Matthew Chen
Longevity Acquisition Corporation Yongda International Tower No. 2277 Longyang Road, Pudong District, Shanghai People’s Republic of China (86) 21-60832028 |
| |
Arila Zhou
Joan Wu Hunter Taubman Fischer & Li LLC 800 Third Avenue, Suite 2800 New York, New York 10022 (212) 530-0000 |
|
| | ||||||||||||||||||||||||||||
Title Of Each Class Of Security To Be Registered
|
| | |
Amount To Be
Registered(1) |
| | |
Proposed Maximum
Offering Price Per Security |
| | |
Proposed Maximum
Aggregate Offering Price |
| | |
Amount of
Registration Fee |
| ||||||||||||
Ordinary Shares, nominal value £0.0025 per
share(2)(3) |
| | | | | 31,055,000 | | | | | | $ | 1.4539(4) | | | | | | $ | 45,150,865(4) | | | | | | $ | 4,926(5) | | |
Warrants(6) | | | | | | 4,320,000 | | | | | | | — | | | | | | $ | 7,365,600(7) | | | | | | $ | 805 | | |
| , 2021 | | | By Order of the Longevity Board | |
| | | |
/s/
Chairman of Longevity Board, Chief Financial Officer
|
|
|
Longevity Acquisition Corporation
Yongda International Tower No. 2277 Longyang Road, Pudong District, Shanghai People’s Republic of China |
| |
4D Pharma PLC
5th Floor, 9 Bond Court Leeds, LS1 2JZ United Kingdom ir@4dpharmaplc.com |
|
| | | | | 10 | | | |
| | | | | 12 | | | |
| | | | | 14 | | | |
| | | | | 19 | | | |
| | | | | 20 | | | |
| | | | | 32 | | | |
| | | | | 39 | | | |
| | | | | 40 | | | |
| | | | | 41 | | | |
| | | | | 100 | | | |
| | | | | 102 | | | |
| | | | | 103 | | | |
| | | | | 111 | | | |
| | | | | 115 | | | |
| | | | | 128 | | | |
| | | | | 141 | | | |
| | | | | 143 | | | |
| | | | | 144 | | | |
| | | | | 153 | | | |
| | | | | 154 | | | |
| | | | | 159 | | | |
| | | | | 165 | | | |
| | | | | 208 | | | |
| | | | | 225 | | | |
| | | | | 227 | | | |
| | | | | 235 | | | |
| | | | | 240 | | | |
| | | | | 252 | | | |
| | | | | 266 | | | |
| | | | | 279 | | | |
| | | | | 280 | | | |
| | | | | 281 | | | |
| | | | | 282 | | | |
| | | | | A-1 | | | |
| | | | | B-1 | | | |
| | | | | C-1 | | | |
| | | | | D-1 | | |
Month
|
| |
High
|
| |
Low
|
| ||||||
January 2021 (through January 25, 2021)
|
| | | | 1.3721 | | | | | | 1.3522 | | |
December 2020
|
| | | | 1.3662 | | | | | | 1.3197 | | |
November 2020
|
| | | | 1.3385 | | | | | | 1.2922 | | |
October 2020
|
| | | | 1.3143 | | | | | | 1.2890 | | |
September 2020 | | | | | 1.3416 | | | | | | 1.2706 | | |
August 2020
|
| | | | 1.3375 | | | | | | 1.3043 | | |
Year
|
| |
Average
Rate(1) |
| |||
2020 | | | | | 1.2923 | | |
2019
|
| | | | 1.2803 | | |
2018
|
| | | | 1.3309 | | |
2017
|
| | | | 1.3016 | | |
2016
|
| | | | 1.3444 | | |
|
Advantage Proxy, Inc.
P.O. Box 13581 Des Moines, WA 98198 Attn: Karen Smith Toll Free: (877) 870-8565 Collect: (206) 870-8565 |
| |
or
|
| |
Longevity
Acquisition Corporation Yongda International Tower No. 2277 Longyang Road, Pudong District, Shanghai People’s Republic of China (86) 21-60832028 |
|
U.S. dollars in thousands
|
| |
Nine months ended
November 30, 2020 |
| |
Six months ended
August 31, 2020 |
| |
Year Ended
February 29, 2020 |
| |||||||||
Operating costs
|
| | | $ | 567 | | | | | $ | 370 | | | | | $ | 1,079 | | |
Interest income
|
| | | | 47 | | | | | | 46 | | | | | | 788 | | |
Net Loss
|
| | | $ | (520) | | | | | $ | (324) | | | | | $ | (291) | | |
U.S. dollars in thousands
|
| |
As of
November 30, 2020 |
| |
As of
August 31, 2020 |
| |
As of
February 29, 2020 |
| |||||||||
Current Assets
|
| | | | 32 | | | | | | 32 | | | | | | 138 | | |
Marketable securities held in Trust Account
|
| | | | 14,608 | | | | | | 14,506 | | | | | | 42,413 | | |
Total assets
|
| | | | 14,640 | | | | | | 14,538 | | | | | | 42,551 | | |
Total liabilities
|
| | | | 3,440 | | | | | | 3,129 | | | | | | 2,762 | | |
Longevity Shares subject to possible Redemption
|
| | | | 6,200 | | | | | | 6,409 | | | | | | 34,789 | | |
Total shareholders’ equity
|
| | | | 5,000 | | | | | | 5,000 | | | | | | 5,000 | | |
| | |
Six Months Ended
June 30, (unaudited) |
| |
Year Ended
December 31, |
| ||||||||||||||||||
U.S. dollars in thousands, except share and per share data
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | | | | $ | 269 | | | | | $ | — | | |
Loss from operations
|
| | | | (17,272) | | | | | | (17,249) | | | | | | (40,261) | | | | | | (38,890) | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | | | | $ | (30,333) | | | | | $ | (32,601) | | |
Other comprehensive loss: | | | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | (2,081) | | | | | | 111 | | | | | | 1,113 | | | | | | (3,995) | | |
Comprehensive loss
|
| | | $ | (16,846) | | | | | $ | (14,587) | | | | | $ | (29,220) | | | | | $ | (36,596) | | |
Basic and diluted net loss per common share
|
| | | $ | (0.15) | | | | | $ | (0.22) | | | | | $ | (0.46) | | | | | $ | (0.50) | | |
Weighted average common shares used in computing basic and diluted net loss per common share
|
| | | | 97,647,688 | | | | | | 65,493,842 | | | | | | 65,493,842 | | | | | | 65,493,842 | | |
U.S. dollars in thousands
|
| |
As of
June 30, 2020 (unaudited) |
| |
As of
December 31, 2019 |
| ||||||
Balance Sheet Data: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 5,031 | | |
Total assets
|
| | | | 50,318 | | | | | | 40,826 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 9,639 | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (117,740) | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 31,187 | | |
| | |
4D Pharma
|
| |
Longevity
|
| |
Pro Forma
Adjustments |
| |
Pro Forma
Combined |
| ||||||||||||
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 7 | | | | | | 20,827 | | | | | $ | 33,247 | | |
Total assets
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | $ | 71,177 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 3,129 | | | | | | (7) | | | | | | 12,561 | | |
Ordinary shares subject to possible redemption
|
| | | | — | | | | | | 6,409 | | | | | | (6,409) | | | | | | — | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 5,000 | | | | | | 12,737 | | | | | | 58,616 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | $ | 71,177 | | |
U.S. dollars in thousands, except
share and per share data |
| |
Nine months ended
November 30, |
| |
Six months ended
August 31, |
| |
Year ended
February 29, |
| |
March 9, 2018
(inception) to February 28 |
| ||||||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||||||||
Income Statement Data: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |||||
Operating costs
|
| | | $ | 567 | | | | | $ | 860 | | | | | $ | 370 | | | | | $ | 570 | | | | | $ | 1,079 | | | | | $ | 439 | | |
Interest income
|
| | | | 47 | | | | | | 635 | | | | | | 46 | | | | | | 455 | | | | | | 788 | | | | | | 430 | | |
Unrealized gain (loss)
|
| | | | — | | | | | | — | | | | | | — | | | | | | 6 | | | | | | — | | | | | | (5) | | |
Net Loss
|
| | | $ | (520) | | | | | | (225) | | | | | $ | (324) | | | | | $ | (109) | | | | | $ | (291) | | | | | $ | (14) | | |
Weighted average number of
Longevity Shares outstanding, basic and diluted |
| | | | 2,007,674(3) | | | | | | 1,833,297(3) | | | | | | 1,997,943(1) | | | | | | 1,809,240(1) | | | | | | 1,859,697(1) | | | | | | 1,522,527(1) | | |
Basic and diluted net loss per
Longevity Share |
| | | $ | 0.27(4) | | | | | $ | 0.41(4) | | | | | $ | (0.17)(2) | | | | | $ | (0.28)(2) | | | | | $ | (0.50)(2) | | | | | $ | (0.25)(2) | | |
U.S. dollars in thousands
|
| |
November 30,
2020 |
| |
August 31,
2020 |
| |
February 29,
2020 |
| |||||||||
Balance Sheet Data: | | | | | | | | | | | | | | | |||||
Current Assets
|
| | | $ | 32 | | | | | $ | 32 | | | | | $ | 138 | | |
Marketable securities held in Trust Account
|
| | | $ | 14,608 | | | | | | 14,506 | | | | | | 42,413 | | |
Total assets
|
| | | $ | 14,640 | | | | | | 14,538 | | | | | | 42,551 | | |
Longevity Shares subject to possible Redemption
|
| | | | 6,200 | | | | | | 6,409 | | | | | | 34,789 | | |
Total shareholders’ equity
|
| | | | 5,000 | | | | | | 5,000 | | | | | | 5,000 | | |
| | |
Six Months Ended
June 30, (unaudited) |
| |
Year Ended
December 31, |
| ||||||||||||||||||
U.S. dollars in thousands, except share and per share data
|
| |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | | | | $ | 269 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | |
Research and development expenses
|
| | | | 13,493 | | | | | | 11,701 | | | | | | 29,193 | | | | | | 27,830 | | |
General and administrative expenses
|
| | | | 5,509 | | | | | | 5,400 | | | | | | 10,380 | | | | | | 11,294 | | |
Foreign currency losses (gains)
|
| | | | (1,491) | | | | | | 148 | | | | | | 957 | | | | | | (234) | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 17,249 | | | | | | 40,530 | | | | | | 38,890 | | |
Loss from operations
|
| | | | (17,272) | | | | | | (17,249) | | | | | | (40,261) | | | | | | (38,890) | | |
Other income (expense), net:
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 84 | | | | | | 78 | | | | | | 379 | | |
Interest expense
|
| | | | (1) | | | | | | (1) | | | | | | — | | | | | | (3) | | |
Other income
|
| | | | 2,502 | | | | | | 2,720 | | | | | | 6,883 | | | | | | 6,378 | | |
Change in fair value of contingent consideration payable
|
| | | | — | | | | | | (252) | | | | | | 2,967 | | | | | | (465) | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 2,551 | | | | | | 9,928 | | | | | | 6,289 | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | | | | $ | (30,333) | | | | | $ | (32,601) | | |
Other comprehensive loss: | | | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | (2,081) | | | | | | 111 | | | | | | 1,113 | | | | | | (3,995) | | |
Comprehensive loss
|
| | | $ | (16,846) | | | | | $ | (14,587) | | | | | $ | (29,220) | | | | | $ | (36,596) | | |
Basic and diluted net loss per common share
|
| | | $ | (0.15) | | | | | $ | (0.22) | | | | | $ | (0.46) | | | | | $ | (0.50) | | |
Weighted average common shares used in computing basic and diluted net loss per common share
|
| | | | 97,647,688 | | | | | | 65,493,842 | | | | | | 65,493,842 | | | | | | 65,493,842 | | |
U.S. dollars in thousands
|
| |
As of
June 30, 2020 (unaudited) |
| |
As of
December 31, 2019 |
| ||||||
Balance Sheet Data: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 5,031 | | |
Total assets
|
| | | | 50,318 | | | | | | 40,826 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 9,639 | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (117,740) | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 31,187 | | |
| | |
Historical
June 30, 2020 |
| |
Historical
August 31, 2020 |
| |
Pro
Forma Adjustments |
| | | | |
Pro
Forma Combined |
| ||||||||||||
| | |
4D Pharma
|
| |
Longevity
|
| |
Notes
|
| ||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 7 | | | | | | 20,827 | | | |
B, C, D, H, I, J
|
| | | $ | 33,247 | | |
Research and development tax credits receivable
|
| | | | 8,999 | | | | | | — | | | | | | — | | | | | | | | | 8,999 | | |
Prepaid expenses and other current assets
|
| | | | 4,208 | | | | | | 25 | | | | | | — | | | | | | | | | 4,233 | | |
Total current assets
|
| | | | 25,620 | | | | | | 32 | | | | | | 20,827 | | | | | | | | | 46,479 | | |
Cash and marketable securities held in Trust Account
|
| | | | — | | | | | | 14,506 | | | | | | (14,506) | | | |
I
|
| | | | — | | |
Property and equipment, net
|
| | | | 5,219 | | | | | | — | | | | | | — | | | | | | | | | 5,219 | | |
Right-of-use assets (operating leases)
|
| | | | 1,117 | | | | | | — | | | | | | — | | | | | | | | | 1,117 | | |
Intangible assets, net
|
| | | | 5,826 | | | | | | — | | | | | | — | | | | | | | | | 5,826 | | |
Goodwill
|
| | | | 12,300 | | | | | | — | | | | | | — | | | | | | | | | 12,300 | | |
Research and development tax credits receivable
|
| | | | 236 | | | | | | — | | | | | | — | | | | | | | | | 236 | | |
Total assets
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | | | | $ | 71,177 | | |
Liabilities and Stockholders’ Equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 4,012 | | | | | $ | 337 | | | | | | — | | | | | | | | $ | 4,349 | | |
Accrued expenses and other current
liabilities |
| | | | 2,160 | | | | | | — | | | | | | 2,785 | | | |
E, F, G, H
|
| | | | 4,945 | | |
Current portion of operating lease
liabilities |
| | | | 79 | | | | | | — | | | | | | — | | | | | | | | | 79 | | |
Deferred revenues, current
|
| | | | 1,252 | | | | | | — | | | | | | — | | | | | | | | | 1,252 | | |
Total current liabilities
|
| | | | 7,503 | | | | | | 337 | | | | | | 2,785 | | | | | | | | | 10,625 | | |
Convertible promissory notes – related
party |
| | | | — | | | | | | 1,792 | | | | | | (1,792) | | | |
B, C, J, K
|
| | | | — | | |
Long-term operating lease liabilities, net
|
| | | | 1,088 | | | | | | — | | | | | | — | | | | | | | | | 1,088 | | |
Deferred revenues, net
|
| | | | 644 | | | | | | — | | | | | | — | | | | | | | | | 644 | | |
Deferred tax
|
| | | | 32 | | | | | | — | | | | | | — | | | | | | | | | 32 | | |
Deferred underwriting fee payable
|
| | | | — | | | | | | 1,000 | | | | | | (1,000) | | | |
F
|
| | | | — | | |
Other liabilities
|
| | | | 172 | | | | | | — | | | | | | — | | | | | | | | | 172 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 3,129 | | | | | | (7) | | | | | | | | | 12,561 | | |
Ordinary shares subject to possible redemption
|
| | | | — | | | | | | 6,409 | | | | | | (6,409) | | | |
A
|
| | | | — | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common stock
|
| | | | 405 | | | | | | 5,629 | | | | | | (5,453) | | | |
A, D, G, L, M
|
| | | | 581 | | |
Additional paid-in capital
|
| | | | 200,775 | | | | | | — | | | | | | 17,561 | | | |
D, E, G, K, M
|
| | | | 218,336 | | |
Accumulated other comprehensive loss
|
| | | | (27,796) | | | | | | — | | | | | | — | | | | | | | | | (27,796) | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (629) | | | | | | 629 | | | |
F, L
|
| | | | (132,505) | | |
Total stockholders’ equity
|
| | | | 40,879 | | | | | | 5,000 | | | | | | 12,737 | | | | | | | | | 58,616 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 50,318 | | | | | $ | 14,538 | | | | | | 6,321 | | | | | | | | $ | 71,177 | | |
| | |
Historical
June 30, 2020 |
| |
Historical
August 31, 2020 |
| |
Pro Forma
Adjustments |
| | | | |
Pro Forma
Combined |
| ||||||||||||
| | |
4D Pharma
|
| |
Longevity
|
| |
Notes
|
| ||||||||||||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | | | | $ | — | | | | | | | | $ | 239 | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Research and development
|
| | | | 13,493 | | | | | | — | | | | | | — | | | | | | | | | 13,493 | | |
General and administrative
|
| | | | 5,509 | | | | | | 370 | | | | | | | | | | | | | | | 5,879 | | |
Foreign currency gains, net
|
| | | | (1,491) | | | | | | — | | | | | | — | | | | | | | | | (1,491) | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 370 | | | | | | | | | | | | | | | 17,881 | | |
Loss from operations
|
| | | | (17,272) | | | | | | (370) | | | | | | | | | | | | | | | (17,642) | | |
Other income (expense), net: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 46 | | | | | | — | | | | | | | | | 52 | | |
Interest expense
|
| | | | (1) | | | | | | — | | | | | | — | | | | | | | | | (1) | | |
Other income
|
| | | | 2,502 | | | | | | — | | | | | | — | | | | | | | | | 2,502 | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 46 | | | | | | — | | | | | | | | | 2,553 | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (324) | | | | | $ | | | | | | | | $ | (15,089) | | | |
Net loss per share, basic and diluted
|
| | | $ | (0.15) | | | | | $ | (0.17) | | | | | | | | | | | | | | $ | (0.10) | | |
Weighted average common shares outstanding, basic and diluted
|
| | | | 97,647,688 | | | | | | 1,997,943 | | | | | | 50,960,024 | | | |
N
|
| | | | 150,605,655 | | |
| | |
Historical
December 31, 2019 |
| |
Historical
February 29, 2020 |
| |
Pro Forma
Adjustments |
| | | | |
Pro Forma
Combined |
| ||||||||||||
| | |
4D Pharma
|
| |
Longevity
|
| |
Notes
|
| ||||||||||||||||||
Revenues
|
| | | $ | 269 | | | | | $ | — | | | | | $ | — | | | | | | | | $ | 269 | | |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Research and development
|
| | | | 29,193 | | | | | | — | | | | | | — | | | | | | | | | 29,193 | | |
General and administrative
|
| | | | 10,380 | | | | | | 1,079 | | | | | | — | | | | | | | | | 11,459 | | |
Foreign currency losses, net
|
| | | | 957 | | | | | | — | | | | | | — | | | | | | | | | 957 | | |
Total operating expenses
|
| | | | 40,530 | | | | | | 1,079 | | | | | | — | | | | | | | | | 41,609 | | |
Loss from operations
|
| | | | (40,261) | | | | | | (1,079) | | | | | | — | | | | | | | | | (41,340) | | |
Other income (expense), net: | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 78 | | | | | | 788 | | | | | | — | | | | | | | | | 866 | | |
Other income
|
| | | | 6,883 | | | | | | — | | | | | | — | | | | | | | | | 6,883 | | |
Change in fair value of contingent consideration payable
|
| | | | 2,967 | | | | | | — | | | | | | — | | | | | | | | | 2,967 | | |
Total other income (expense), net
|
| | | | 9,928 | | | | | | 788 | | | | | | — | | | | | | | | | 10,716 | | |
Net loss
|
| | | $ | (30,333) | | | | | $ | (291) | | | | | $ | — | | | | | | | | $ | (30,624) | | |
Net loss per share, basic and diluted
|
| | | $ | (0.46) | | | | | $ | (0.50) | | | | | | | | | | | | | | $ | (0.22) | | |
Weighted average common shares outstanding, basic and diluted
|
| | | | 65,493,842 | | | | | | 1,859,697 | | | | | | 70,031,052 | | | |
N
|
| | | | 137,384,591 | | |
| | |
Six Months
Ended June 30, 2020 |
| |
Year Ended
December 31, 2019 |
| ||||||
Basic and Diluted EPS: | | | | | | | | | | | | | |
As reported (4D Pharma)
|
| | | $ | (0.15) | | | | | $ | (0.46) | | |
As reported (Longevity)
|
| | | $ | (0.17) | | | | | $ | (0.50) | | |
Pro forma
|
| | | $ | (0.10) | | | | | $ | (0.22) | | |
Net loss (in thousands): | | | | | | | | | | | | | |
As reported (4D Pharma)
|
| | | $ | (14,765) | | | | | $ | (30,333) | | |
As reported (Longevity)
|
| | | $ | (324) | | | | | $ | (291) | | |
Pro forma
|
| | | $ | (15,089) | | | | | $ | (30,624) | | |
Basic and Diluted Weighted Average Shares: | | | | | | | | | | | | | |
As reported (4D Pharma)
|
| | | | 97,647,688 | | | | | | 65,493,842 | | |
As reported (Longevity)
|
| | | | 1,997,943 | | | | | | 1,859,697 | | |
Add: Application of the Exchange Ratio of 7.5315 to Longevity’s
weighted average common shares outstanding |
| | | | 13,049,564 | | | | | | 12,146,610 | | |
Add: Release of Longevity shares held for possible redemption at
Merger closing at Exchange Ratio |
| | | | 4,736,402 | | | | | | 24,710,384 | | |
Add: Issuance of ordinary shares at the Exchange Ratio for Longevity’s share rights outstanding
|
| | | | 3,253,608 | | | | | | 3,253,608 | | |
Add: Issuance of ordinary shares to Longevity backstop investors
at Merger closing at the Exchange Ratio |
| | | | 5,272,050 | | | | | | 5,272,050 | | |
Add: Issuance of ordinary shares for payment of banker’s fees at Merger Closing
|
| | | | 2,750,000 | | | | | | 2,750,000 | | |
Add: Issuance of ordinary shares in 4D Pharma’s offering after June 30, 2020
|
| | | | 21,898,400 | | | | | | 21,898,400 | | |
Pro forma
|
| | | | 150,605,655 | | | | | | 137,384,591 | | |
| | |
June 30, 2020
|
| |||
Payment of Longevity’s convertible promissory note (B)
|
| | | $ | (1,792) | | |
Record Longevity’s new promissory notes (C)
|
| | | | 2,360 | | |
Record 4D Pharma’s net proceeds from issuance of ordinary shares in July 2020(D)
|
| | | | 9,002 | | |
To reflect the payment of certain transaction costs at Merger closing (H)
|
| | | | (1,389) | | |
Release of marketable securities held in Trust Account to cash (I)
|
| | | | 14,506 | | |
Payment of one of Longevity’s new promissory notes at Merger closing (J)
|
| | | | (1,860) | | |
Total
|
| | | $ | 20,827 | | |
| | |
June 30, 2020
|
| |||
4D Pharma’s estimated stock issuance transaction costs (E)
|
| | | $ | 3,856 | | |
Longevity’s estimated transaction costs and reclass of deferred underwriting expenses (F)
|
| | | | 4,008 | | |
Payment of banker’s fee with ordinary shares at Merger closing (G)
|
| | | | (3,690) | | |
To reflect the payment of certain transaction costs at Merger closing (H)
|
| | | | (1,389) | | |
Total
|
| | | $ | 2,785 | | |
| | |
June 30, 2020
|
| |||
Payment of Longevity’s convertible promissory note (B)
|
| | | $ | (1,792) | | |
Record Longevity’s new promissory notes (C)
|
| | | | 2,360 | | |
Payment of one of Longevity’s new promissory notes at Merger closing (J)
|
| | | | (1,860) | | |
Payment of one of Longevity’s new promissory notes with issuance of ordinary shares at Merger closing (K)
|
| | | | (500) | | |
Total
|
| | | $ | (1,792) | | |
| | |
June 30, 2020
|
| |||
Conversion of Longevity’s shares subject to redemption to ordinary shares (A)
|
| | | $ | 6,409 | | |
Record 4D Pharma’s net proceeds from issuance of common stock in July 2020 (D)
|
| | | | 69 | | |
Payment of banker’s fee with ordinary shares at Merger closing (G)
|
| | | | 10 | | |
Eliminate Longevity’s pre-merger ordinary shares (L)
|
| | | | (12,038) | | |
To record the fair value of shares in the stock transaction (M)
|
| | | | 97 | | |
Total
|
| | | $ | (5,453) | | |
| | |
June 30, 2020
|
| |||
Record 4D Pharma’s net proceeds from issuance of ordinary shares in July 2020 (D)
|
| | | $ | 8,933 | | |
4D Pharma’s estimated stock issuance transaction costs (E)
|
| | | | (3,856) | | |
Payment of banker’s fee with ordinary shares at Merger closing (G)
|
| | | | 3,680 | | |
Payment of one of Longevity’s new promissory notes with issuance of ordinary shares at Merger closing (K)
|
| | | | 500 | | |
To record the issuance of shares in the stock transaction (M)
|
| | | | 8,304 | | |
Total
|
| | | $ | 17,561 | | |
| | |
June 30, 2020
|
| |||
Longevity’s estimated transaction costs (F)
|
| | | $ | (3,008) | | |
Eliminate Longevity’s pre-merger accumulated deficit balance (L)
|
| | | | 3,637 | | |
Total
|
| | | $ | 629 | | |
Target
|
| |
Business
|
| |
Reason for Termination
|
|
Company E | | | Steel smelting and new material manufacturing | | | Financial results were not consistent with forecasting | |
Company F | | | Non-ferrous metal recycling | | | Target decided to pursue capital markets other than in the U.S. | |
Company G | | | Co-working space | | | Target decided to pursue alternative funding strategies | |
Company H | | | Mobile phone distribution | | | Parties could not agree on valuation | |
Company I | | | Digital Marketing and Advertising | | | Longevity concluded that target would not meet listing qualifications for closing | |
Company J | | | Thermal energy storage (TES) clean-tech | | | Target’s financial statements did not meet the PCAOB audit requirement | |
Company K | | | New energy vehicle | | | Target decided to pursue alternative funding strategies | |
Company L | | | Automobile Manufacturing | | | Target decided to pursue alternative funding strategies | |
| | |
For the Six Months Ended
June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
| | | | | | | | |
(in thousands)
|
| | | | | | | |||||||||
Contractual commitments
|
| | | $ | 7,630 | | | | | $ | 3,790 | | | | | $ | 15,282 | | | | | $ | 9,958 | | |
Staff costs
|
| | | | 3,118 | | | | | | 3,210 | | | | | | 6,414 | | | | | | 5,906 | | |
Depreciation and amortization
|
| | | | 589 | | | | | | 490 | | | | | | 1,171 | | | | | | 1,427 | | |
Other MRx research costs
|
| | | | 1,170 | | | | | | 1,589 | | | | | | 2,695 | | | | | | 6,796 | | |
Other MDx research costs
|
| | | | 490 | | | | | | 571 | | | | | | 671 | | | | | | 1,251 | | |
Other manufacturing research and development costs
|
| | | | 496 | | | | | | 2,051 | | | | | | 2,960 | | | | | | 2,492 | | |
Total
|
| | | $ | 13,493 | | | | | $ | 11,701 | | | | | $ | 29,193 | | | | | $ | 27,830 | | |
| | |
For the Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 13,493 | | | | | | 11,701 | | |
General and administrative expenses
|
| | | | 5,509 | | | | | | 5,400 | | |
Foreign currency losses (gains)
|
| | | | (1,491) | | | | | | 148 | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 17,249 | | |
Operating loss
|
| | | | (17,272) | | | | | | (17,249) | | |
Other income (expense), net | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 84 | | |
Interest expense
|
| | | | (1) | | | | | | (1) | | |
Other income
|
| | | | 2,502 | | | | | | 2,720 | | |
Change in fair value of contingent consideration payable
|
| | | | — | | | | | | (252) | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 2,551 | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | |
| | |
For the Year Ended
December 31, |
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Revenues
|
| | | $ | 269 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 29,193 | | | | | | 27,830 | | |
General and administrative expenses
|
| | | | 10,380 | | | | | | 11,294 | | |
Foreign currency losses (gains)
|
| | | | 957 | | | | | | (234) | | |
Total operating expenses
|
| | | | 40,530 | | | | | | 38,890 | | |
Operating loss
|
| | | | (40,261) | | | | | | (38,890) | | |
Other income (expense), net | | | | | | | | | | | | | |
Interest income
|
| | | | 78 | | | | | | 379 | | |
Interest expense
|
| | | | — | | | | | | (3) | | |
Other income
|
| | | | 6,883 | | | | | | 6,378 | | |
Change in fair value of contingent consideration payable
|
| | | | 2,967 | | | | | | (465) | | |
Total other income (Expense), net
|
| | | | 9,928 | | | | | | 6,289 | | |
Net loss
|
| | | $ | (30,333) | | | | | $ | (32,601) | | |
| | |
For the Six Months Ended
June 30, |
| |
For the Year Ended
December 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||
Cash used in operating activities
|
| | | $ | (17,597) | | | | | $ | (17,011) | | | | | $ | (28,683) | | | | | $ | (30,158) | | |
Cash (used in) provided by investing activities
|
| | | | (221) | | | | | | 12,795 | | | | | | 12,283 | | | | | | 35,951 | | |
Cash provided by (used in) financing activities
|
| | | | 26,391 | | | | | | (6) | | | | | | (14) | | | | | | (13) | | |
Effect of exchange rate changes on cash and cash equivalents
|
| | | | (1,191) | | | | | | 147 | | | | | | 1,000 | | | | | | (1,386) | | |
Net increase (decrease) in cash and cash equivalents
|
| | | $ | 7,382 | | | | | | (4,075) | | | | | $ | (15,414) | | | | | $ | 4,394 | | |
| | |
Payments Due by Period
|
| |||||||||||||||||||||
Description
|
| |
Total
|
| |
Less Than
One Year |
| |
1 – 3
Years |
| |
3 – 5
Years |
| ||||||||||||
| | |
(in thousands)
|
| |||||||||||||||||||||
Operating lease obligations
|
| | | $ | 2,108 | | | | | $ | 299 | | | | | $ | 918 | | | | | $ | 891 | | |
Total
|
| | | $ | 2,108 | | | | | $ | 299 | | | | | $ | 918 | | | | | $ | 891 | | |
Name
|
| |
Age
|
| |
Position(s)
|
|
Executive Officers: | | | | | | | |
Duncan Peyton | | |
50
|
| | Chief Executive Officer, and Director | |
Alexander Stevenson | | |
49
|
| | Chief Scientific Officer, and Director | |
Richard Avison | | |
43
|
| | Group Finance Director | |
Non-Executive Directors: | | | | | | | |
Prof. Axel Glasmacher | | |
60
|
| | Non-Executive Director Chairman | |
Dr. Edgardo (Ed) Baracchini | | |
61
|
| | Non-Executive Director | |
Dr. Alexander (Sandy) Macrae | | |
58
|
| | Non-Executive Director | |
Dr. Katrin Rupalla | | |
53
|
| | Non-Executive Director | |
Name
|
| |
Base
Salary |
| |
Taxable
Benefits(1) |
| |
Pension(2)
|
| |
Total
|
| ||||||||||||
| | |
($ in thousands)
|
| |||||||||||||||||||||
Executive Officers: | | | | | | | | | | | | | | | | | | | | | | | | | |
Duncan Peyton(3)
|
| | | $ | 129.3 | | | | | $ | 2.9 | | | | | $ | — | | | | | $ | 132.2 | | |
Alexander Stevenson(4)
|
| | | | 129.3 | | | | | | 2.9 | | | | | | — | | | | | | 132.2 | | |
Non-Executive Directors: | | | | | | | | | | | | | | | | | | | | | | | | | |
Prof. Axel Glasmacher
|
| | | | 64.6 | | | | | | — | | | | | | — | | | | | | 64.6 | | |
Dr. Edgardo (Ed) Baracchini
|
| | | | 64.6 | | | | | | — | | | | | | — | | | | | | 64.6 | | |
Dr. Alexander (Sandy) Macrae
|
| | | | 64.6 | | | | | | — | | | | | | — | | | | | | 64.6 | | |
Dr. Katrin Rupalla(5)
|
| | | | 19.6 | | | | | | — | | | | | | — | | | | | | 19.6 | | |
David Norwood(6)
|
| | | | 10.6 | | | | | | — | | | | | | — | | | | | | 10.6 | | |
Thomas Engelen(7)
|
| | | | 12.2 | | | | | | — | | | | | | — | | | | | | 12.2 | | |
| | |
Amount and Nature of
Beneficial Ownership |
| |||||||||
Name of Beneficial Owner
|
| |
Number
of Shares |
| |
Percentage
Owned (%) |
| ||||||
Whale Management Corporation(2)(3)
|
| | | | 1,250,000 | | | | | | 47.6% | | |
Matthew Chen(2)(3)
|
| | | | 1,250,000 | | | | | | 47.6% | | |
Teddy Zheng(4)(5)
|
| | | | — | | | | | | *% | | |
Alex Lyamport(6)
|
| | | | — | | | | | | *% | | |
Nicholas H. Adler(7)
|
| | | | — | | | | | | *% | | |
Jerry L Hutter(8)
|
| | | | — | | | | | | *% | | |
Pai Liu(4)(9)
|
| | | | — | | | | | | *% | | |
Jun Liu(4)(10)
|
| | | | — | | | | | | *% | | |
Yukman Lau(4)(11)
|
| | | | — | | | | | | *% | | |
All directors and executive officers as a group
|
| | | | 1,250,000 | | | | | | 47.6% | | |
| | |
Amount and Nature of Beneficial Ownership
|
| |||||||||
Name of Beneficial Owner
|
| |
Number of
Shares |
| |
Percentage Owned (%)
|
| ||||||
Entities affiliated with Steven Olivera(1)
|
| | | | 20,132,188 | | | | | | 14.68% | | |
Merck & Co.(2)
|
| | | | 11,491,500 | | | | | | 8.49% | | |
Duncan Peyton(3)
|
| | | | 9,026,501 | | | | | | 6.83% | | |
Alexander Stevenson(4)
|
| | | | 8,984,562 | | | | | | 6.80% | | |
Axel Glasmacher(5)
|
| | | | 30,000 | | | | | | *% | | |
Richard Avison(6)
|
| | | | 838 | | | | | | *% | | |
Edgardo Baracchini
|
| | | | — | | | | | | *% | | |
Katrin Rupalla
|
| | | | — | | | | | | *% | | |
Sandy Macrae
|
| | | | — | | | | | | *% | | |
All directors and executive officers as a group (7 persons)(7)
|
| | | | 18,041,901 | | | | | | 13.59% | | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| Voting Rights | | |||
| | | | Under English law, a shareholder who is present in person and entitled to vote at a shareholders’ meeting is entitled to one vote on a show of hands regardless of the number of shares he or she holds. Every proxy present who has been duly appointed by a shareholder entitled to vote on the resolution has one vote. | |
| Under Longevity’s memorandum and articles of association, subject to any rights or restrictions attached to any shares, at any meeting of shareholders on a show of hands every shareholder who is present in person (or, in the case of a shareholder being a corporation, by its duly authorized representative) or by proxy shall have one vote and on a poll every shareholder present in person (or, in the case of a shareholder being a corporation, by its duly appointed representative) or by proxy shall have one vote for each share which such shareholder is the holder. Voting at any meeting of the shareholders is by show of hands unless a poll is demanded. A poll may be required if the chairman of the meeting has any doubt as to its outcome or, if the chairman does not so require, a poll may be, demanded by a shareholder present in person or by proxy if the shareholder disputes the outcome of the vote | | |
Under English law, a vote by a poll may generally be demanded by (i) not less than five shareholders having the right to vote on the resolution; or (ii) any shareholder or shareholders representing at least 10% of the total voting rights of all the shareholders having the right to vote on the resolution; or (iii) any shareholder or shareholders, holding shares conferring a right to vote on the resolution, being shares on which the aggregate sum paid up is equal to not less than 10% of the total sum paid up on all the shares.
4D Pharma’s articles of association provide that resolutions put to a vote at a shareholder meeting will be decided on a show of hands, unless a poll is demanded by:
(1)
the chairman of the meeting;
(2)
not less than five members present in person or by proxy and entitled to vote;
(3)
a member or members present in person or by proxy and representing in aggregate not less than one-tenth of the total voting rights of all the members having the right to vote; or
|
|
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| | | |
(4)
a member or members present in person or by proxy and holding shares in 4D Pharma conferring a right to vote on the resolution, being shares on which an aggregate sum has been paid up equal to not less than one-tenth of the total sum paid up on all the shares.
|
|
| | | | A demand for a poll may be withdrawn with the consent of the chairman of the meeting at any time before the close of the meeting or the taking of the poll, whichever is the earlier. A demand so withdrawn shall not invalidate the result of a show of hands declared before the demand was made. | |
| | | | Under English law an ordinary resolution means a resolution that is passed by a simple majority (i.e. not less than 50%) of those shareholders present at a general meeting in person or by proxy. A resolution passed at a meeting on a show of hands is passed by a simple majority if it is passed by a simple majority of the shareholders present in person or by proxy and entitled to vote on it. A resolution passed on a poll taken at a meeting is passed by a simple majority if it is passed by members representing a simple majority of the total voting rights of members who (being entitled to do so) vote in person or by proxy on the resolution. | |
|
There is no concept under BVI law of a “special resolution” and any resolution of shareholders may be passed by a simple majority of votes cast unless the memorandum and articles of association of a company specify a higher majority.
In relation to resolutions of shareholders, Longevity’s memorandum and articles provide that:
—
prior to the consummation of a business combination in relation to any resolution seeking to amend or vary the rights of the ordinary shares (unless such amendment or variation is for the purposes of approving, or in conjunction with, the consummation of a business combination), a resolution is passed by members holding at least 65% of the votes of the members who (being entitled to do so) vote; or
—
in all other cases, a resolution is passed by the affirmative vote of a majority of the votes of the shares being entitled to vote thereon.
|
| | Under English law a special resolution means a resolution passed by a majority of not less than 75% of those shareholders present at a general meeting in person or by proxy. A resolution passed at a meeting on a show of hands is passed by a majority of not less than 75% if it is passed by not less than 75% of the votes cast by shareholders present in person or by proxy and entitled to vote on it. A resolution passed on a poll taken at a meeting is passed by a majority of not less than 75% if it is passed by members representing not less than 75% of the total voting rights of the members who (being entitled to do so) vote in person or by proxy on the resolution. The resolution is not a special resolution unless the notice of the meeting included the text of the resolution and specified the intention to propose the resolution as a special resolution, and if the notice of the meeting so specified, the resolution may only be passed as a special resolution. | |
| Under BVI law, a shareholder entitled to attend and vote at a meeting is entitled to appoint a proxy to exercise all or any of his rights to attend, speak and vote at a meeting of shareholders of the company. | | | Under English law, any shareholder entitled to attend and vote at a meeting is entitled to appoint a proxy to exercise all or any of his rights to attend, speak and vote at a meeting of shareholders of the company. | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
| | ||
| Under BVI law, the quorum for a meeting of shareholders is that fixed by the memorandum and articles of the company or, if no such quorum is fixed, then shareholders (or their proxy) holding at least 50% of the votes constitutes a quorum for a meeting of members. Longevity’s memorandum and articles expressly adopt the basic statutory position such that a meeting of Longevity Shareholders is quorate if at the commencement of the meeting there are present in person or by proxy, shareholders entitled to exercise at least 50% of the votes. | | | Generally, under English law, two shareholders present in person or by proxy constitute a quorum for the purpose of a general meeting of shareholders, unless the company’s articles of association specify otherwise. 4D Pharma’s articles of association specify that two members present in person or by proxy and entitled to vote constitute a quorum for all purposes. | | | ||
| Shareholder Proposals and Shareholder Nominations of Directors | | | | | |||
|
Under BVI law, the directors of a company are required to convene a shareholder meeting upon written request by shareholders entitled to exercise at least 30% of the voting rights in respect of the matter for which the meeting is requested, unless the memorandum and articles of the company specify a lesser percentage.
Longevity’s memorandum and articles follow the basic position and require that the directors of Longevity shall call convene a meeting of shareholders upon the written request of shareholders entitled to exercise 30% or more of the voting rights in respect of the matter for which the meeting is requested.
The directors convening a meeting of members must give not less than 10 and not more than 60 days’ written notice of such meeting to those members who are entitled to vote at the meeting.
|
| |
Under English law, shareholders may require the directors to call a general meeting of shareholders of the company and may specify the text of a resolution be voted on at that meeting if the request is made by either: (i) shareholders holding at least 5% of the total voting rights, or (ii) by at least 100 shareholders who have a relevant right to vote and hold shares in the company on which there has been paid up an average sum, per shareholder, of at least £100.
Shareholders may also require the company to circulate to members of the company entitled to receive notice of a general meeting, a statement of not more than 1,000 words with respect to (i) a matter referred to in a proposed resolution to be dealt with at that meeting, or (ii) other business to be deal with at that meeting. A company is required to circulate such a statement once it has received requests from shareholders (in line with the thresholds outlined above).
Resolutions to appoint directors to a public company such as 4D Pharma must be put to shareholders on the basis of one resolution for each nominated director. A single resolution to appoint two or more directors must not be proposed to be voted upon at a general meeting unless a resolution that it should be so made has first been agreed to by the general meeting without any vote being given against it.
|
| | ||
| Sources and Payment of Dividends | | | |||||
|
Generally speaking, BVI law does not impose:
—
restrictions on the sources from which a company may pay a distribution; or
—
maintenance of capital rules,
similar to those under English law.
Subject to any additional restrictions in the memorandum and articles of a company, BVI law allows the directors of a company such as Longevity
|
| | Generally speaking, and subject to the prior rights of holders of any preferred shares, under English law, a company may pay dividends on its ordinary shares only out of its distributable profits (defined as accumulated, realized profits not previously utilized by distribution or capitalization, less accumulated, realized losses so far as not previously written off in a reduction or reorganization) and not out of share capital, which includes share premiums | | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
|
to authorise and pay a dividend or other distribution subject only to them satisfied on reasonable grounds that the company will, immediately after the distribution is made, satisfy the following tests (the Solvency Test):
—
the value of its assets will exceed its liabilities; and
—
it will be able to pay its debts as they fall due.
Any dividend or other distribution paid or made at a time when a company did not, immediately after the dividend or other distribution, satisfy the solvency test may be subject to “claw-back” by the company. However, the company cannot recover such a dividend or other distribution if: (i) the shareholder received it in good faith and without knowledge of the company’s failure to satisfy the solvency test; (ii) the member has altered it position in reliance on the validity of the distributions; and (iii) it would be unfair to require repayment in full or at all.
Longevity’s memorandum and articles authorize the directors of the company to pay out distributions by way of a resolution of directors provided that immediately after the distribution is made, the Company satisfies the Solvency Test.
|
| |
(paid-in surplus).
Amounts credited to the share premium account (representing the excess of the consideration for the issue of shares over the aggregate nominal amount of such shares) may not be used to pay out cash dividends but may be used, among other things, to pay up unissued shares that may then be distributed to shareholders in proportion to their holdings as fully paid bonus shares.
In addition, under English law, 4D Pharma will not be permitted to make a distribution if, at the time, the amount of its net assets is less than the aggregate of its issued and paid-up share capital and undistributable reserves.
|
|
| | | | If recommended by the 4D Pharma Board, 4D shareholders may, by ordinary resolution, declare final dividends, but no dividend may be declared in excess of the amount recommended by the 4D Pharma Board. The 4D Pharma Board has the power under 4D Pharma’s articles of association to pay interim dividends without the approval of shareholders to the extent the financial position of 4D Pharma justifies a dividend in the opinion of the 4D Pharma Board. | |
| Rights of Purchase and Redemption | | |||
|
Under BVI law, a company may issue redeemable shares if specifically authorised to do so by its memorandum and articles, subject to any conditions stated therein. Furthermore, BVI law allows a company to purchase, redeem or otherwise acquire any of the company’s shares subject to the provisions of the memorandum and articles and, to the extent not dis-applied in the BVI Companies Act. Longevity’s memorandum and article confer the company’s ability to purchase or redeem its own ordinary shares from shareholders and the possibility for preferred shares to be issued with rights of redemption.
|
| |
Under English law, a company may issue redeemable shares if specifically authorized to do so by its articles of association, subject to any conditions stated therein. 4D Pharma’s articles of association permit the issuance of redeemable shares; however, 4D Pharma has not issued any redeemable shares.
Under English law, a company may purchase its own shares in certain specific instances, including if the purchase has first been approved by a special resolution of its shareholders. 4D Pharma’s articles of association authorize 4D Pharma to purchase its own shares. A resolution passed at 4D Pharma’s annual general meeting on 30 June 2020 provides the
|
|
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
|
Under BVI law and subject to the company’s memorandum, where a company seeks to purchase, redeem or otherwise acquire its own shares the director’s of the company must be satisfied that the company will pass the Solvency Test immediately after the purchase, redemption or acquisition — unless, amongst other exceptions, the shares are redeemed pursuant to a right of the holder to have his shares redeemed or shares are fully paid and surrendered for nil consideration.
Longevity is permitted by it memorandum and articles to purchase, redeem or otherwise acquire and hold its own shares provided consent from the members whose shares are being purchased, redeemed or otherwise acquired is obtained. In certain cases, Longevity is also positively required under its memorandum and articles to redeem certain of its shares at a set price.
|
| | directors with authority to purchase up to 10% of the ordinary shares of the company in issue at the close of business on 4 June 2020, being the date of publication of the notice convening the annual general meeting. | |
| | | |
Under English law, a company may redeem or repurchase shares only if the shares are fully paid and, in the case of public companies, only out of (i) distributable profits, or (ii) the proceeds of a new issue of shares made for the purpose of the repurchase or redemption.
The U.K. Financial Conduct Authority requires that purchases of 15% or more of any class of a company’s share capital must be by way of a tender offer to all shareholders of that class and unless a tender offer is made to all holders of the class, purchases by a listed company of less than 15% of any class of its share capital pursuant to a general authority granted by its shareholders may only be made if the company complies with certain limits on the price paid for the shares.
|
|
| Meetings of Shareholders | | |||
|
Under BVI law, unless a company’s memorandum and articles prescribe a lower figure, a meeting of shareholders may be requisitioned by shareholders entitled to exercise at least 30% of the voting rights in respect of the matter for which the meeting is to be called.
Longevity’s memorandum and articles prescribe that a meeting of shareholders may be requisitioned by written request of shareholders entitled to exercise 30% or more of the voting rights.
|
| | Under English law, a general meeting of shareholders may be called by the board of directors of a company. Shareholders holding at least 5% of the paid-up capital of the company carrying voting rights at general meetings of the company may require the directors to call a general meeting of the company. The notice requirements for general meetings of the company are as follows: (i) annual general meeting: at least 21 clear days’ notice; (ii) any other general meeting: at least 14 clear days’ notice. | |
| The directors convening a meeting of shareholders must give no less than 10 and no more than 60 days’ written notice of such meeting to those members who are entitled to vote at the meeting. A meeting of shareholders held in contravention of the | | | General meetings may be called upon shorter notice with the agreement of (i) in the case of an annual general meeting, all the shareholders who are permitted to attend and vote, or (ii) in the case of any other general meeting, a majority of the | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| requirement to give notice can still be valid if members holding at least 90% of the total voting rights on all the matters to be considered at the meeting have waived notice of the meeting. | | | shareholders holding at least 95% by nominal value of the shares giving the right to attend and vote at the meeting. | |
| The inadvertent failure of a director who convenes a meeting to give notice of a meeting to a member or another director, or the fact that a member or another director has not received notice, does not invalidate the meeting. | | | “Clear days’ notice” means calendar days and excludes (i) the deemed date of receipt of the notice, and (ii) the date of the meeting itself. 4D Pharma’s articles of association provide that documents sent by first class post are deemed received 24 hours after mailing and, if not sent by first class post, 48 hours after mailing. | |
| Special Meetings of Shareholders | | |||
|
There is no concept of a “special resolution” as such under BVI law and any resolution of shareholders may be passed by a simple majority (subject to limited exceptions) of votes cast unless the company’s memorandum and articles specify a higher majority.
As noted above, in relation to resolutions of shareholders, Longevity’s memorandum and articles provide that:
—
prior to the consummation of a business combination in relation to any resolution seeking to amend or vary the rights of the ordinary shares (unless such amendment or variation is for the purposes of approving, or in conjunction with, the consummation of a business combination), a resolution is passed by members holding at least 65% of the votes of the members who (being entitled to do so) vote; or
—
in all other cases, a resolution is passed by the affirmative vote of a majority of the votes of the shares being entitled to vote thereon.
|
| |
“Special resolutions” generally involve proposals to change the name of the company, alter its capital structure, change or amend the rights of shareholders, permit the company to issue new shares for cash without applying the shareholders’ pre-emptive rights, amend the company’s articles of association, or carry out other matters where either the company’s articles of association or the U.K. Companies Act prescribe that a “special resolution” is required.
Other proposals relating to the ordinary course of the company’s business, such as the election of directors, would generally be proposed as an ordinary resolution.
|
|
| Pre-emptive Rights | | |||
|
BVI law does not confer mandatory pre-emption rights on shareholders in relation to the issue of new shares unless these are expressly adopted by the memorandum and articles of the company.
Longevity’s memorandum and articles of association do not include or adopt pre-emptive rights provisions.
Under BVI law, there is no requirement for a company to hold an annual general meeting (AGM) although an AGM may be required under the company’s M&A.
|
| | Under English law, the issuance for cash of (i) equity securities, being those shares in a company which, with respect to dividends or capital, carry a right to participate beyond a specified amount in a distribution, or (ii) rights to subscribe for or convert into equity securities, must be offered first to the existing equity shareholders in proportion to the respective nominal values of their holdings, unless a special resolution to the contrary has been passed by shareholders in a general meeting. | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
|
directors — provided that in no circumstances shall the directors have power to amend the memorandum or articles: (A) to restrict the rights or powers of the shareholders to amend the memorandum or articles; (B) to change the percentage of shareholders required to pass a resolution to amend the memorandum or articles; or (C) in circumstances where the memorandum or articles cannot be amended by the members.
Longevity’s memorandum of association allows amendments to the memorandum and articles to be made by a resolution of shareholders or by a resolution of directors, except that:
(a)
no amendment may be made by a resolution of directors in respect of: (i) any of the matters referred to at (A) through (C) above; (ii) any those provisions of the memorandum in respect of class rights; or (iii) those provisions of the articles of association of the company dealing with the date by which it must consummate its initial business combination and its obligation to redeem certain of the ordinary shares in respect therewith; and
(b)
no amendment at all may be made those provisions of the articles of association of the company dealing with the date by which it must consummate its initial business combination and its obligation to redeem certain of the ordinary shares in respect therewith unless the holders of the ordinary shares issued by Longevity in its initial public offering are given the opportunity to redeem their shares.
|
| |
English law, the board of directors is not authorized to change the articles of association. See “—Share Class Rights” below.
Amendments affecting the rights of the holders of any class of shares may, depending on the rights attached to the class and the nature of the amendments, also require approval by special resolution of the classes affected in separate class meetings. See “—Share Class Rights” below.
|
|
| Preference Shares | | |||
| Longevity’s M&A provide that the directors have the authority and the power by resolution of directors to authorise and create additional classes of shares which such rights as they may determine. Longevity currently holds ordinary and preferred shares. | | | 4D Pharma’s articles of association provide that, subject to any rights attached to existing ordinary shares, any share may be issued with or have attached to it such rights and restrictions as the company may by ordinary resolution decide or, if no such resolution has been passed or so far as the resolution does not make specific provision, as the 4D Pharma Board may decide. 4D Pharma currently has ordinary and deferred shares (which have no rights) in issue. | |
| Share Class Rights | | |||
|
Longevity’s M&A provide that:
(1)
unless the proposed variation of rights is for the purposes of approving, or in conjunction
|
| | 4D Pharma’s articles of association provide that, subject to the provisions of the U.K. Companies Act: | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
|
with, the consummation of a business combination, prior to a business combination but subject always to a resolution of shareholders, the rights attached to ordinary shares may only be varied by a resolution passed at a meeting by the holders of at least 65% of the total number of ordinary shares that have voted and are entitled to vote unless otherwise provided by the terms of issue of such class;
(2)
in the case of a proposed variation that (i) is for the purposes of approving or in conjunction with, the consummation of a business combination; or (ii) is after the consummation of a business combination, the rights attached to the ordinary shares may only be varied by a resolution passed at a meeting by the holders of more than 50% of the ordinary shares present at a meeting of members which were present at the meeting and voted; and
(3)
the rights attached to any preferred shares in issue may only be varied by resolution passed at a meeting by the holder of more than 50% of the preferred shares of the same class present at a meeting of members holding preferred shares which were present at the meeting and voted.
|
| |
(1)
all or any rights of any class of shares may only be varied with the consent in writing of holders of 75% of the nominal value of the issued shares of that class or by a special resolution passed at a separate class meeting of the holders of shares of that class;
(2)
the quorum required for the separate class meetings is at least two persons who hold, or act as proxies for, at least one third of the nominal value of the issued shares of that class, except that at any adjourned meeting one shareholder or his proxy constitutes a quorum, regardless of the number of shares that person holds;
(3)
every holder of shares of that class present in person or by proxy and entitled to vote shall be entitled, on a poll, to one vote in respect of each share held; and
(4)
a poll may be demanded at a separate class meeting by any person present in person or by proxy and entitled to vote.
|
|
| | | | Unless otherwise expressly provided by the terms of their issue, the special rights attached to any class of shares are not deemed to be varied by the creation or issue of further shares ranking equally with them. | |
| Shareholders’ Votes on Certain Transactions | | |||
|
Subject to a company’s memorandum and articles, BVI law permits a company to merge with another company provided each BVI company involved in the merger has paid its annual government filing fee and is in good standing with the Registrar of Corporate Affairs in the BVI.
In general, the directors and members of each merging BVI company will need to approve the company’s entry into the merger, unless the merger is between a parent company and its subsidiary.
|
| |
The U.K. Companies Act only permits mergers in specified limited circumstances. However,
the U.K. Companies Act provides for schemes of arrangement which are arrangements or compromises between a company and any class of shareholders or creditors. Schemes of arrangement are used in certain types of restructurings, amalgamations, capital reorganizations and takeovers.
These arrangements require:
•
the approval at a shareholders’ or creditors’ meeting convened by order of the court, of a majority in number of shareholders or creditors representing 75% in value of the capital held by, or debt owed to, the class of shareholders or creditors, or class thereof present and voting, either in person or by proxy; and
|
|
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| | | |
•
the approval of the court.
Certain other types of extraordinary transactions such as certain capital reorganizations also require approval by shareholders (either by a majority or at least 75% of the votes cast in person or by proxy, depending on the type of transaction), while other types of transactions, including asset sales and tender offers, often do not require shareholder approval.
|
|
| Rights of Inspection | | |||
|
Under BVI law, shareholders have, subject to giving written notice to the company, the right to inspect:
•
the memorandum and articles;
•
the register of members and directors; and
•
minutes of meetings and resolutions of members and those classes of members of which he is a member.
Subject to the memorandum and articles, the directors may, if they are satisfied that it would be contrary the company’s interests to allow a member to inspect any document, or part of a document, refuse to permit the member to inspect the document or limited the inspection of the document, including limiting the making of copies or the taking of extracts from the records.
A company’s memorandum and articles must be registered at the BVI Registry of Corporate Affairs and no amendment thereto or restatement thereof is itself effective unless also so registered.
|
| |
Under the U.K. Companies Act shareholders have rights of inspection, including the right to:
•
inspect and obtain copies (for a fee) of the minutes of all general meetings of the company and all resolutions of members passed other than at a general meeting;
•
inspect copies of the register of members, register of directors, register of secretaries and other statutory registers maintained by the company;
•
receive copies of the company’s annual report and accounts for each financial year; and
•
receive notices of general meetings of the company.
A company’s articles of association must be registered at Companies House and are therefore open to public inspection.
4D Pharma’s shareholders do not have any right to inspect board minutes of the company.
|
|
| Standard of Conduct for Directors | | |||
|
BVI law states a director in exercising his powers or performing his duties shall act honestly and in good faith and in what the director believes to be in the best interests of the company.
However, BVI law also provides that:
—
a director of a company that is a wholly-owned subsidiary may, when exercising powers or performing duties as a director, if expressly permitted to do so by the memorandum or articles of the company, act in a manner which he believes is the interests of its parent even if not in the best interests of the subsidiary; and
—
a director of a joint venture, when exercising powers or performing duties as a director, if expressly permitted to do so by the memorandum or articles of the company, to act in the best interests of a shareholder or
|
| |
Under English law, a director has a broad statutory duty to act in the way he or she considers, in good faith, would be most likely to promote the success of the company for the benefit of its members as a whole. In addition, there are specific obligations:
(1)
to avoid an actual or potential conflict between his duty to the company and duties to any other person or his or her own personal interests, and to declare any existing interests that may conflict with a proposed transaction or arrangement of the company;
(2)
not to accept a benefit from a third party conferred by reason of his being a director, or his doing (or not doing) anything as a director;
(3)
to act bona fide in what he or she considers is in the interests of the company as a whole, bearing in mind a number of different matters;
|
|
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
|
shareholders even if not in the best interests of the company.
Although not relevant in its present state, the articles of association of Longevity do permit its directors to regard to the interests of its holding company if it should ever become a wholly-owned subsidiary.
BVI law further states that a director, when exercising powers or performing duties as a director, shall exercise the care, diligence and skill that a reasonable director would exercise in the same circumstances, taking into account, but without limitation:
—
the nature of the company;
—
the nature of the decision; and
—
the position of the director and the nature of the responsibilities undertaken by him.
|
| |
(4)
to exercise his or her powers only in accordance with the articles of association of the company;
(5)
to exercise independent judgment; and
(6)
to exercise reasonable care, skill and diligence. This test is both subjective (i.e., was the director’s conduct that of a reasonably diligent person who has the knowledge and experience of the director) and objective (i.e., was the director’s conduct that of a reasonably diligent person having the knowledge and experience that a director holding that position should have).
4D Pharma’s articles of association provide that the 4D Pharma Board may in specified circumstances authorize any matter that would otherwise involve a director breaching his duty under the U.K.
Companies Act to avoid a conflict of interest. The articles of association also provide that, subject to authorization of such conflict, a director may retain any benefit derived by reason of that interest.
|
|
| Removal of Directors | | |||
|
Under BVI law, unless the company’s memorandum and articles state otherwise, the shareholders have the right to remove directors by resolution of shareholders.
Longevity’s M&A provide that a director may be removed from office with or without cause by:
—
(following the consummation of the initial business combination but not at an any time before) a resolution of shareholders passed at a meeting of members called for the purposes of removing the director; or
—
(immediately prior to the consummation of the initial public offering), a resolution of directors.
|
| |
Under the U.K. Companies Act, a company may remove a director without cause by ordinary resolution, irrespective of anything in any agreement between the director and the company, provided that 28 clear days’ notice of the proposed resolution to remove the director is given to the company and certain other procedural requirements under the U.K. Companies Act are followed.
4D Pharma’s articles of association provide that in addition to any power of removal conferred by the U.K. Companies Act, the company may by special resolution (i.e. a resolution approved by 75% of the votes cast in person or by proxy) remove any director before the expiration of his period of office.
|
|
| Vacancies on the Board of Directors | | |||
| Under Longevity’s memorandum and articles of association, Longevity may by a majority of the directors appoint a director to fill in any vacancy. Where the directors appoint a person as director to fill a vacancy, the term shall not exceed the term that remained when the person who ceased to be a director ceased to hold office. | | |
Under 4D Pharma’s articles of association, 4D Pharma may by ordinary resolution of its shareholders appoint a person to be a director:
(i)
to fill a casual vacancy; or
(ii)
to become an additional director,
subject to the requirement of the articles of association that there be no less than two and no more than ten directors at any time.
|
|
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| Liability of Directors and Officers | | |||
|
No provision in the memorandum or articles or in any agreement entered into by a company may relieve a director for a duty to act in accordance with his duties under the Companies Act, the memorandum and articles or from any personal liability arising from his management of the business and affairs of the company.
The Companies Act and the memorandum of articles of Longevity however allow for a director to be indemnified in respect of costs suffered in connection with proceedings relating to his position, provided that the director was acting honestly, in good faith and in the best interests of the company and, in the case of criminal proceedings, the director has no reasonable cause to believe that his conduct was unlawful.
Longevity’s memorandum and articles also permit the company to purchase and maintain insurance, purchase or furnish similar protection or make other arrangements against any liability asserted against the person and incurred by him in that capacity, whether or not the company has or would have had the power to indemnify him against the liability as provided in the memorandum and articles.
|
| |
Under the U.K. Companies Act, any provision (whether contained in a company’s articles of association or any contract or otherwise) that purports to exempt a director of a company (to any extent) from any liability that would otherwise attach to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company, is void.
Any provision by which a company directly or indirectly provides an indemnity (to any extent) for a director of the company or of an associated company against any liability attaching to him in connection with any negligence, default, breach of duty or breach of trust in relation to the company of which he is a director, is also void except as permitted by the U.K. Companies, which provides exceptions for a company to (i) purchase and maintain insurance against such liability; (ii) provide a “qualifying third party indemnity” (being an indemnity against liability incurred by the director to a person other than the company or an associated company as long as he or she is successful in defending the claim or criminal proceedings); and (iii) provide a “qualifying pension scheme indemnity” (being an indemnity against liability incurred in connection with the company’s activities as trustee of an occupational pension plan).
|
|
| | | | The U.K. Companies Act permits companies to purchase and maintain insurance for directors against any liability arising from negligence, default, breach of duty or breach of trust in relation to the company. 4D Pharma maintains directors’ and officers’ liability insurance. | |
| Disclosure of Interests | | |||
|
Under BVI law, a director of a company has a duty to disclose any interest that he may have in a transaction. Failure to do so may render the transaction to be deemed void and the director fined. Having disclosed his interest permits the intended director to attend and vote on the approval of that transaction. A director however is not required to disclose such interest if:
—
the transaction is between the director and the company; and
—
the transaction is to be entered into in the ordinary course of the company’s business and on usual terms and conditions.
|
| | The U.K. Disclosure Guidance and Transparency Rules provide that anyone who acquires a material interest, or becomes aware that he has acquired a material interest, in 3% or more of any class of shares of a public company’s issued share capital carrying rights to vote at general meetings of shareholder must notify that company in writing of his interest within two days. Thereafter, any increase or decrease of a whole percentage point and any decrease that reduces the interest to below 3% must be notified in writing to the company. This requirement applies to all 4D Pharma shareholders. | |
|
Current Rights of Longevity Shareholders
|
| |
Current Rights of 4D Shareholders
|
|
| Longevity’s memorandum and articles provide that so long as a director has disclosed his interest in the transaction, he may vote on a matter relation to the transaction. | | | 4D Pharma is required pursuant to the AIM Rules for Companies to disclose in its annual report and on its website the identity and share interests of its directors and any persons connected with them, as defined in the U.K. Companies Act, and of any person with an interest of 3% or more of 4D Pharma’s ordinary shares. | |
| | | | Pursuant to the Market Abuse Regulation (EU 596/2014), persons discharging managerial responsibilities (being directors and certain senior executives), and their connected persons, must notify a public company such as 4D Pharma in writing of the occurrence of all transactions conducted on their own account in the shares of the company, or derivatives or any other financial instruments relating to those shares within four business days of the day on which the transaction occurred. The notification must contain prescribed information, including the name of the person involved, the type of transaction, the date on which it occurred, and the price and volume of the transaction. The public company must notify a regulatory news service (which will make the information public) of any information notified to it in accordance with these provisions. The notification to a regulatory news service must be made as soon as possible and in any event by no later than the end of the business day following the receipt of the information by the company. | |
| | |
Page
|
| |||
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | |
| | |
Page
|
| |||
| | | | F-27 | | | |
| | | | F-28 | | | |
| | | | F-29 | | | |
| | | | F-30 | | | |
| | | | F-31 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 5,031 | | | | | $ | 20,445 | | |
Short-term investments and other cash deposits
|
| | | | — | | | | | | 12,958 | | |
Research and development tax credits receivable
|
| | | | 7,049 | | | | | | 5,973 | | |
Prepayments and other current assets
|
| | | | 2,705 | | | | | | 2,854 | | |
Total current assets
|
| | | | 14,785 | | | | | | 42,230 | | |
Property and equipment, net
|
| | | | | | | | | | | | |
Owned assets
|
| | | | 5,596 | | | | | | 6,196 | | |
Right-of-use asset (operating leases)
|
| | | | 1,251 | | | | | | — | | |
Intangible assets, net
|
| | | | 6,296 | | | | | | 6,358 | | |
Goodwill
|
| | | | 12,651 | | | | | | 12,625 | | |
Research and development tax credits receivable, net
|
| | | | 247 | | | | | | 174 | | |
Total assets
|
| | | $ | 40,826 | | | | | $ | 67,583 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 1,641 | | | | | $ | 2,495 | | |
Accrued expenses and other current liabilities
|
| | | | 4,235 | | | | | | 2,008 | | |
Current portion of operating lease liabilities
|
| | | | 75 | | | | | | — | | |
Contingent consideration, current
|
| | | | — | | | | | | 2,090 | | |
Deferred revenues, current
|
| | | | 538 | | | | | | — | | |
Total current liabilities
|
| | | | 6,489 | | | | | | 6,593 | | |
Long term operating lease liabilities, net
|
| | | | 1,229 | | | | | | — | | |
Contingent consideration, net
|
| | | | — | | | | | | 871 | | |
Deferred revenues, net
|
| | | | 1,720 | | | | | | — | | |
Deferred tax
|
| | | | 31 | | | | | | 33 | | |
Other liabilities
|
| | | | 170 | | | | | | 19 | | |
Total liabilities
|
| | | | 9,639 | | | | | | 7,516 | | |
Commitments and Contingencies (Note 8) | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | |
Common Stock, $0.003 par value, 87,325,042 authorized; 65,493,842 shares outstanding at December 31, 2019 and 2018
|
| | | | 266 | | | | | | 266 | | |
Additional paid in capital
|
| | | | 174,376 | | | | | | 174,036 | | |
Accumulated other comprehensive loss
|
| | | | (25,715) | | | | | | (26,828) | | |
Accumulated deficit
|
| | | | (117,740) | | | | | | (87,407) | | |
Total stockholders’ equity
|
| | | $ | 31,187 | | | | | $ | 60,067 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 40,826 | | | | | $ | 67,583 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Revenues
|
| | | $ | 269 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 29,193 | | | | | | 27,830 | | |
General and administrative expenses
|
| | | | 10,380 | | | | | | 11,294 | | |
Foreign currency losses (gains)
|
| | | | 957 | | | | | | (234) | | |
Total operating expenses
|
| | | | 40,530 | | | | | | 38,890 | | |
Loss from operations
|
| | | | (40,261) | | | | | | (38,890) | | |
Other income (expense), net: | | | | | | | | | | | | | |
Interest income
|
| | | | 78 | | | | | | 379 | | |
Interest expense
|
| | | | — | | | | | | (3) | | |
Other income
|
| | | | 6,883 | | | | | | 6,378 | | |
Change in fair value of contingent consideration payable
|
| | | | 2,967 | | | | | | (465) | | |
Total other income (expense), net
|
| | | | 9,928 | | | | | | 6,289 | | |
Net loss
|
| | | | (30,333) | | | | | | (32,601) | | |
Other comprehensive income (loss) | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | 1,113 | | | | | | (3,995) | | |
Comprehensive loss
|
| | | $ | (29,220) | | | | | $ | (36,596) | | |
Net loss per common share, basic and diluted
|
| | | $ | (0.46) | | | | | $ | (0.50) | | |
Weighted-average number of common shares used in computing basic and diluted net loss per common share
|
| | | | 65,493,842 | | | | | | 65,493,842 | | |
| | |
Common stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Other Comprehensive Loss |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance, December 31, 2017
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 173,673 | | | | | $ | (22,833) | | | | | $ | (54,806) | | | | | $ | 96,300 | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (3,995) | | | | | | | | | | | | (3,995) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (32,601) | | | | | | (32,601) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 363 | | | | | | — | | | | | | — | | | | | | 363 | | |
Balance, December 31, 2018
|
| | | | 65,493,842 | | | | | | 266 | | | | | | 174,036 | | | | | | (26,828) | | | | | | (87,407) | | | | | | 60,067 | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,113 | | | | | | — | | | | | | 1,113 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (30,333) | | | | | | (30,333) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 340 | | | | | | — | | | | | | — | | | | | | 340 | | |
Balance, December 31, 2019
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,376 | | | | | $ | (25,715) | | | | | $ | (117,740) | | | | | $ | 31,187 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (30,333) | | | | | $ | (32,601) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 1,644 | | | | | | 1,614 | | |
Stock based compensation
|
| | | | 340 | | | | | | 363 | | |
Change in fair value of contingent consideration
|
| | | | (2,967) | | | | | | 465 | | |
Other non-cash expenses
|
| | | | 74 | | | | | | 1 | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Prepayments and other current assets
|
| | | | 168 | | | | | | 2,735 | | |
Research and development tax credits receivable
|
| | | | (939) | | | | | | (1,678) | | |
Accounts payable
|
| | | | (903) | | | | | | 163 | | |
Deferred revenues
|
| | | | 2,197 | | | | | | — | | |
Operating lease obligations
|
| | | | (148) | | | | | | — | | |
Other liabilities and accrued expenses
|
| | | | 2,184 | | | | | | (1,220) | | |
Net cash used in operating activities
|
| | | | (28,683) | | | | | | (30,158) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Purchase of software and intangibles
|
| | | | (73) | | | | | | (5) | | |
Purchase of property and equipment
|
| | | | (681) | | | | | | (721) | | |
Acquisition of subsidiary net of cash acquired
|
| | | | — | | | | | | (887) | | |
Proceeds on disposal of assets
|
| | | | 55 | | | | | | — | | |
Maturities of short-term investments
|
| | | | 12,982 | | | | | | 37,564 | | |
Net cash provided by investing activities
|
| | | | 12,283 | | | | | | 35,951 | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Lease liability payments
|
| | | | (14) | | | | | | (13) | | |
Net cash used in financing activities
|
| | | | (14) | | | | | | (13) | | |
Effect of exchange rate changes on cash and cash equivalents
|
| | | | 1,000 | | | | | | (1,386) | | |
Change in cash and cash equivalents
|
| | | | (15,414) | | | | | | 4,394 | | |
Cash and cash equivalents at beginning of year
|
| | | | 20,445 | | | | | | 16,051 | | |
Cash and cash equivalents at end of year
|
| | | $ | 5,031 | | | | | $ | 20,445 | | |
Supplemental disclosures of non-cash investing and financing activities | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | 230 | | | | | $ | 1 | | |
Lease liabilities from obtaining right-of-use assets
|
| | | $ | 1,446 | | | | | $ | — | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Prepayments
|
| | | $ | 1,465 | | | | | $ | 1,590 | | |
VAT receivables
|
| | | | 980 | | | | | | 895 | | |
Other assets — goods to be consumed in R&D activities
|
| | | | 260 | | | | | | 369 | | |
| | | | $ | 2,705 | | | | | $ | 2,854 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Cost
|
| | | | | | | | | | | | |
Property and machinery
|
| | | $ | 7,852 | | | | | $ | 7,361 | | |
Fixtures, fittings and office equipment
|
| | | | 282 | | | | | | 274 | | |
Land and buildings
|
| | | | 2,983 | | | | | | 1,462 | | |
Total cost
|
| | | | 11,117 | | | | | | 9,097 | | |
Accumulated depreciation
|
| | | | 4,270 | | | | | | 2,901 | | |
Total property and equipment, net
|
| | | $ | 6,847 | | | | | $ | 6,196 | | |
|
Balance at January 1, 2018
|
| | | $ | 13,325 | | |
|
Translation differences
|
| | | | (700) | | |
|
Balance at December 31, 2018
|
| | | | 12,625 | | |
|
Translation differences
|
| | | | 26 | | |
|
Balance at December 31, 2019
|
| | | $ | 12,651 | | |
| | |
December 31, 2019
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross amount beginning of period
|
| | | $ | 428 | | | | | $ | 1,377 | | | | | $ | 5,740 | | | | | $ | 7,545 | | |
Additions
|
| | | | 75 | | | | | | — | | | | | | — | | | | | | 75 | | |
Translation differences
|
| | | | 6 | | | | | | 41 | | | | | | 170 | | | | | | 217 | | |
Gross amount end of period
|
| | | | 509 | | | | | | 1,418 | | | | | | 5,910 | | | | | | 7,837 | | |
Disposals
|
| | | | (144) | | | | | | | | | | | | | | | | | | (144) | | |
Accumulated amortization
|
| | | | (232) | | | | | | (1,165) | | | | | | — | | | | | | (1,397) | | |
Net Book value
|
| | | $ | 133 | | | | | $ | 253 | | | | | $ | 5,910 | | | | | $ | 6,296 | | |
| | |
December 31, 2018
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross amount beginning of period
|
| | | $ | 448 | | | | | $ | 1,462 | | | | | $ | 6,097 | | | | | $ | 8,007 | | |
Additions
|
| | | | 5 | | | | | | — | | | | | | — | | | | | | 5 | | |
Translation differences
|
| | | | (25) | | | | | | (85) | | | | | | (357) | | | | | | (467) | | |
Gross amount end of period
|
| | | | 428 | | | | | | 1,377 | | | | | | 5,740 | | | | | | 7,545 | | |
Accumulated amortization
|
| | | | (224) | | | | | | (963) | | | | | | — | | | | | | (1,187) | | |
Net Book value
|
| | | $ | 204 | | | | | $ | 414 | | | | | $ | 5,740 | | | | | $ | 6,358 | | |
Year
|
| | | | | | |
2020
|
| | | $ | 261 | | |
2021
|
| | | | 109 | | |
2022
|
| | | | 16 | | |
Total
|
| | | $ | 386 | | |
| | |
December 31,
2019 |
| |||
Assets | | | | | | | |
Land and Buildings
|
| | | $ | 1,251 | | |
Liabilities
|
| | | | | | |
Current portion of operating lease liabilities
|
| | | | 75 | | |
Long term operating lease liabilities, net
|
| | | | 1,229 | | |
| | | | $ | 1,304 | | |
Weighted-average remaining lease term (years)
|
| | | | 7 | | |
Weighted-average discount rate
|
| | | | 13.6% | | |
| | |
December 31,
2019 |
| |||
2020
|
| | | $ | 299 | | |
2021
|
| | | | 300 | | |
2022
|
| | | | 301 | | |
2023
|
| | | | 317 | | |
2024
|
| | | | 319 | | |
Thereafter
|
| | | | 572 | | |
Total lease payments
|
| | | | 2,108 | | |
Less: Imputed interest
|
| | | | (804) | | |
| | | | $ | 1,304 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Clinical trials accrued expenses
|
| | | $ | 2,561 | | | | | $ | 635 | | |
Patents and other research accruals
|
| | | | 428 | | | | | | 360 | | |
Accrued payroll expenses
|
| | | | 161 | | | | | | 124 | | |
Building and office accruals
|
| | | | 273 | | | | | | 208 | | |
Tax accruals
|
| | | | 334 | | | | | | 354 | | |
Deferred grant income
|
| | | | 52 | | | | | | — | | |
Short-term finance lease
|
| | | | 14 | | | | | | 14 | | |
Other accrued expenses
|
| | | | 412 | | | | | | 313 | | |
| | | | $ | 4,235 | | | | | $ | 2,008 | | |
| | |
Number of
Options |
| |
Weighted
Average Exercise Price |
| |
Non-Vested
Options |
| |
Weighted
Average Grant date Fair Value |
| | ||||||||||||||
Outstanding at December 31, 2017
|
| | | | 341,462 | | | | | $ | 0.0033 | | | | | | 341,462 | | | | | $ | 6.29 | | | | | |
Granted
|
| | | | 746,779 | | | | | | 0.0033 | | | | | | 746,779 | | | | | | 4.15 | | | | | |
Exercised
|
| | | | — | | | | | | 0.0033 | | | | | | — | | | | | | | | | | | |
Expired/cancelled
|
| | | | (40,909) | | | | | | 0.0033 | | | | | | (40,909) | | | | | | 11.63 | | | | ||
Outstanding at December 31, 2018
|
| | | | 1,047,332 | | | | | | 0.0033 | | | | | | 1,047,332 | | | | | | 2.88 | | | | | |
Granted
|
| | | | 538,596 | | | | | | 0.0033 | | | | | | 538,596 | | | | | | 1.16 | | | | ||
Exercised
|
| | | | — | | | | | | 0.0033 | | | | | | — | | | | | | — | | | | ||
Vested
|
| | | | — | | | | | | 0.0033 | | | | | | (9,686) | | | | | | 11.18 | | | | ||
Expired/cancelled
|
| | | | (660,340) | | | | | | 0.0033 | | | | | | (660,340) | | | | | | 3.01 | | | | ||
Outstanding at December 31, 2019
|
| | | | 925,588 | | | | | $ | 0.0033 | | | | | | 915,902 | | | | | | 1.68 | | | | | |
Options exercisable
|
| | | | 9,686 | | | | | $ | 0.0033 | | | | | | | | | | | | | | | | ||
Options vested
|
| | | | 9,686 | | | | | $ | 0.0033 | | | | | | | | | | | | | | | | | |
Options expected to vest
|
| | | | 73,540 | | | | | $ | 0.0033 | | | | | | | | | | | | | | | | | |
| | |
December 31,
|
| |||
| | |
2019
|
| |
2018
|
|
Risk-free interest rate
|
| |
0.57%
|
| |
0.72%
|
|
Expected volatility
|
| |
69.62%
|
| |
54.95%
|
|
Expected dividend yield
|
| |
0.00%
|
| |
0.00%
|
|
Expected term (in years)
|
| |
3 years
|
| |
3 years
|
|
| | |
Current
Portion |
| |
Long-term
Portion |
| |
Total Contingent
Consideration |
| |||||||||
Balance, January 1, 2018
|
| | | $ | — | | | | | $ | 2,677 | | | | | $ | 2,677 | | |
Change in fair value
|
| | | | 2,205 | | | | | | (1,740) | | | | | | 465 | | |
Translation differences
|
| | | | (115) | | | | | | (66) | | | | | | (181) | | |
Balance, December 31, 2018
|
| | | $ | 2,090 | | | | | $ | 871 | | | | | $ | 2,961 | | |
Change in fair value
|
| | | | (2,094) | | | | | | (873) | | | | | | (2,967) | | |
Translation differences
|
| | | | 4 | | | | | | 2 | | | | | | 6 | | |
Balance, December 31, 2019
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Loss before income taxes arising in UK
|
| | | $ | 27,751 | | | | | $ | 30,364 | | |
Loss before income taxes arising in Ireland
|
| | | | 1,539 | | | | | | 1,693 | | |
Loss/(profit) before income taxes arising in Spain
|
| | | | 1,043 | | | | | | 544 | | |
Loss before income taxes arising in United States
|
| | | | — | | | | | | — | | |
Total loss before income tax
|
| | | $ | 30,333 | | | | | $ | 32,601 | | |
| | |
December 31,
|
| |||||||||||||||||||||
| | |
2019
|
| |
2018
|
| ||||||||||||||||||
Loss before income taxes
|
| | | $ | (30,333) | | | | | | % | | | | | $ | (32,601) | | | | | | % | | |
Expected tax benefit
|
| | | | (5,785) | | | | | | (19.1)% | | | | | | (6,087) | | | | | | (18.7)% | | |
Foreign tax differential
|
| | | | (69) | | | | | | (0.2)% | | | | | | 4 | | | | | | 0.0% | | |
Change in valuation allowance
|
| | | | 5,784 | | | | | | 19.1% | | | | | | 6,057 | | | | | | 18.6% | | |
Other
|
| | | | 70 | | | | | | 0.2% | | | | | | 26 | | | | | | 0.1% | | |
Actual income tax benefit
|
| | | $ | — | | | | | | 0% | | | | | $ | — | | | | | | 0% | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Net operating tax loss carried forwards
|
| | | $ | 59,566 | | | | | $ | 40,711 | | |
Fair value adjustment on acquisitions
|
| | | | (119) | | | | | | (116) | | |
Valuation allowance
|
| | | | (59,478) | | | | | | (40,628) | | |
Net deferred tax liability
|
| | | $ | (31) | | | | | $ | (33) | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
UK research and development tax credits
|
| | | $ | 6,565 | | | | | $ | 6,173 | | |
Irish research and development tax credits
|
| | | | 373 | | | | | | 306 | | |
Translation differences
|
| | | | 358 | | | | | | (332) | | |
Total
|
| | | | 7,296 | | | | | | 6,147 | | |
Less: current portion
|
| | | | (7,049) | | | | | | (5,973) | | |
Research and development tax credits receivable, net
|
| | | $ | 247 | | | | | $ | 174 | | |
| | |
June 30, 2020
|
| |
December 31, 2019
|
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 12,413 | | | | | $ | 5,031 | | |
Research and development tax credits receivable
|
| | | | 8,999 | | | | | | 7,049 | | |
Prepayments and other current assets
|
| | | | 4,208 | | | | | | 2,705 | | |
Total current assets
|
| | | | 25,620 | | | | | | 14,785 | | |
Property and equipment, net
|
| | | | | | | | | | | | |
Owned assets
|
| | | | 5,219 | | | | | | 5,596 | | |
Right-of-use asset (operating leases)
|
| | | | 1,117 | | | | | | 1,251 | | |
Intangible assets, net
|
| | | | 5,826 | | | | | | 6,296 | | |
Goodwill
|
| | | | 12,300 | | | | | | 12,651 | | |
Research and development tax credits receivable, net
|
| | | | 236 | | | | | | 247 | | |
Total assets
|
| | | $ | 50,318 | | | | | $ | 40,826 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 4,012 | | | | | $ | 1,641 | | |
Accrued expenses and other current liabilities
|
| | | | 2,160 | | | | | | 4,235 | | |
Current portion of operating lease liabilities
|
| | | | 79 | | | | | | 75 | | |
Deferred revenues, current
|
| | | | 1,252 | | | | | | 538 | | |
Total current liabilities
|
| | | | 7,503 | | | | | | 6,489 | | |
Long term operating lease liabilities, net
|
| | | | 1,088 | | | | | | 1,229 | | |
Deferred revenues, net
|
| | | | 644 | | | | | | 1,720 | | |
Deferred tax
|
| | | | 32 | | | | | | 31 | | |
Other liabilities
|
| | | | 172 | | | | | | 170 | | |
Total liabilities
|
| | | | 9,439 | | | | | | 9,639 | | |
Commitments and Contingencies (Note 8) | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | |
Common Stock, $0.003 par value, 167,991,442 authorized; 109,493,842 and
65,493,842 shares outstanding at June 30, 2020 and December 31, 2019, respectively |
| | | | 405 | | | | | | 266 | | |
Additional paid in capital
|
| | | | 200,775 | | | | | | 174,376 | | |
Accumulated other comprehensive loss
|
| | | | (27,796) | | | | | | (25,715) | | |
Accumulated deficit
|
| | | | (132,505) | | | | | | (117,740) | | |
Total stockholders’ equity
|
| | | $ | 40,879 | | | | | $ | 31,187 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 50,318 | | | | | $ | 40,826 | | |
| | |
For the Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Revenues
|
| | | $ | 239 | | | | | $ | — | | |
Operating expenses: | | | | | | | | | | | | | |
Research and development
|
| | | | 13,493 | | | | | | 11,701 | | |
General and administrative expenses
|
| | | | 5,509 | | | | | | 5,400 | | |
Foreign currency losses (gains)
|
| | | | (1,491) | | | | | | 148 | | |
Total operating expenses
|
| | | | 17,511 | | | | | | 17,249 | | |
Loss from operations
|
| | | | (17,272) | | | | | | (17,249) | | |
Other income (expense), net: | | | | | | | | | | | | | |
Interest income
|
| | | | 6 | | | | | | 84 | | |
Interest expense
|
| | | | (1) | | | | | | (1) | | |
Other income
|
| | | | 2,502 | | | | | | 2,720 | | |
Change in fair value of contingent consideration payable
|
| | | | — | | | | | | (252) | | |
Total other income (expense), net
|
| | | | 2,507 | | | | | | 2,551 | | |
Net loss
|
| | | | (14,765) | | | | | | (14,698) | | |
Other comprehensive income (loss) | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | (2,081) | | | | | | 111 | | |
Comprehensive loss
|
| | | $ | (16,846) | | | | | $ | (14,587) | | |
Net loss per common share, basic and diluted
|
| | | $ | (0.15) | | | | | $ | (0.22) | | |
Weighted-average number of common shares used in computing basic and diluted net loss per common share
|
| | | | 97,647,688 | | | | | | 65,493,842 | | |
| | |
Common stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Other Comprehensive Loss |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance, January 1, 2020
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,376 | | | | | $ | (25,715) | | | | | $ | (117,740) | | | | | $ | 31,187 | | |
Issuance of common stock, net
|
| | | | 44,000,000 | | | | | | 139 | | | | | | 22,990 | | | | | | — | | | | | | — | | | | | | 23,129 | | |
Issuance of warrants
|
| | | | — | | | | | | — | | | | | | 3,270 | | | | | | — | | | | | | — | | | | | | 3,270 | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (2,081) | | | | | | — | | | | | | (2,081) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (14,765) | | | | | | (14,765) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 139 | | | | | | — | | | | | | — | | | | | | 139 | | |
Balance, June 30, 2020
|
| | | | 109,493,842 | | | | | $ | 405 | | | | | $ | 200,775 | | | | | $ | (27,796) | | | | | $ | (132,505) | | | | | $ | 40,879 | | |
| | |
Common stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Other Comprehensive Loss |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance, January 1, 2019
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,036 | | | | | $ | (26,828) | | | | | $ | (87,407) | | | | | $ | 60,067 | | |
Other comprehensive loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | 111 | | | | | | — | | | | | | 111 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (14,698) | | | | | | (14,698) | | |
Share-based compensation
|
| | | | — | | | | | | — | | | | | | 696 | | | | | | — | | | | | | — | | | | | | 696 | | |
Balance, June 30, 2019
|
| | | | 65,493,842 | | | | | $ | 266 | | | | | $ | 174,732 | | | | | $ | (26,717) | | | | | $ | (102,105) | | | | | $ | 46,176 | | |
| | |
For the Six Months Ended June 30,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (14,765) | | | | | $ | (14,698) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 784 | | | | | | 879 | | |
Stock based compensation
|
| | | | 139 | | | | | | 696 | | |
Change in fair value of contingent consideration
|
| | | | — | | | | | | 252 | | |
Other non-cash expenses
|
| | | | 15 | | | | | | 88 | | |
Changes in assets and liabilities: | | | | | | | | | | | | | |
Prepayments and other current assets
|
| | | | (1,685) | | | | | | (789) | | |
Research and development tax credits receivable
|
| | | | (2,392) | | | | | | (2,699) | | |
Accounts payable
|
| | | | 2,509 | | | | | | (519) | | |
Deferred revenues
|
| | | | (240) | | | | | | — | | |
Operating lease obligations
|
| | | | (91) | | | | | | (61) | | |
Other liabilities and accrued expenses
|
| | | | (1,871) | | | | | | (160) | | |
Net cash used in operating activities
|
| | | | (17,597) | | | | | | (17,011) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Purchase of software and intangibles
|
| | | | (19) | | | | | | (23) | | |
Purchase of property and equipment
|
| | | | (202) | | | | | | (345) | | |
Maturities of short-term investments
|
| | | | — | | | | | | 13,163 | | |
Net cash (used in) provided by investing activities
|
| | | | (221) | | | | | | 12,795 | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Net proceeds from issuance of common stock
|
| | | | 23,129 | | | | | | — | | |
Issuance of warrants
|
| | | | 3,270 | | | | | | — | | |
Lease liability payments
|
| | | | (8) | | | | | | (6) | | |
Net cash provided by (used in) financing activities
|
| | | | 26,391 | | | | | | (6) | | |
Effect of exchange rate changes on cash and cash equivalents
|
| | | | (1,191) | | | | | | 147 | | |
Change in cash and cash equivalents
|
| | | | 7,382 | | | | | | (4,075) | | |
Cash and cash equivalents at beginning of year
|
| | | | 5,031 | | | | | | 20,445 | | |
Cash and cash equivalents at end of year
|
| | | $ | 12,413 | | | | | $ | 16,370 | | |
Supplemental disclosures of non-cash investing and financing activities | | | | | | | | | | | | | |
Cash paid for interest
|
| | | $ | 110 | | | | | $ | 117 | | |
Lease liabilities from obtaining right-of-use assets
|
| | | $ | — | | | | | $ | 1,466 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Prepayments
|
| | | $ | 2,533 | | | | | $ | 1,465 | | |
VAT receivables
|
| | | | 1,187 | | | | | | 980 | | |
Other assets — goods to be consumed in R&D activities
|
| | | | 488 | | | | | | 260 | | |
| | | | $ | 4,208 | | | | | $ | 2,705 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Cost
|
| | | | | | | | | | | | |
Property and machinery
|
| | | $ | 7,990 | | | | | $ | 7,852 | | |
Fixtures, fittings and office equipment
|
| | | | 267 | | | | | | 282 | | |
Land and buildings
|
| | | | 2,919 | | | | | | 2,983 | | |
Total cost
|
| | | | 11,176 | | | | | | 11,117 | | |
Accumulated depreciation
|
| | | | 4,840 | | | | | | 4,270 | | |
Total property and equipment, net
|
| | | $ | 6,336 | | | | | $ | 6,847 | | |
|
Balance at January 1, 2019
|
| | | $ | 12,625 | | |
|
Translation differences
|
| | | | 26 | | |
|
Balance at December 31, 2019
|
| | | | 12,651 | | |
|
Translation differences
|
| | | | (351) | | |
|
Balance at June 30, 2020
|
| | | $ | 12,300 | | |
| | |
June 30, 2020
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross Amount beginning of period
|
| | | $ | 365 | | | | | $ | 1,418 | | | | | $ | 5,910 | | | | | $ | 7,693 | | |
Additions
|
| | | | 18 | | | | | | — | | | | | | — | | | | | | 18 | | |
Translation differences
|
| | | | (20) | | | | | | (80) | | | | | | (330) | | | | | | (430) | | |
Gross Amount end of period
|
| | | | 363 | | | | | | 1,338 | | | | | | 5,580 | | | | | | 7,281 | | |
Accumulated amortization
|
| | | | (274) | | | | | | (1,181) | | | | | | — | | | | | | (1,455) | | |
Net Book value
|
| | | $ | 89 | | | | | $ | 157 | | | | | $ | 5,580 | | | | | $ | 5,826 | | |
| | |
December 31, 2019
|
| |||||||||||||||||||||
| | |
Software
|
| |
Patents
|
| |
Intellectual
Property |
| |
Total
|
| ||||||||||||
Gross Amount beginning of period
|
| | | $ | 428 | | | | | $ | 1,377 | | | | | $ | 5,740 | | | | | $ | 7,545 | | |
Additions
|
| | | | 75 | | | | | | — | | | | | | — | | | | | | 75 | | |
Translation differences
|
| | | | 6 | | | | | | 41 | | | | | | 170 | | | | | | 217 | | |
Gross Amount end of period
|
| | | | 509 | | | | | | 1,418 | | | | | | 5,910 | | | | | | 7,837 | | |
Disposals
|
| | | | (144) | | | | | | — | | | | | | — | | | | | | (144) | | |
Accumulated amortization
|
| | | | (232) | | | | | | (1,165) | | | | | | — | | | | | | (1,397) | | |
Net Book value
|
| | | $ | 133 | | | | | $ | 253 | | | | | $ | 5,910 | | | | | $ | 6,296 | | |
Year
|
| | | | | | |
Remaining 2020
|
| | | $ | 121 | | |
2021
|
| | | | 109 | | |
2022
|
| | | | 16 | | |
Total
|
| | | $ | 246 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
UK research and development tax credits
|
| | | $ | 8,855 | | | | | $ | 6,565 | | |
Irish research and development tax credits
|
| | | | 409 | | | | | | 373 | | |
Translation differences
|
| | | | (29) | | | | | | 358 | | |
Total
|
| | | | 9,235 | | | | | | 7,296 | | |
Less: current portion
|
| | | | (8,999) | | | | | | (7,049) | | |
Research and development tax credits receivable, net
|
| | | $ | 236 | | | | | $ | 247 | | |
| | |
June 30,
2020 |
| |
December 31,
2019 |
| ||||||
Clinical trials accrued expenses
|
| | | $ | 749 | | | | | $ | 2,561 | | |
Patents and other research accruals
|
| | | | 212 | | | | | | 428 | | |
Accrued payroll expenses
|
| | | | 247 | | | | | | 161 | | |
Building and office accruals
|
| | | | 358 | | | | | | 273 | | |
Tax accruals
|
| | | | 298 | | | | | | 334 | | |
Deferred grant income
|
| | | | 32 | | | | | | 52 | | |
Short-term finance lease
|
| | | | 11 | | | | | | 14 | | |
Other accrued expenses
|
| | | | 253 | | | | | | 412 | | |
| | | | $ | 2,160 | | | | | $ | 4,235 | | |
| | |
Amount
|
| |||
Remaining 2020
|
| | | $ | 144 | | |
2021
|
| | | | 290 | | |
2022
|
| | | | 291 | | |
2023
|
| | | | 306 | | |
2024
|
| | | | 308 | | |
Thereafter
|
| | | | 547 | | |
Total remaining lease payments
|
| | | | 1,886 | | |
Less: Imputed interest
|
| | | | (719) | | |
Total lease liabilities
|
| | | $ | 1,167 | | |
| | |
Current
Portion |
| |
Long-term
Portion |
| |
Total Contingent
Consideration |
| |||||||||
Balance, January 1, 2019
|
| | | $ | 2,090 | | | | | $ | 871 | | | | | $ | 2,961 | | |
Change in fair value
|
| | | | 178 | | | | | | 74 | | | | | | 252 | | |
Translation differences
|
| | | | (10) | | | | | | (4) | | | | | | (14) | | |
Balance, June 30, 2019
|
| | | $ | 2,258 | | | | | $ | 941 | | | | | $ | 3,199 | | |
Change in fair value
|
| | | | (2,271) | | | | | | (948) | | | | | | (3,219) | | |
Translation differences
|
| | | | 13 | | | | | | 7 | | | | | | 20 | | |
Balance, December 31, 2019
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | |
| | |
November 30,
2020 |
| |
February 29,
2020 |
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current Assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 19,330 | | | | | $ | 26,294 | | |
Prepaid expenses and other current assets
|
| | | | 12,445 | | | | | | 112,195 | | |
Total Current Assets
|
| | | | 31,775 | | | | | | 138,489 | | |
Marketable securities held in Trust Account
|
| | | | 14,607,845 | | | | | | 42,412,991 | | |
Total Assets
|
| | | $ | 14,639,620 | | | | | $ | 42,551,480 | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current Liabilities | | | | | | | | | | | | | |
Account payable and accrued expenses
|
| | | $ | 405,372 | | | | | $ | 262,877 | | |
Due to shareholders
|
| | | | 12,919 | | | | | | — | | |
Total Current Liabilities
|
| | | | 418,291 | | | | | | 262,877 | | |
Promissory note
|
| | | | 1,619,122 | | | | | | — | | |
Convertible promissory note – related party
|
| | | | 402,576 | | | | | | 1,500,000 | | |
Deferred underwriting fee payable
|
| | | | 1,000,000 | | | | | | 1,000,000 | | |
Total Liabilities
|
| | | | 3,439,989 | | | | | | 2,762,877 | | |
Commitments | | | | | | | | | | | | | |
Ordinary shares subject to possible redemption, 575,331 and 3,280,938 shares
at redemption value at November 30, 2020 and February 29, 2020, respectively |
| | | | 6,199,623 | | | | | | 34,788,598 | | |
Shareholders’ Equity | | | | | | | | | | | | | |
Preferred shares, no par value; unlimited shares authorized, none issued and outstanding
|
| | | | — | | | | | | — | | |
Ordinary shares, no par value; unlimited shares authorized; 2,050,291 and 1,989,062 shares issued and outstanding (excluding 575,331 and 3,280,938 shares subject to possible redemption) at November 30, 2020 and February 29, 2020, respectively
|
| | | | 5,825,598 | | | | | | 5,305,335 | | |
Accumulated deficit
|
| | | | (825,590) | | | | | | (305,330) | | |
Total Shareholders’ Equity
|
| | | | 5,000,008 | | | | | | 5,000,005 | | |
Total Liabilities and Shareholders’ Equity
|
| | | $ | 14,639,620 | | | | | $ | 42,551,480 | | |
| | |
Three Months Ended
November 30, |
| |
Nine Months Ended
November 30, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Operating costs
|
| | | $ | 196,646 | | | | | $ | 289,884 | | | | | $ | 566,963 | | | | | $ | 860,442 | | |
Loss from operations
|
| | | | (196,646) | | | | | | (289,884) | | | | | | (566,963) | | | | | | (860,442) | | |
Other income: | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 363 | | | | | | 180,135 | | | | | | 46,703 | | | | | | 635,133 | | |
Unrealized gain
|
| | | | — | | | | | | (6,374) | | | | | | — | | | | | | — | | |
Other income
|
| | | | 363 | | | | | | 173,761 | | | | | | 46,703 | | | | | | 635,133 | | |
Net Loss
|
| | | $ | (196,283) | | | | | $ | (116,123) | | | | | $ | (520,260) | | | | | $ | (225,309) | | |
Weighted average ordinary shares outstanding, basic
and diluted(1) |
| | | | 2,027,351 | | | | | | 1,881,942 | | | | | | 2,007,674 | | | | | | 1,833,297 | | |
Basic and diluted net loss per ordinary share(2)
|
| | | $ | (0.10) | | | | | $ | (0.14) | | | | | $ | (0.27) | | | | | $ | (0.41) | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2020
|
| | | | 1,989,062 | | | | | $ | 5,305,335 | | | | | $ | (305,330) | | | | | $ | 5,000,005 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 17,762 | | | | | | 123,843 | | | | | | — | | | | | | 123,843 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (123,839) | | | | | | (123,839) | | |
Balance – May 31, 2020
|
| | | | 2,006,824 | | | | | | 5,429,178 | | | | | | (429,169) | | | | | | 5,000,009 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,527 | | | | | | 200,139 | | | | | | — | | | | | | 200,139 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (200,138) | | | | | | (200,138) | | |
Balance – August 31, 2020
|
| | | | 2,027,351 | | | | | | 5,629,317 | | | | | | (629,307) | | | | | | 5,000,010 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 22,940 | | | | | | 196,281 | | | | | | — | | | | | | 196,281 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (196,283) | | | | | | (196,283) | | |
Balance – November 30, 2020
|
| | | | 2,050,291 | | | | | $ | 5,825,598 | | | | | $ | (825,590) | | | | | $ | 5,000,008 | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2019
|
| | | | 1,798,946 | | | | | $ | 5,014,272 | | | | | $ | (14,269) | | | | | $ | 5,000,003 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,587 | | | | | | (9,573) | | | | | | — | | | | | | (9,573) | | |
Net income
|
| | | | — | | | | | | — | | | | | | 9,571 | | | | | | 9,571 | | |
Balance – May 31, 2019
|
| | | | 1,819,533 | | | | | | 5,004,699 | | | | | | (4,698) | | | | | | 5,000,001 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 62,409 | | | | | | 118,765 | | | | | | — | | | | | | 118,765 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (118,757) | | | | | | (118,757) | | |
Balance – August 31, 2019
|
| | | | 1,881,942 | | | | | | 5,123,464 | | | | | | (123,455) | | | | | | 5,000,009 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 57,534 | | | | | | 116,117 | | | | | | — | | | | | | 116,117 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (116,123) | | | | | | (116,123) | | |
Balance – November 30, 2019
|
| | | | 1,939,476 | | | | | $ | 5,239,581 | | | | | $ | (239,578) | | | | | $ | 5,000,003 | | |
| | |
Nine Months Ended
November 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (520,260) | | | | | $ | (225,309) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Interest earned on securities held in Trust Account
|
| | | | (46,703) | | | | | | (635,133) | | |
Unrealized gain on securities held in Trust Account
|
| | | | — | | | | | | — | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | 99,750 | | | | | | (48,282) | | |
Accounts payable and accrued expenses
|
| | | | 142,495 | | | | | | 61,353 | | |
Net cash used in operating activities
|
| | | | (324,718) | | | | | | (847,371) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into Trust Account
|
| | | | (203,944) | | | | | | (800,000) | | |
Cash withdrawn from Trust Account for redemption
|
| | | | 28,055,793 | | | | | | — | | |
Net cash provided by (used in) investing activities
|
| | | | 27,851,849 | | | | | | (800,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from promissory notes
|
| | | | 1,619,122 | | | | | | — | | |
Proceeds from convertible promissory notes – related party
|
| | | | 482,576 | | | | | | 1,100,000 | | |
Repayment of convertible promissory notes – related party
|
| | | | (1,580,000) | | | | | | — | | |
Redemption of ordinary shares
|
| | | | (28,055,793) | | | | | | — | | |
Net cash (used in) provided by financing activities
|
| | | | (27,534,095) | | | | | | 1,100,000 | | |
Net Change in Cash
|
| | | | (6,964) | | | | | | (547,371) | | |
Cash – Beginning
|
| | | | 26,294 | | | | | | 639,102 | | |
Cash – Ending | | | | $ | 19,330 | | | | | $ | 91,731 | | |
Non-Cash investing and financing activities: | | | | | | | | | | | | | |
Change in value of ordinary shares subject to possible redemption
|
| | | $ | (533,182) | | | | | $ | (225,309) | | |
Due to shareholders for redemption of common stock
|
| | | $ | 12,919 | | | | | $ | (225,309) | | |
| | |
Three Months Ended
November 30, |
| |
Nine Months Ended
November 30, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Net loss
|
| | | $ | (196,283) | | | | | $ | (116,123) | | | | | $ | (520,260) | | | | | $ | (225,309) | | |
Less: Income attributable to ordinary shares subject to possible redemption
|
| | | | (154) | | | | | | (144,673) | | | | | | (19,821) | | | | | | (528,812) | | |
Adjusted net loss
|
| | | $ | (196,437) | | | | | $ | (260,796) | | | | | $ | (540,081) | | | | | $ | (754,121) | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 2,027,351 | | | | | | 1,881,942 | | | | | | 2,007,674 | | | | | | 1,833,297 | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (0.10) | | | | | $ | (0.14) | | | | | $ | (0.27) | | | | | $ | (0.41) | | |
Description
|
| |
Level
|
| |
November 30,
2020 |
| |
February 29,
2020 |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 14,607,845 | | | | | $ | 42,412,991 | | |
| Financial Statements: | | | | | | | |
| | | | | F-64 | | | |
| | | | | F-65 | | | |
| | | | | F-67 | | | |
| | | | | F-68 | | |
| | |
August 31,
2020 |
| |
February 29,
2020 |
| ||||||
| | |
(unaudited)
|
| | | | | | | |||
ASSETS | | | | | | | | | | | | | |
Current Assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 6,607 | | | | | $ | 26,294 | | |
Prepaid expenses and other current assets
|
| | | | 25,695 | | | | | | 112,195 | | |
Total Current Assets
|
| | | | 32,302 | | | | | | 138,489 | | |
Marketable securities held in Trust Account
|
| | | | 14,505,510 | | | | | | 42,412,991 | | |
Total Assets
|
| | | $ | 14,537,812 | | | | | $ | 42,551,480 | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current Liabilities | | | | | | | | | | | | | |
Account payable and accrued expenses
|
| | | $ | 337,007 | | | | | $ | 262,877 | | |
Total Current Liabilities
|
| | | | 337,007 | | | | | | 262,877 | | |
Convertible promissory note – related party
|
| | | | 1,791,972 | | | | | | 1,500,000 | | |
Deferred underwriting fee payable
|
| | | | 1,000,000 | | | | | | 1,000,000 | | |
Total Liabilities
|
| | | | 3,128,979 | | | | | | 2,762,877 | | |
Commitments | | | | | | | | | | | | | |
Ordinary shares subject to possible redemption, 599,471 and 3,280,938 shares at redemption value at August 31, 2020 and February 29, 2020, respectively
|
| | | | 6,408,823 | | | | | | 34,788,598 | | |
Shareholders’ Equity | | | | | | | | | | | | | |
Preferred shares, no par value; unlimited shares authorized, none issued and outstanding
|
| | | | — | | | | | | — | | |
Ordinary shares, no par value; unlimited shares authorized; 2,027,351 and 1,989,062 shares issued and outstanding (excluding 599,471 and 3,280,938 shares subject to possible redemption) at August 31, 2020 and February 29, 2020, respectively
|
| | | | 5,629,317 | | | | | | 5,305,335 | | |
Accumulated deficit
|
| | | | (629,307) | | | | | | (305,330) | | |
Total Shareholders’ Equity
|
| | | | 5,000,010 | | | | | | 5,000,005 | | |
Total Liabilities and Shareholders’ Equity
|
| | | $ | 14,537,812 | | | | | $ | 42,551,480 | | |
| | |
Three Months Ended August 31,
|
| |
Six Months Ended August 31,
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Operating costs
|
| | | $ | 201,425 | | | | | $ | 327,835 | | | | | $ | 370,317 | | | | | $ | 570,558 | | |
Loss from operations
|
| | | | (201,425) | | | | | | (327,835) | | | | | | (370,317) | | | | | | (570,558) | | |
Other income: | | | | | | | | | | | | | | | | | | | | | | | | | |
Interest income
|
| | | | 1,287 | | | | | | 209,002 | | | | | | 46,340 | | | | | | 454,998 | | |
Unrealized gain
|
| | | | — | | | | | | 76 | | | | | | — | | | | | | 6,374 | | |
Other income
|
| | | | 1,287 | | | | | | 209,078 | | | | | | 46,340 | | | | | | 461,372 | | |
Net Loss
|
| | | $ | (200,138) | | | | | $ | (118,757) | | | | | $ | (323,977) | | | | | $ | (109,186) | | |
Weighted average ordinary shares outstanding, basic
and diluted(1) |
| | | | 2,006,824 | | | | | | 1,819,533 | | | | | | 1,997,943 | | | | | | 1,809,240 | | |
Basic and diluted net loss per ordinary share(2)
|
| | | $ | (0.10) | | | | | $ | (0.16) | | | | | $ | (0.17) | | | | | $ | (0.28) | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2020
|
| | | | 1,989,062 | | | | | $ | 5,305,335 | | | | | $ | (305,330) | | | | | $ | 5,000,005 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 17,762 | | | | | | 123,843 | | | | | | — | | | | | | 123,843 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (123,839) | | | | | | (123,839) | | |
Balance – May 31, 2020
|
| | | | 2,006,824 | | | | | | 5,429,178 | | | | | | (429,169) | | | | | | 5,000,009 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,527 | | | | | | 200,139 | | | | | | — | | | | | | 200,139 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (200,138) | | | | | | (200,138) | | |
Balance – August 31, 2020
|
| | | | 2,027,351 | | | | | $ | 5,629,317 | | | | | $ | (629,307) | | | | | $ | 5,000,010 | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 1, 2019
|
| | | | 1,798,946 | | | | | $ | 5,014,272 | | | | | $ | (14,269) | | | | | $ | 5,000,003 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 20,587 | | | | | | (9,573) | | | | | | — | | | | | | (9,573) | | |
Net income
|
| | | | — | | | | | | — | | | | | | 9,571 | | | | | | 9,571 | | |
Balance – May 31, 2019
|
| | | | 1,819,533 | | | | | | 5,004,699 | | | | | | (4,698) | | | | | | 5,000,001 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 62,409 | | | | | | 118,765 | | | | | | — | | | | | | 118,765 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | (118,757) | | | | | | (118,757) | | |
Balance – August 31, 2019
|
| | | | 1,881,942 | | | | | $ | 5,123,464 | | | | | $ | (123,455) | | | | | $ | 5,000,009 | | |
| | |
Six Months Ended August 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (323,977) | | | | | $ | (109,186) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Interest earned on securities held in Trust Account
|
| | | | (46,340) | | | | | | (454,998) | | |
Unrealized gain on securities held in Trust Account
|
| | | | — | | | | | | (6,374) | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | 86,500 | | | | | | 49,551 | | |
Accounts payable and accrued expenses
|
| | | | 74,130 | | | | | | 21,660 | | |
Net cash used in operating activities
|
| | | | (209,687) | | | | | | (499,347) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into Trust Account
|
| | | | (101,972) | | | | | | (400,000) | | |
Cash withdrawn from Trust Account for redemption
|
| | | | 28,055,793 | | | | | | — | | |
Net cash provided by (used in) investing activities
|
| | | | 27,953,821 | | | | | | (400,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from promissory notes – related party
|
| | | | — | | | | | | 400,000 | | |
Proceeds from convertible promissory notes – related party
|
| | | | 291,972 | | | | | | — | | |
Redemption of ordinary shares
|
| | | | (28,055,793) | | | | | | — | | |
Net cash (used in) provided by financing activities
|
| | | | (27,763,821) | | | | | | 400,000 | | |
Net Change in Cash
|
| | | | (19,687) | | | | | | (499,347) | | |
Cash – Beginning
|
| | | | 26,294 | | | | | | 639,102 | | |
Cash – Ending | | | | $ | 6,607 | | | | | $ | 139,755 | | |
Non-Cash investing and financing activities: | | | | | | | | | | | | | |
Change in value of ordinary shares subject to possible redemption
|
| | | $ | (323,982) | | | | | $ | (109,192) | | |
| | |
Three Months Ended
August 31, |
| |
Six Months Ended
August 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2020
|
| |
2019
|
| ||||||||||||
Net loss
|
| | | $ | (200,138) | | | | | $ | (118,757) | | | | | $ | (323,977) | | | | | $ | (109,186) | | |
Less: Income attributable to ordinary shares subject to possible redemption
|
| | | | (474) | | | | | | (177,089) | | | | | | (17,076) | | | | | | (390,782) | | |
Adjusted net loss
|
| | | $ | (200,612) | | | | | $ | (295,846) | | | | | $ | (341,053) | | | | | $ | (499,968) | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 2,006,824 | | | | | | 1,819,533 | | | | | | 1,997,943 | | | | | | 1,809,240 | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (0.10) | | | | | $ | (0.16) | | | | | $ | (0.17) | | | | | $ | (0.28) | | |
Description
|
| |
Level
|
| |
August 31,
2020 |
| |
February 29,
2020 |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 14,505,510 | | | | | $ | 42,412,991 | | |
| | | | | F-83 | | | |
| Financial Statements: | | | | | | | |
| | | | | F-84 | | | |
| | | | | F-85 | | | |
| | | | | F-86 | | | |
| | | | | F-87 | | | |
| | | | | F-88 | | |
| | |
February 29,
2020 |
| |
February 28,
2019 |
| ||||||
ASSETS | | | | | | | | | | | | | |
Current Assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 26,294 | | | | | $ | 639,102 | | |
Prepaid expenses and other current assets
|
| | | | 112,195 | | | | | | 64,079 | | |
Total Current Assets
|
| | | | 138,489 | | | | | | 703,181 | | |
Marketable securities held in Trust Account
|
| | | | 42,412,991 | | | | | | 40,425,370 | | |
Total Assets
|
| | | $ | 42,551,480 | | | | | $ | 41,128,551 | | |
LIABILITIES AND SHAREHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current Liabilities | | | | | | | | | | | | | |
Account payable and accrued expenses
|
| | | $ | 262,877 | | | | | $ | 48,887 | | |
Total Current Liabilities
|
| | | | 262,877 | | | | | | 48,887 | | |
Convertible promissory notes – related party
|
| | | | 1,500,000 | | | | | | — | | |
Deferred underwriting fee payable
|
| | | | 1,000,000 | | | | | | 1,000,000 | | |
Total Liabilities
|
| | | | 2,762,877 | | | | | | 1,048,887 | | |
Commitments | | | | | | | | | | | | | |
Ordinary shares subject to possible redemption, 3,280,938 and 3,471,054 shares at redemption value at February 29, 2020 and February 28, 2019, respectively
|
| | | | 34,788,598 | | | | | | 35,079,661 | | |
Shareholders’ Equity | | | | | | | | | | | | | |
Preferred shares, no par value; unlimited shares authorized, none issued and outstanding
|
| | | | — | | | | | | — | | |
Ordinary shares, no par value; unlimited shares authorized; 1,989,062 and 1,798,946 shares issued and outstanding (excluding 3,280,938 and 3,471,054 shares subject to possible redemption) at February 29, 2020 and February 28, 2019, respectively
|
| | | | 5,305,335 | | | | | | 5,014,272 | | |
Accumulated deficit
|
| | | | (305,330) | | | | | | (14,269) | | |
Total Shareholders’ Equity
|
| | | | 5,000,005 | | | | | | 5,000,003 | | |
Total Liabilities and Shareholders’ Equity
|
| | | $ | 42,551,480 | | | | | $ | 41,128,551 | | |
| | |
Year Ended
February 29, 2020 |
| |
For the Period from
March 9, 2018 (inception) through February 28, 2019 |
| ||||||
Operating and formation costs
|
| | | $ | 1,078,682 | | | | | $ | 439,639 | | |
Loss from operations
|
| | | | (1,078,682) | | | | | | (439,639) | | |
Other income: | | | | | | | | | | | | | |
Interest income
|
| | | | 787,621 | | | | | | 430,130 | | |
Unrealized loss
|
| | | | — | | | | | | (4,760) | | |
Other income, net
|
| | | | 787,621 | | | | | | 425,370 | | |
Net Loss
|
| | | $ | (291,061) | | | | | $ | (14,269) | | |
Weighted average ordinary shares outstanding, basic and diluted(1)
|
| | | | 1,859,697 | | | | | | 1,522,527 | | |
Basic and diluted net loss per ordinary share(2)
|
| | | $ | (0.50) | | | | | $ | (0.25) | | |
| | |
Ordinary Shares
|
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity |
| |||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||
Balance – March 9, 2018 (inception)
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of founder shares to Sponsor
|
| | | | 1,150,000 | | | | | | 25,000 | | | | | | — | | | | | | 25,000 | | |
Forfeiture of founder shares
|
| | | | (150,000) | | | | | | — | | | | | | — | | | | | | — | | |
Sale of 4,000,000 Units, net of underwriting discounts and offering expenses
|
| | | | 4,000,000 | | | | | | 37,368,833 | | | | | | — | | | | | | 37,368,833 | | |
Sale of 270,000 Private Units
|
| | | | 270,000 | | | | | | 2,700,000 | | | | | | — | | | | | | 2,700,000 | | |
Proceeds from the sale of unit purchase option
|
| | | | — | | | | | | 100 | | | | | | — | | | | | | 100 | | |
Ordinary shares subject to possible
redemption |
| | | | (3,471,054) | | | | | | (35,079,661) | | | | | | — | | | | | | (35,079,661) | | |
Net loss
|
| | |
|
—
|
| | | |
|
—
|
| | | | | (14,269) | | | | | | (14,269) | | |
Balance – February 28, 2019
|
| | | | 1,798,946 | | | | | | 5,014,272 | | | | | | (14,269) | | | | | | 5,000,003 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | | 190,116 | | | | | | 291,063 | | | | | | — | | | | | | 291,063 | | |
Net loss
|
| | |
|
—
|
| | | |
|
—
|
| | | | | (291,061) | | | | | | (291,061) | | |
Balance – February 29, 2020
|
| | | | 1,989,062 | | | | | $ | 5,305,335 | | | | | $ | (305,330) | | | | | $ | 5,000,005 | | |
| | |
Year Ended
February 29, 2020 |
| |
For the Period from
March 9, 2018 (Inception) Through February 28, 2019 |
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net loss
|
| | | $ | (291,061) | | | | | $ | (14,269) | | |
Adjustments to reconcile net loss to net cash used in operating activities:
|
| | | | | | | | | | | | |
Interest earned on securities held in Trust Account
|
| | | | (787,621) | | | | | | (430,130) | | |
Unrealized loss on securities held in Trust Account
|
| | | | — | | | | | | 4,760 | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses and other current assets
|
| | | | (48,116) | | | | | | (64,079) | | |
Accounts payable and accrued expenses
|
| | | | 213,990 | | | | | | 48,887 | | |
Net cash used in operating activities
|
| | | | (912,808) | | | | | | (454,831) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into Trust Account
|
| | | | (1,200,000) | | | | | | (40,000,000) | | |
Net cash used in investing activities
|
| | | | (1,200,000) | | | | | | (40,000,000) | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from issuance of founder shares to Sponsor
|
| | | | — | | | | | | 25,000 | | |
Proceeds from sale of Units, net of underwriting discounts paid
|
| | | | — | | | | | | 38,800,000 | | |
Proceeds from sale of Private Units
|
| | | | — | | | | | | 2,700,000 | | |
Proceeds from sale of unit purchase option
|
| | | | — | | | | | | 100 | | |
Payment of offering costs
|
| | | | — | | | | | | (431,167) | | |
Proceeds from convertible promissory notes – related party
|
| | | | 1,500,000 | | | | | | 202,415 | | |
Repayment of promissory note – related party
|
| | | | — | | | | | | (202,415) | | |
Net cash provided by financing activities
|
| | | | 1,500,000 | | | | | | 41,093,933 | | |
Net Change in Cash
|
| | | | (612,808) | | | | | | 639,102 | | |
Cash – Beginning
|
| | | | 639,102 | | | | | | — | | |
Cash – Ending | | | | $ | 26,294 | | | | | $ | 639,102 | | |
Non-Cash investing and financing activities: | | | | | | | | | | | | | |
Initial classification of ordinary shares subject to possible redemption
|
| | | $ | — | | | | | $ | 35,086,980 | | |
Change in value of ordinary shares subject to possible redemption
|
| | | $ | (291,063) | | | | | $ | (7,319) | | |
Deferred underwriting fee payable
|
| | | $ | — | | | | | $ | 1,000,000 | | |
| | |
Year Ended
February 29, 2020 |
| |
For the Period
from March 9, 2018 (inception) through February 28, 2019 |
| ||||||
Net loss
|
| | | $ | (291,061) | | | | | $ | (14,269) | | |
Less: Income attributable to ordinary shares subject to possible redemption
|
| | | | (646,007) | | | | | | (369,136) | | |
Adjusted net loss
|
| | | $ | (937,068) | | | | | $ | (383,405) | | |
Weighted average shares outstanding, basic and diluted
|
| | | | 1,859,697 | | | | | | 1,522,527 | | |
Basic and diluted net loss per ordinary share
|
| | | $ | (0.50) | | | | | $ | (0.25) | | |
Description
|
| |
Level
|
| |
February 29,
2020 |
| |
February 28,
2019 |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 42,412,991 | | | | | $ | 40,425,370 | | |
| | | | | A-2 | | | |
| | | | | A-2 | | | |
| | | | | A-2 | | | |
| | | | | A-3 | | | |
| | | | | A-3 | | | |
| | | | | A-3 | | | |
| | | | | A-3 | | | |
| | | | | A-4 | | | |
| | | | | A-5 | | | |
| | | | | A-5 | | | |
| | | | | A-5 | | | |
| | | | | A-5 | | | |
| | | | | A-5 | | | |
| | | | | A-6 | | | |
| | | | | A-6 | | | |
| | | | | A-6 | | | |
| | | | | A-7 | | | |
| | | | | A-7 | | | |
| | | | | A-8 | | | |
| | | | | A-9 | | | |
| | | | | A-9 | | | |
| | | | | A-9 | | | |
| | | | | A-9 | | | |
| | | | | A-10 | | | |
| | | | | A-10 | | | |
| | | | | A-10 | | | |
| | | | | A-10 | | | |
| | | | | A-10 | | | |
| | | | | A-10 | | | |
| | | | | A-11 | | | |
| | | | | A-11 | | | |
| | | | | A-11 | | | |
| | | | | A-11 | | | |
| | | | | A-11 | | | |
| | | | | A-11 | | | |
| | | | | A-11 | | | |
| | | | | A-12 | | |
| | | | | A-12 | | | |
| | | | | A-12 | | | |
| | | | | A-12 | | | |
| | | | | A-12 | | | |
| | | | | A-13 | | | |
| | | | | A-13 | | | |
| | | | | A-13 | | | |
| | | | | A-13 | | | |
| | | | | A-14 | | | |
| | | | | A-15 | | | |
| | | | | A-15 | | | |
| | | | | A-16 | | | |
| | | | | A-16 | | | |
| | | | | A-17 | | | |
| | | | | A-17 | | | |
| | | | | A-18 | | | |
| | | | | A-19 | | | |
| | | | | A-19 | | | |
| | | | | A-19 | | | |
| | | | | A-19 | | | |
| | | | | A-19 | | | |
| | | | | A-20 | | | |
| | | | | A-20 | | | |
| | | | | A-20 | | | |
| | | | | A-20 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-21 | | | |
| | | | | A-22 | | | |
| | | | | A-23 | | | |
| | | | | A-23 | | | |
| | | | | A-23 | | | |
| | | | | A-24 | | | |
| | | | | A-24 | | | |
| | | | | A-24 | | |
| | | | | A-24 | | | |
| | | | | A-25 | | | |
| | | | | A-25 | | | |
| | | | | A-26 | | | |
| | | | | A-26 | | | |
| | | | | A-27 | | | |
| | | | | A-27 | | | |
| | | | | A-27 | | | |
| | | | | A-27 | | | |
| | | | | A-28 | | | |
| | | | | A-28 | | | |
| | | | | A-29 | | | |
| | | | | A-30 | | | |
| | | | | A-30 | | | |
| | | | | A-31 | | | |
| | | | | A-31 | | | |
| | | | | A-32 | | | |
| | | | | A-32 | | | |
| | | | | A-32 | | | |
| | | | | A-33 | | | |
| | | | | A-33 | | | |
| | | | | A-33 | | | |
| | | | | A-34 | | | |
| | | | | A-35 | | | |
| | | | | A-35 | | | |
| | | | | A-35 | | | |
| | | | | A-35 | | | |
| | | | | A-36 | | | |
| | | | | A-36 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-37 | | | |
| | | | | A-46 | | | |
| | | | | A-46 | | | |
| | | | | A-46 | | |
| | | | | A-46 | | | |
| | | | | A-46 | | | |
| | | | | A-46 | | | |
| | | | | A-47 | | | |
| | | | | A-47 | | | |
| | | | | A-47 | | | |
| | | | | A-47 | | | |
| | | | | A-47 | | | |
| | | | | A-48 | | | |
| | | | | A-48 | | | |
| | | | | A-48 | | | |
| | | | | A-48 | | | |
| | | | | A-48 | | | |
| | | | | A-48 | | | |
| | | | | A-49 | | | |
| | | | | A-49 | | | |
| | | | | A-49 | | |
| Parent: | | |
4D PHARMA PLC
|
|
| | | |
By:
/s/ Duncan Peyton
Name: Duncan Peyton
Title: Chief Executive Officer |
|
| Merger Sub: | | |
DOLPHIN MERGER SUB LIMITED
|
|
| | | |
By:
/s/ Duncan Peyton
Name: Duncan Peyton
Title: Director |
|
| the Company: | | |
LONGEVITY ACQUISITION CORPORATION
|
|
| | | |
By:
/s/ Matthew Chen
Name: Matthew Chen
Title: Chairman and Chief Executive Officer |
|
| | | | 4D PHARMA PLC | |
| | | |
By:
/s/ Duncan Peyton
Name: Duncan Peyton
Title: Chief Executive Officer |
|
| | | | WHALE MANAGEMENT CORPORATION | |
| | | |
By:
/s/ Matthew Chen
Name: Matthew Chen
Title: Managing Member |
|
| | | | 4D PHARMA PLC | |
| | | |
By:
Name:
Title: |
|
| | | | LONGEVITY ACQUISITION CORPORATION | |
| | | |
By:
Name:
Title: |
|
| | | | WHALE MANAGEMENT CORPORATION | |
| | | |
By:
Name:
Title: |
|
| | | | [BUYER] | |
| | | |
By:
Name:
Title: |
|
|
SIGNED on behalf of
|
| | ) | |
|
LONGEVITY ACQUISITION CORPORATION
|
| | ) | |
| | | | ) | |
| Surviving Company | | | ||
|
SIGNED on behalf of
|
| | ) | |
|
DOLPHIN MERGER SUB LIMITED
|
| | ) | |
| | | | ) | |
Exhibit
Number |
| |
Exhibit Description
|
| |
Included
herein |
| |
Form
|
| |
Filing
Date |
| ||||
| | 2 | .1 | | | | | | | | | F-4 | | | 11/25/20 | | |
| | 2 | .2 | | | | | | | | | F-4 | | | 11/25/20 | | |
| | 3 | .1 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 3 | .2 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 4 | .1 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 4 | .2 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 4 | .3 | | | |
Warrant Agreement between Longevity Acquisition Corporation
and Continental Stock Transfer & Trust Company, dated August 28, 2018 |
| |
x
|
| | | | | | |
| | 4 | .4 | | | | | |
x
|
| | | | | | | |
| | 4 | .5 | | | | | |
x
|
| | | | | | | |
| | 5 | .1 | | | | | |
x
|
| | | | | | | |
| | 5 | .2 | | | | | |
x
|
| | | | | | | |
| | 8 | .1 | | | | | |
x
|
| | | | | | | |
| | 9 | .1 | | | | | | | | | F-4 | | | 11/25/20 | | |
| | 9 | .2 | | | | | | | | | F-4/A | | | 01/08/21 | | |
| | 10 | .1# | | | | | | | | | F-4/A | | | 01/08/21 | | |
| | 10 | .2# | | | | | | | | | F-4/A | | | 01/08/21 | | |
| | 10 | .3 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 10 | .4 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 10 | .5 | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 10 | .6+ | | | | | | | | | F-4/A | | | 01/27/21 | | |
| | 10 | .7+ | | | | | | | | | F-4/A | | | 01/27/21 | |
Exhibit
Number |
| |
Exhibit Description
|
| |
Included
herein |
| |
Form
|
| |
Filing
Date |
| ||||
| | 10 | .8+ | | | | | | | | |
F-4/A
|
| | 01/27/21 | | |
| | 10 | .9+ | | | | | |
x
|
| | | | | | | |
| | 10 | .10+ | | | | | |
x
|
| | | | | | | |
| | 10 | .11+ | | | | | |
x
|
| | | | | | | |
| | 10 | .12+ | | | | | | | | |
F-4/A
|
| | 01/27/21 | | |
| | 10 | .13 | | | | | | | | |
F-4/A
|
| | 01/08/21 | | |
| | 21 | .1 | | | | | | | | |
F-4/A
|
| | 01/27/21 | | |
| | 23 | .1 | | | | | |
x
|
| | | | | | | |
| | 23 | .2 | | | | | |
x
|
| | | | | | | |
| | 23 | .3 | | | | | |
x
|
| | | | | | | |
| | 23 | .4 | | | | | |
x
|
| | | | | |||
| | 23 | .5 | | | | | |
x
|
| | | | | |||
| | 24 | .1 | | | | | | | | | F-4 | | | 11/25/20 | | |
| | 99 | .1* | | | | Form of Proxy for Longevity Corporation | | | | | | | | | | |
Exhibit 4.3
WARRANT AGREEMENT
This Warrant Agreement (this “Agreement”) is made as of August 28, 2018 between Longevity Acquisition Corporation, a British Virgin Islands company, with offices at Suite 906, Tower W1, Oriental Plaza, No. 1 East Chang’an Street, Dongcheng District, Beijing, People’s Republic of China (“Company”), and Continental Stock Transfer & Trust Company, a New York corporation, with offices at One State Street, 30th Floor, New York, New York 10004 (“Warrant Agent”).
WHEREAS, the Company has received binding commitments (“Subscription Agreements”) from Whale Management Corporation (the “Sponsor”) and from Cantor Fitzgerald & Co.(the “Representative”) to purchase up to an aggregate of 270,000 units (or 288,000 if the over-allotment option is exercised in full by the underwriters), each unit (“Unit”) comprised of one Ordinary Share of the Company, no par value (“Ordinary Share”), one right to receive one-tenth (1/10) of one Ordinary Share and one warrant, each warrant exercisable to purchase one-half of one Ordinary Share for $11.50 per whole share, subject to adjustment as described herein, and in connection therewith, will issue and deliver up to an aggregate of 288,000 warrants (“Private Warrants”) upon consummation of such private placement (the “Private Offering”); and
WHEREAS, the Company is engaged in a public offering (“Public Offering”) of Units and, in connection therewith, will issue and deliver (i) up to 4,600,000 warrants (“Public Warrants”) to the public investors and (ii) 240,000 warrants (underlying a unit purchase option (“UPO”)) to the Representative or its designees (“Representative Warrants”); and
WHEREAS, in order to finance the Company’s transaction costs in connection with an intended initial Business Combination (defined below), the Sponsor or an affiliate of the Sponsor or certain of the Company’s executive officers and directors may loan to the Company funds as may be required, of which up to $1,500,000 of such loans may be convertible into up to an additional 150,000 Units (the “Working Capital Units”), and in connection therewith, will issue and deliver up to an aggregate of 150,000 warrants (the “Working Capital Warrants”); and
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “SEC”) a Registration Statement on Form S-1, No. 333-226699 (“Registration Statement”), for the registration, under the Securities Act of 1933, as amended (“Act”), of, among other securities, the Public Warrants; and
WHEREAS, following consummation of the Public Offering, the Company may issue additional warrants (“Post IPO Warrants” and together with the Public Warrants, Representative Warrants, Private Warrants and Working Capital Warrants, the “Warrants”) in connection with, or following the consummation by the Company of, a Business Combination (defined below); and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall initially be issued in registered form only. Physical certificates, if any, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by the Chairman of the Board and Chief Executive Officer of the Company and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2. Uncertificated Warrants. Notwithstanding anything herein to the contrary, any Warrant, or portion thereof, may be issued as part of, and be represented by, a Unit, Private Unit or Working Capital Unit, and any Warrant may be issued in uncertificated or book-entry form through the Warrant Agent and/or the facilities of The Depository Trust Company (the “Depository”) or other book-entry depositary system, in each case as determined by the Board of Directors of the Company or by an authorized committee thereof. Any Warrant so issued shall have the same terms, force and effect as a certificated Warrant that has been duly countersigned by the Warrant Agent in accordance with the terms of this Agreement.
2.3. Effect of Countersignature. Except with respect to uncertificated Warrants as described in Section 2.2 above, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.4. Registration.
2.4.1. Warrant Register. The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants in book-entry form, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company.
2.4.2. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with the Depository (such institution, with respect to a Warrant in its account, a “Participant”). If the Depository subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depository to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depository definitive certificates in physical form evidencing such Warrants which shall be in the form annexed hereto as Exhibit A.
2.4.3. Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant shall be registered upon the Warrant Register (“registered holder”) as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing on the Warrant Certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.5. Detachability of Warrants. The securities comprising the Units will not be separately tradeable until the fifty second (52nd) day after the date hereof unless the Representative informs the Company of its decision to allow earlier separate trading, but in no event will separate trading of the securities comprising the Units begin until (i) the Company files a Current Report on Form 8-K with the SEC which includes an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Public Offering including the proceeds received by the Company from the exercise of the over-allotment option, if the over-allotment option is exercised on the date hereof, and (ii) the Company issues a press release and files a Current Report on Form 8-K with the SEC announcing when such separate trading shall begin.
2.6. Warrant Attributes.
2.6.1 Private Warrants and Working Capital Warrants. The Private Warrants and Working Capital Warrants will be identical to the Public Warrants but they (i) will be exercisable either for cash or on a cashless basis at the holder’s option pursuant to Section 3.3.1(c), (ii) will not be redeemable by the Company, in either case as long as such warrants are held by the initial holders or their affiliates and permitted transferees (as provided below), (iii) will be subject to the transfer restrictions set forth below and (iv) may be subject to the limitations on exercise set forth in Section 3.3.2. The provisions of this Section 2.6 may not be modified, amended or deleted without the prior written consent of the Representative. Prior to the date that is 30 days following the consummation by the Company of a Business Combination (as defined below), the Private Warrants and Working Capital Warrants may only be transferred by the holders thereof:
(a) | to any persons (including their affiliates and shareholders) participating in the Private Offering, officers, directors, shareholders, employees and members of the Sponsor and its affiliates; |
(b) | amongst initial holders (as defined in the Registration Statement) or to the Company’s officers, directors and employees; |
(c) | if a holder is an entity, as a distribution to its, partners, shareholders or members upon its liquidation; |
(d) | by bona fide gift to a member of the holder’s immediate family or to a trust, the beneficiary of which is a holder or a member of a holder’s immediate family, for estate planning purposes; |
(e) | by virtue of the laws of descent and distribution upon death; |
(f) | pursuant to a qualified domestic relations order; |
(g) | by certain pledges to secure obligations incurred in connection with purchases of the Company’s securities; |
(h) | by private sales at prices no greater than the price at which the Private Warrants were originally purchased; or |
(i) | to the Company for no value for cancellation in connection with the consummation of the Company’s initial Business Combination. |
2.6.2 Representative Warrants. Subject to Section 6.4, the Representative Warrants shall have the same terms, and be in the same form, as the Public Warrants.
2.6.3 Post IPO Warrants. The Post IPO Warrants, when and if issued, shall have the same terms and be in the same form as the Public Warrants except as may be agreed upon by the Company.
3. Terms and Exercise of Warrants
3.1. Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent (if in physical), entitle the registered holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $11.50 per whole share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement refers to the price per share at which Ordinary Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than 20 business days; provided, however, that the Company shall provide at least 10 business days prior written notice of such reduction to registered holders of the Warrants; provided, further, however, that any such reduction shall be applied consistently to all of the Warrants.
3.2. Duration of Warrants. A Warrant may be exercised only during the period (“Exercise Period”) commencing on the later of the consummation by the Company of a share exchange, share reconstruction and amalgamation with, purchase of all or substantially all of the assets of, contractual arrangements with, or any other similar business combination with one or more businesses or entities (“Business Combination”) (as described more fully in the Registration Statement) and 12 months from the effective date of the Registration Statement of the Public Offering, and terminating at 5:00 p.m., New York City time on the earlier to occur of (i) five years from the consummation of a Business Combination (ii) the liquidation of the Company, and (iii) the Redemption Date as provided in Section 6.2 of this Agreement (“Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in Section 7.4 below; provided further, that for as long as any of the Private Warrants are held by the Representative or its designees or affiliates, such Private Warrants may not be exercised after five years from the effective date of the Registration Statement. Except with respect to the right to receive the Redemption Price in the event of a redemption (as set forth in Section 6 hereunder), each Warrant not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at the close of business on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, however, that the Company will provide written notice to registered holders of the Warrants of such extension of not less than 20 days.
3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent (if applicable), may be exercised by the registered holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Warrant represented by a book-entry, the Warrants to be exercised on the records of the Depository to an account of the Warrant Agent at the Depository designated for such purposes in writing by the Warrant Agent to the Depository from time to time, (ii) an election to purchase any Ordinary Shares pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Warrant Certificate or, in the case of a Book-Entry Warrant, properly delivered by the Depository participant in accordance with the Depositary’s procedures, and (iii) by paying in full the Warrant Price for each full Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Ordinary Shares and the issuance of such Ordinary Shares, as follows:
(a) in lawful money of the United States, in good certified check or wire payable to the Warrant Agent;
(b) in the event of redemption pursuant to Section 6 hereof in which the Company’s management has elected to require all holders of Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (defined below) by (y) the Fair Market Value, provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the 10 trading days ending on the third trading day prior to the date on which the notice of redemption is sent to holders of Warrant pursuant to Section 6 hereof; or
(c) with respect to any Private Warrants or Working Capital Warrants, so long as such Private Warrants or Working Capital Warrants are held by the initial holders or their affiliates and permitted transferees (as prescribed in Section 5.6 hereof), by surrendering such Private Warrants or Working Capital Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the 10 trading days ending on the day prior to the Company’s receipt of the applicable exercise notice; or
(d) in the event the registration statement required by Section 7.4 hereof is not then effective and current, then during the period beginning on the 91st day after the closing of the Business Combination and ending upon the effectiveness of such registration statement, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, by surrendering such Warrants for that number of Ordinary Shares equal to the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market Value is higher than the exercise price. Solely for purposes of this Section 3.3.1(d), the “Fair Market Value” shall mean the average reported last sale price of the Ordinary Shares for the 10 trading days ending on the day prior to the date of exercise.
3.3.2. Issuance of Ordinary Shares. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a book-entry position or certificate or certificates for the number of full Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant (as the case may be) for the number of shares as to which such Warrant shall not have been exercised. Subject to Section 4.7 of this Agreement, a registered holder of Warrants may exercise its Warrants only for a whole number of Ordinary Shares (i.e., only an even number of Warrants may be exercised at any given time by a registered holder). Notwithstanding the foregoing, in no event will the Company be required to net cash settle the Warrant exercise. The Company shall not be obligated to deliver any Ordinary Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Act with respect to the Ordinary Shares underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which such exercise would be unlawful. No Warrant shall be exercisable and the Company shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the registered holder of the Warrants. In the event that the conditions in the immediately preceding three sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the Ordinary Shares underlying such Unit. If, by reason of any exercise of warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall round down to the nearest whole number, the number of shares to be issued to such holder.
3.3.3. Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Ordinary Shares is issued shall for all purposes be deemed to have become the holder of record of such shares on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the share transfer books of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.
3.3.5. Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not affect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Ordinary Shares, the holder may rely on the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or the Company’s transfer agent setting forth the number of Ordinary Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) business days, confirm orally and in writing to such holder the number of Ordinary Shares then outstanding. In any case, the number of outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
4. Adjustments.
4.1. Share Dividends - Split Ups. If after the date hereof, the number of outstanding Ordinary Shares is increased by a share dividend payable in Ordinary Shares, or by a split up of the Ordinary Shares, or other similar event, then, on the effective date of such share dividend, split up or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in outstanding Ordinary Shares. A rights offering to all holders of the Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Fair Market Value” (as defined below) shall be deemed a share dividend of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Ordinary Shares) multiplied by (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Fair Market Value. For purposes of this subsection 4.1, (i) if the rights offering is for securities convertible into or exercisable for Ordinary Shares, in determining the price payable for the Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Fair Market Value” means the volume weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights.
4.2. Aggregation of Shares. If after the date hereof, the number of outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or reclassification of the Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding Ordinary Shares.
4.3. Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to the holders of the Ordinary Shares on account of such Ordinary Shares (or other shares of the Company’s share capital into which the Warrants are convertible), other than (a) as described in subsection 4.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the conversion rights of the holders of the Ordinary Shares in connection with a proposed initial Business Combination, (d) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a vote to amend the Company’s amended and restated memorandum and articles of association pursuant to Regulation 23.11 thereof, (e) as a result of the repurchase of Ordinary Shares by the Company in connection with an initial Business Combination or as otherwise permitted by the Investment Management Trust Agreement between the Company and the Warrant Agent dated of even date herewith or (f) in connection with the Company’s liquidation and the distribution of its assets upon its failure to consummate a Business Combination (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market value (as determined by the Company’s board of directors, in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.3, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).
4.4. Adjustments in Exercise Price. Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.
4.5. Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding Ordinary Shares (other than a change covered by Section 4.1 or 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event; and if any reclassification also results in a change in Ordinary Shares covered by Section 4.1 or 4.2, then such adjustment shall be made pursuant to Sections 4.1, 4.2, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
4.6. Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the warrant register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.7. No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of the Ordinary Shares to be issued to the Warrant holder.
4.8. Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.9. Other Events. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if such firm determines that an adjustment is necessary, the terms of such adjustment; provided, however, that under no circumstances shall the Warrants be adjusted pursuant to this Section 4 as a result of any issuance of securities in connection with the Business Combination. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant.
5.4. Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6. Private Warrants and Working Capital Warrants. The Warrant Agent shall not register any transfer of Private Warrants or Working Capital Warrants until after the consummation by the Company of a Business Combination, except for transfers made in accordance with Section 2.6 hereof, on the condition that, in the case of Private Warrants, prior to such registration for transfer, the Warrant Agent shall be presented with written documentation pursuant to which each transferee or the trustee or legal guardian for such transferee agrees to be bound by the terms of the Subscription Agreements.
6. Redemption.
6.1. Redemption. Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the price of $0.01 per Warrant (“Redemption Price”), provided that the last sales price of the Ordinary Shares has been at least $16.50 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) trading days within any thirty (30) trading day period (“30-Day Trading Period”) ending on the third trading day prior to the date on which notice of redemption is given and provided further that there is a current registration statement in effect with respect to the issuance of the Ordinary Shares underlying the Warrants for each day in the 30-Day Trading Period and continuing each day thereafter until the Redemption Date (defined below).
6.2. Date Fixed for, and Notice of, Redemption. In the event the Company shall elect to redeem all of the Warrants, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than 30 days prior to the Redemption Date to the registered holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder received such notice.
6.3. Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption will contain the information necessary to calculate the number of Ordinary Shares to be received upon exercise of the Warrants, including the “Fair Market Value” (within the meaning of Section 3.3.1(b)) in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.4. Exclusion of Certain Warrants. Any of the Private Warrants or Working Capital Warrants, Representative Warrants prior to the exercise of the UPO or Post IPO Warrants (if such warrants provide that they are non-redeemable by the Company), shall not be redeemable by the Company as long as such Private Warrants, Working Capital Warrants, Representative Warrants (prior to the exercise of the UPO) or Post IPO Warrants (if such warrants provide that they are non-redeemable by the Company) continue to be held by initial holders and affiliates or their permitted transferees (as prescribed in Section 5.6 hereof). However, once such Private Warrants, Working Capital Warrants or Representative Warrants (prior to the exercise of the UPO) are no longer held by the initial holders or their affiliates or permitted transferees, such Private Warrants, Working Capital Warrants or Representative Warrants (prior to the exercise of the UPO) shall then be redeemable by the Company pursuant to Section 6 hereof. Upon the exercise of the UPO, the Representative Warrants shall be redeemable by the Company upon the same terms as the Public Warrants. The provisions of this Section 6.4 may not be modified, amended or deleted without the prior written consent of the Representative.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Shareholder. A Warrant does not entitle the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3. Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Ordinary Shares. The Company agrees that as soon as practicable after the closing of a Business Combination, it shall use its best efforts to file with the SEC a new registration statement, for the registration, under the Act, of the Ordinary Shares issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to qualify for sale, in those states in which the Warrants were initially offered by the Company, the Ordinary Shares issuable upon exercise of the Warrants. In either case, the Company will use its best efforts to cause the same to become effective and to maintain the effectiveness of such registration statement until the expiration of the Warrants in accordance with the provisions of this Agreement. In addition, the Company agrees to use its best efforts to register such securities under the blue sky laws of the states of residence of the exercising warrant holders to the extent an exemption is not available. If any such registration statement has not been declared effective by the 90-day anniversary following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the 91st day after the closing of the Business Combination and ending upon such registration statement being declared effective by the SEC, and during any other period after such date of effectiveness when the Company shall fail to have maintained an effective and current registration statement covering the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance with Section 3.3.1(d). In connection with the cashless exercise of the Public Warrants, the Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the issuance of Ordinary Shares upon exercise of the Warrants on a cashless basis in accordance with this Section 7.4 is not required to be registered under the Act and (ii) the Ordinary Shares issued upon such exercise will be freely tradable under U.S. federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Act) of the Company and, accordingly, will not be required to bear a restrictive legend. For the avoidance of any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this Section 7.4. The provisions of this Section 7.4 may not be modified, amended or deleted without the prior written consent of the Representative.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of 30 days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the transfer agent for the Ordinary Shares not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant Agent’s gross negligence, willful misconduct, or bad faith.
8.4.3. Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares will when issued be valid and fully paid and nonassessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all moneys received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of Warrants.
8.6. Waiver. The Warrant Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
Longevity Acquisition Corporation
Yongda International Tower No. 2277
Longyang Road, Pudong District, Shanghai
People’s Republic of China
Attn: Matthew Chen, Chairman and Chief Executive Officer
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company
One State Street, 30th Floor
New York, New York 10004
Attn: Compliance Department
with a copy in each case to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11th Floor
New York, NY 10105
Attn: Stuart Neuhauser, Esq.
and
Loeb & Loeb
345 Park Avenue
New York, New York 10154
Attn: Mitchell S. Nussbaum, Esq. and Giovanni Caruso, Esq.
and
Cantor Fitzgerald & Co.
499 Park Avenue
New York, New York 10022
Attn: General Counsel
9.3. Applicable Law. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4. Persons Having Rights under this Agreement. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto and the registered holders of the Warrants and, for the purposes of Sections 2.6, 6.4, 7.4, 9.4 and 9.8 hereof, the Representative, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. The Representative shall be deemed to be a third-party beneficiary of this Agreement with respect to Sections 2.6, 6.4, 7.4, 9.4 and 9.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto (and the Representative with respect to the Sections 2.6, 6.4, 7.4, 9.4 and 9.8 hereof) and their successors and assigns and of the registered holders of the Warrants.
9.5. Examination of the Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection by it.
9.6. Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings. The Section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8. Amendments. This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period, shall require the written consent or vote of the registered holders of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders. The provisions of this Section 9.8 may not be modified, amended or deleted without the prior written consent of the Representative.
9.9. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[signature page follows]
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
LONGEVITY ACQUISITION CORPORATION | ||
By: | /s/ Matthew Chen | |
Name: Matthew Chen | ||
Title: Chairman and Chief Executive Officer | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY | ||
By: | /s/ Erika Young | |
Name: Erika Young | ||
Title: Vice President |
[Signature page to Warrant Agreement]
Exhibit 4.4
ASSUMPTION AGREEMENT dated as of March __, 2021 among 4d pharma plc, a public limited company incorporated under the laws of England and Wales (“Parent”), Longevity Acquisition Corporation, a British Virgin Islands company limited by shares (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, with offices at One State Street, 30th Floor, New York, New York 10004 (“Warrant Agent”).
W I T N E S S E T H:
WHEREAS, the Company and the Warrant Agent are parties to a Warrant Agreement, dated as of August 28, 2018 (the “Warrant Agreement”), pursuant to which Company issued warrants to purchase its ordinary shares (the “Warrants”);
WHEREAS, the Company entered into an Agreement and Plan of Merger, dated as of October 21, 2020 (the “Merger Agreement”) by and among the Company, Parent and Dolphin Merger Sub Limited, a British Virgin Islands company limited by shares and a wholly owned subsidiary of Parent (“Merger Sub”);
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, the Company will merge with and into Merger Sub (the “Merger”), with Merger Sub surviving the Merger as a wholly owned subsidiary of Parent;
WHEREAS, pursuant to the Merger Agreement and subject to the terms and conditions therein, at the effective time of the Merger, each ordinary share of the Company, no par value (“Company Ordinary Shares”) issued and outstanding immediately prior to the effective time of the Merger will be converted into the right to receive 7.5315 ordinary shares of common stock, par value 0.25 pence per share, of Parent (“Parent Ordinary Shares”), such Parent Ordinary Shares deliverable in the form of American Depositary Shares of Parent (“Parent ADSs”), with each Parent ADS initially representing eight Parent Ordinary Shares;
WHEREAS, Section 4.5 of the Warrant Agreement provides that, in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding Company Ordinary Shares) (a “Merger Event”), the Warrant holders shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Company Ordinary Shares immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other securities receivable upon such merger or consolidation, that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to such event;
WHEREAS, Section 6.1 of the Warrant Agreement provides that, subject to the terms and conditions set forth therein and in the Warrant Agreement, outstanding Warrants may be redeemed, at the option of the Company, at the price of $0.01 per Warrant, provided that the last sales price of the Company Ordinary Shares has been at least $16.50 per share (the “Redemption Threshold Price”) for the trading period specified therein;
WHEREAS, in accordance with Section 9.8 of the Warrant Agreement, the Company desires to amend the Redemption Threshold Price to increase it to $18.00 per share, which Redemption Threshold Price will, upon closing of the Merger, adjust in accordance with Sections 4.5 and 6.1 due to the Merger Event; and
WHEREAS, Parent desires to assume the obligations of the Company under the Warrant Agreement and the Warrants;
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, Parent and the Warrant Agent mutually covenant and agree for the benefit of the holders of Warrants as follows:
Article 1
DEFINITIONS
Section 1.01. Definitions in this Assumption Agreement. A term defined in the Warrant Agreement has the same meaning when used in this Assumption Agreement unless such term is otherwise defined herein or amended or supplemented pursuant to this Assumption Agreement. The words “herein,” “hereof,” “hereunder,” and words of similar import refer to this Assumption Agreement as a whole and not to any particular Article, Section or other subdivision.
Article 2
REDEMPTION THRESHOLD PRICE
Section 2.01. Revised Term. In accordance with Section 9.8 of the Warrant Agreement, the Company and the Warrant Agent hereby amend the Redemption Threshold Price effective immediately prior to the effective time of the Merger to increase it to $18.00 per share.
Article 3
EFFECT OF MERGER EVENT ON WARRANT TERMS
Section 3.01. Warrant Terms. In accordance with Section 4.5 of the Warrant Agreement, at the effective time of the Merger, each Warrant that is outstanding as of the effective time of the Merger shall be exercisable, subject and pursuant to the terms of the Warrant Agreement, for 3.76575 Parent Ordinary Shares at a Warrant Price of $1.53 per whole Parent Ordinary Share.
Section 3.02. Redemption Threshold Price. In accordance with Sections 4.5 and 6.1 of the Warrant Agreement, at the effective time of the Merger, the Redemption Threshold Price shall be the greater of $2.39 per Parent Ordinary Share or $19.12 per ADS (based on an initial ratio of eight Parent Ordinary Shares to one Parent ADS).
2
Article 4
PARENT ASSUMPTION
Section 4.01. Assumption. Parent hereby assumes the obligations of the Company under the Warrant Agreement and the Warrants.
Article 5
MISCELLANEOUS
Section 5.01. Governing Law. The validity, interpretation, and performance of this Assumption Agreement shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
Section 5.02. Counterparts. This Assumption Agreement may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this Assumption Agreement and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Assumption Agreement as to the parties hereto and signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
[Signature Pages Follow]
3
IN WITNESS WHEREOF, the parties have caused this Assumption Agreement to be duly executed as of the date first written above.
LONGEVITY ACQUISITION CORPORATION,
|
||
By: | ||
Name: | ||
Title: |
4D PHARMA PLC,
|
||
By: | ||
Name: | ||
Title: |
CONTINENTAL STOCK TRANSFER & TRUST COMPANY,
|
||
By: | ||
Name: | ||
Title: |
[Signature Page to Assumption Agreement]
Exhibit 4.5
NUMBER ________ |
(SEE REVERSE SIDE FOR LEGEND)
IN THE WARRANT AGREEMENT DESCRIBED BELOW |
WARRANTS |
LONGEVITY ACQUISITION CORPORATION
WARRANT
THIS CERTIFIES THAT, for value received
is the registered holder of a warrant or warrants (the “Warrant”), expiring at 5:00 p.m., New York City time, on the five year anniversary of the completion by Longevity Acquisition Corporation, a British Virgin Islands company (the “Company”), of an acquisition, share exchange, share reconstruction and amalgamation, contractual control arrangement or other similar business combination with one or more businesses or entities (a “Business Combination”), to purchase one half (1/2) of one fully paid and non-assessable ordinary share, no par value (“Shares”), of the Company for each Warrant evidenced by this Warrant Certificate. The Warrant entitles the holder thereof to purchase from the Company, commencing on the later of (a) one year from the date of the final prospectus relating to the Company’s initial public offering and (b) the Company’s completion of a Business Combination, such whole number of Shares of the Company at the price of $11.50 per whole share, upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the Warrant Agent, Continental Stock Transfer & Trust Company, but only subject to the conditions set forth herein and in the Warrant Agreement between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent. In no event will the Company be required to net cash settle any warrant exercise. The Warrant Agreement provides that upon the occurrence of certain events the Warrant Price and the number of Shares purchasable hereunder, set forth on the face hereof, may, subject to certain conditions, be adjusted. The term Warrant Price as used in this Warrant Certificate refers to the price per Share at which Shares may be purchased at the time the Warrant is exercised. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
No fraction of a Share will be issued upon any exercise of a Warrant. A warrantholder may exercise its warrants only for a whole number of shares. This means that only an even number of warrants may be exercised at any given time by a warrantholder.
Upon any exercise of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered holder hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the Warrant has not been exercised.
Warrant Certificates, when surrendered at the office or agency of the Warrant Agent by the registered holder hereof in person or by attorney duly authorized in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants.
Upon due presentment for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any applicable tax or other governmental charge.
The Company and the Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the registered holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
This Warrant does not entitle the registered holder to any of the rights of a shareholder of the Company. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.
The Company reserves the right to redeem the Warrant at any time prior to its exercise with a notice of redemption in writing to the holders of record of the Warrant, giving at least 30 days’ notice of such redemption, at any time while the Warrant is exercisable, if the last sale price of the Shares has been at least $16.50 per share (as adjusted for stock splits, stock dividends, reorganizations and recapitalizations) on each of 20 trading days within any 30 trading day period (the “30-day trading period”) ending on the third trading day prior to the date on which notice of such call is given and if, and only if, there is a current registration statement in effect with respect to the Shares underlying the Warrants for each day of the 30-day trading period and continuing each day thereafter until the date of redemption. The redemption price of the Warrants is to be $0.01 per Warrant. Any Warrant either not exercised or tendered back to the Company by the end of the date specified in the notice of call shall be canceled on the books of the Company and have no further value except for the $0.01 call price.
By | |||
SEAL | |||
Chief Executive Officer | 2018 | Chief Executive Officer |
ELECTION TO PURCHASE
To Be Executed by the Registered Holder in Order to Exercise Warrants
The undersigned Registered Holder irrevocably elects to exercise ______________ Warrants represented by this Warrant Certificate, and to purchase the ordinary shares issuable upon the exercise of such Warrants, and requests that Certificates for such shares shall be issued in the name of
(PLEASE TYPE OR PRINT NAME AND ADDRESS) |
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
and, if such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered in the name of, and delivered to, the Registered Holder at the address stated below:
Dated: | |||
(SIGNATURE) | |||
(ADDRESS) | |||
(TAX IDENTIFICATION NUMBER) |
THE SIGNATURE MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES ACT OF 1933, AS AMENDED).
ASSIGNMENT
To Be Executed by the Registered Holder in Order to Assign Warrants
For Value Received, _______________________ hereby sell, assign, and transfer unto
(PLEASE TYPE OR PRINT NAME AND ADDRESS) |
(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
and be delivered to
(PLEASE PRINT OR TYPE NAME AND ADDRESS)
______________________ of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitute and appoint _________________________________ Attorney to transfer this Warrant Certificate on the books of the Company, with full power of substitution in the premises.
Dated: | |||
(SIGNATURE) |
THE SIGNATURE TO THE ASSIGNMENT FORM MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES ACT OF 1933, AS AMENDED).
Exhibit 5.1
Private and Confidential The Directors 4D pharma plc 5th Floor, 9 Bond Court Leeds LS1 2JZ |
|
Our Ref 118519125.8\SM104\655335.07024 | |
DDI +44 (0)207 418 8271 | |
E charles.waddell@pinsentmasons.com |
16 February 2021
Dear Sirs
Registration Statement on Form F-4 of 4D pharma plc
1. | INTRODUCTION |
We have acted for 4D pharma plc, a public limited company incorporated under the laws of England and Wales (the "Company"), as its legal advisers as to English law in connection with the agreement and plan of merger dated 21 October 2020 between the Company, Dolphin Merger Sub Limited ("Merger Sub") and Longevity Acquisition Corporation ("Longevity") (the "Merger Agreement") providing for the merger of Longevity with and into Merger Sub pursuant to the law of the British Virgin Islands (the "Merger"). As consideration for the Merger, the Company intends to issue 19,774,872 ordinary shares of £0.0025 each (the "New Shares") in the Company to a depositary which will hold the New Shares on behalf of the Longevity shareholders and will issue American Depositary Shares ("ADS") of the Company to such shareholders, with each ADS representing 8 ordinary shares. In addition, Longevity will novate the outstanding warrants to subscribe for Longevity shares to the Company (the "New Warrants"), which new warrants will, upon completion of the Merger, entitle the warrantholder to subscribe for ordinary shares of £0.0025 each in the capital of the Company (the "Warrant Shares"). The novation will be effected by an Assumption Agreement to be entered into between Longevity, the Company and Continental Stock Transfer & Trust Company (the " Assumption Agreement").
This opinion is being furnished in connection with the preparation and filing of the Company's registration statement on Form F-4 (the "Registration Statement"), the initial draft of which was filed on 25 November 2020 by the Company with the US Securities and Exchange Commission ("SEC") under the United States Securities Act of 1933 (as amended) (the "Securities Act"), and the rules and regulations promulgated thereunder (the "Rules").
The existing issued ordinary shares of the Company are admitted to trading, and it is intended that application will be made for the New Shares to be admitted to trading on the AIM market operated by London Stock Exchange plc ("AIM").
In connection with the proposed issuance of New Shares and the proposed assumption of the New Warrants from Longevity to the Company, we have been asked to provide an opinion on certain matters, as set out below.
2. | DOCUMENTS EXAMINED |
2.1 | For the purposes of giving this opinion, we have examined copies of the following documents: |
(a) | the Merger Agreement; |
Pinsent Masons LLP
30 Crown Place London EC2A 4ES United Kingdom
T +44 (0)20 7418 7000 F +44 (0)20 7418 7050 DX 157620 Broadgate
(b) | a certificate of the company secretary of the Company dated 16 February 2021 (the "Certificate") relating to certain factual matters and having annexed thereto copies (certified by the company secretary as being true, accurate, complete and up-to-date in each case) of the following documents: |
(i) | the Company's certificate of incorporation; |
(ii) | the Company's articles of association; |
(iii) | the minutes of a meeting of the board of directors of the Company held on 17 October 2020, and of a meeting of a committee of the board of directors of the Company held on 21 October 2020 at which it was resolved, inter alia, to approve the Merger; |
(iv) | the minutes of a meeting of the board of directors of the Company held on 22 November 2020 at which it was resolved, inter alia, to approve the filing of the Registration Statement with the SEC; |
(v) | the draft minutes of a meeting of a committee of the board of directors of the Company proposed to be held after the general meeting of the shareholders of the Company described in 2.1(b)(vi), below, at which it is intended to be resolved that the New Shares be allotted to Longevity shareholders; |
(vi) | the resolutions to be proposed to the shareholders of the Company at a general meeting to be convened on or around 11 March 2021 for the purpose of, inter alia: |
i. | by ordinary resolution, authorising the board of directors to allot the New Shares in accordance with section 551 of the Companies Act 2006 (the "Companies Act"); |
ii. | by special resolution, dis-applying pre-emption rights in respect of the New Warrants in accordance with section 561 of the Companies Act; and |
iii. | by special resolution, amending the Company's articles of association, |
(the minutes and resolutions described in 2.1(b)(iii)-(vi) (inclusive) are collectively referred to herein as the "Corporate Approvals");
(c) | the Warrant Agreement dated 28 August 2018 between Longevity and Continental Stock Transfer & Trust Company (the "Warrant Agreement"); |
(d) | the draft form of Assumption Agreement; |
(e) | the draft form of notice to Continental Stock Transfer & Trust Company (in its capacity as warrant agent) in accordance with the terms of the Warrant Agreement regarding the novation of the New Warrants to the Company; and |
(f) | a copy of the Registration Statement to be filed with the SEC on 16 February 2021. |
2.2 | For the purposes of giving this opinion, we have made the following enquiries: |
(a) | on 16 February 2021 at 10:05 a.m. we carried out an online search of the register maintained by the Registrar of Companies in England and Wales in respect of the Company (the "Company Search"); and |
(b) | on 16 February 2021 at 10:05 a.m. we carried out a search in respect of the Company of the Central Registry of Winding-Up Petitions (the "Central Registry Enquiry" and, together with the Company Search, the "Searches"), |
and reviewed the information we received from our agents from the Searches (the "Search Results").
2
For the purposes of giving this opinion, we have only examined and relied on those documents referred to in paragraphs 2.1(a) – (f) (inclusive), carried out the Searches on the dates and at the times specified, and reviewed the Search Results. We have made no other enquiries concerning the Company or any other matter in connection with the giving of this opinion.
3. | ASSUMPTIONS |
3.1 | For the purposes of giving this opinion we have assumed (without carrying out any independent investigation or verification in respect of such assumptions) that: |
(a) | all signatures, seals and stamps on all documents (including copy documents) examined by us are genuine, complete and accurate; |
(b) | in respect of all documents submitted to us electronically through an email signature platform (such as Adobe Sign or DocuSign): |
(i) | such documents have been signed electronically and are not "advanced electronic signatures" or "qualified electronic signatures" (each as defined in Regulation (EU) No 910/2014 (the "eIDAS Regulation")); |
(ii) | where applicable, the documents have been duly witnessed by witnesses who were physically present when such documents were signed electronically, and each such witness duly observed the act of signing and was aware at that time that he/she was witnessing that signatory's signature; |
(c) | each individual who signs as, or otherwise claims to be, an officer of the Company is the individual he claims to be and holds the office he claims to hold; |
(d) | all documents submitted to us as original are authentic and complete and all documents submitted to us in electronic form or as certified photocopies or facsimile transmitted copies or other copies of original documents conform to the originals and that the originals from which such copies were taken were authentic and complete; |
(e) | all documents, including the constitutional documents, which we have reviewed are in force and remain accurate, up-to-date and have not been amended, terminated or rescinded, or any provisions thereof varied or waived; |
(f) | all documents set out in paragraph 2.1 as having been reviewed by us have been or will be duly executed and, where applicable, delivered on behalf of the parties thereto; |
(g) | the Certificate and all documents annexed thereto, as listed in paragraph 2.1(b)(iii) – (vi) (inclusive), are all the relevant minutes and resolutions of the directors and shareholders of the Company relating to the approval of the Merger by the Company, and necessary for completion of all of the transactions contemplated by the Merger Agreement; |
(h) | the Registration Statement will have become effective in accordance with its terms (and will remain effective on each date of the allotment and issue of the New Shares) (the "Allotment Dates"); |
(i) | the information disclosed by the Searches is complete, accurate and up-to-date, will remain so as at each Allotment Date and included all information which should properly have been disclosed by those Searches; and no step will be taken to wind-up, strike off or dissolve the Company or to place the Company into administration and no receiver will be appointed over or in respect of the assets of the Company, nor will any analogous procedure or step be taken in any jurisdiction which (in either case) has or have not been revealed by the Searches; |
3
(j) | in relation to each of the meetings referred to in paragraph 2.1(b)(iii) and paragraph 2.1(b)(iv), all resolutions passed at those meetings have not been or will not be revoked or withdrawn prior to the Allotment Dates; |
(k) | in relation to the meeting referred to in paragraph 2.1(b)(v), it will be duly convened, constituted and held in accordance with all applicable laws and regulations; that a duly qualified quorum of directors will be present throughout such meeting and vote in favour of the resolutions and that, in accordance with the Companies Act and each other applicable statutory provision and the articles of association of the Company, all directors of the Company will declare their interest in the matters to be discussed at that meeting of a committee of the board of directors and that such directors will be duly allowed to count in the quorum; that no resolutions passed at such meeting will be amended, withdrawn or revoked prior each Allotment Date; and that the draft minutes (or a close variation thereof) provided in the Certificate will be signed as a record of the meeting that took place; |
(l) | in relation to the general meeting of the shareholders of the Company referred to in paragraph 2.1(b)(vi), it will be duly convened, constituted and held in accordance with all applicable laws and regulations and that a duly qualified quorum of shareholders will be present throughout such meeting and vote in favour of the resolutions referred to in paragraph 2.1(b)(vi)i-iii and that such resolutions will not be amended, withdrawn or revoked prior to each Allotment Date; |
(m) | on each Allotment Date, the Company will comply with all applicable laws to allot and issue the New Shares; |
(n) | any conditionality on the authority to allot and issue the New Shares will be satisfied or waived by the relevant parties; |
(o) | the directors of the Company have acted in good faith and have complied, and will continue to comply, with their duties under the Companies Act and all applicable laws in approving the matters set out in the minutes of each of the meetings referenced in paragraphs 2.1(b)(iii)-(v) (inclusive), and all transactions contemplated thereby; |
(p) | no party will, by reasons of the transactions contemplated by the Corporate Approvals, be in breach of any of their respective obligations under any other agreement, licence, authorisation, consent or similar document or injunction or other court order against or affecting the Company; |
(q) | all documents provided to us in draft form prior to the execution of this opinion will, when duly executed by the parties thereto, be in substantially the form examined by us prior to issuing this opinion; and |
(r) | the Company is not, nor will be, engaging in criminal, misleading or deceptive conduct, or seeking to conduct any relevant transaction or any associated activity in a manner or for a purpose which might render any transaction contemplated by the Corporate Approvals or any associated activity illegal, void, voidable or unenforceable. |
4
4. | OPINION |
4.1 | Based on the documents referred to in paragraph 2, and subject to the assumptions contained in paragraph 3 and to the qualifications contained in paragraph 5, and to any matters not disclosed to us, it is our opinion that: |
a. | upon the allotment of the New Shares in accordance with the Merger Agreement, the entry of the names of the appropriate persons in the Company's register of members in respect of the applicable numbers of New Shares, and the admission of those New Shares to trading on AIM, the New Shares will be duly and validly issued, credited as fully paid up and not subject to any call for the payment of further capital; |
b. | upon the closing of the meeting of a committee of the board of directors referenced in paragraph 2.1(b)(v), all necessary corporate action on the part of the Company will have been taken under English law to authorise the novation of the New Warrants from Longevity to the Company and the execution of the Assumption Agreement; and |
c. | there is nothing under English law (or under the Company’s constitutional documents) which prevents the Company from agreeing to New York law as the governing law for the Assumption Agreement referred to in paragraph 2.1(d) and (on the assumption that the Assumption Agreement creates valid and binding obligations of the parties under New York law) English law will not prevent the obligations of the Company under the Assumption Agreement being valid and binding obligations of the Company, including but not limited to the obligation to allot Warrant Shares on the exercise of the New Warrants. |
This opinion is strictly limited to the matters expressly stated in this paragraph 4 and is not to be construed as extending by implication to any other matter.
5. | QUALIFICATIONS |
5.1 | The opinion set out in paragraph 4 is subject to the following qualifications: |
a. | the records of the Registrar of Companies and the Central Registry of Winding-Up Petitions may not be complete or up-to-date. In particular, the Central Registry of Winding-Up Petitions may not contain details of administration applications filed, or appointments recorded in or orders made by, district registries and county courts outside London. Searches at Companies House and the Central Registry of Winding-Up Petitions are not capable of revealing whether or not a winding-up petition or a petition for the making of an administration order has been presented an, further, notice of a winding-up order or resolution, notice of an administration order and notice of the appointment of a receiver may not be filed at Companies House immediately and there may be a delay in the relevant notice appearing on the file of the company concerned; |
b. | our opinion relates only to (a) the New Shares allotted and issued pursuant to the Merger Agreement and (b) the New Warrants. We express no opinion in respect of the ADS or in respect of any other securities of the Company; and |
c. | we express no opinion as to matters of United Kingdom taxation or any liability to tax which may arise or be incurred as a result of or in connection with the Merger or the transactions contemplated thereby, the allotment and issue of the New Shares, the proposal to issue the ADS or to trade the New Shares in ADS, or as to tax matters generally. |
6. | LAW |
This opinion is confined to matters of English law as applied by the English courts as the date of this opinion.
This opinion and any non-contractual obligations connected with it are given on the basis that they will be governed by and construed in accordance with English law and the English courts shall have exclusive jurisdiction in respect of any disputes or other matters that arise out of or in connection with them.
We express no opinion on, and have taken no account of, the laws or regulations of any jurisdiction other than England and Wales. We express no opinion on the effect of documents governed by laws other than English law.
5
7. | CONSENT |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under section 7 of the Securities Act or the Rules.
Yours sincerely
/s/ Pinsent Masons LLP
Pinsent Masons LLP
6
Exhibit 5.2
Wilson
Sonsini Goodrich & Rosati
O:
650.493.9300
|
February 16, 2021
4D pharma plc
5th Floor, 9 Bond Court
Leeds
LS1 2JZ
ENGLAND
Ladies and Gentlemen:
4D Pharma plc, a public limited company incorporated under the laws of England and Wales (the “Company”), is filing with the United States Securities and Exchange Commission a Registration Statement on Form F-4 (the “Registration Statement”) for, among other things, the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), warrants to be assumed by the Company (the “Warrants”) originally issued by Longevity Acquisition Corporation, a company limited by shares organized under the laws of the British Virgin Islands (“Longevity”), issued pursuant to a warrant agreement dated as of August 28, 2018 between Continental Stock Transfer & Trust Company, as warrant agent (“Continental”), and Longevity (the “Warrant Agreement”), pursuant to the Agreement and Plan of Merger dated as of October 21, 2020 between the Company, Dolphin Merger Sub Limited ("Merger Sub") and Longevity (the "Merger Agreement") providing for the merger of Longevity with and into Merger Sub pursuant to the law of the British Virgin Islands (the "Merger").
Upon assumption by the Company of the Warrants at the consummation of the Merger, each Warrant will entitle the warrant holder to subscribe for ordinary shares of £0.0025 each in the capital of the Company (the "Warrant Shares"). The assumption will be effected by an Assumption Agreement to be entered into between Longevity, the Company and Continental at the consummation of the Merger substantially in the form attached as Exhibit 4.4 to the Registration Statement (the "Assumption Agreement").
We, as your counsel, have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion. In rendering this opinion, we have relied on the opinion of Pinsent Masons LLP, being filed as an exhibit to the Registration Statement, that all necessary corporate action on the part of the Company has been taken under the laws of England and Wales to authorize the assumption of the Warrants and the execution of the Assumption Agreement.
Based upon the foregoing, we advise you that, upon assumption of the Warrants pursuant to the Merger Agreement and execution of the Assumption Agreement by the parties thereto, in our opinion the Warrants will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability.
austin
beijing boston brussels hong kong london los angeles new york palo alto
san diego san francisco seattle shanghai washington, dc wilmington, de
We are members of the Bars of the State of New York and the State of the State of California and the foregoing opinion is limited to the laws of the State of New York.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement referred to above and further consent to the reference to our name under the caption “Legal Matters” in the prospectus, which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without our prior written consent.
Very truly yours, | |
/s/ Wilson Sonsini Goodrich & Rosati, P.C. | |
WILSON SONSINI GOODRICH & ROSATI | |
Professional Corporation |
Exhibit 8.1
Wilson Sonsini Goodrich &
Rosati
650 Page Mill Road
o:
650.493.9300
|
February 16, 2021
4D pharma plc
5th Floor, 9 Bond Court
Leeds, LS1 2JZ, United Kingdom
Re: | Registration Statement on Form F-4 |
Ladies and Gentlemen:
We have acted as counsel to 4D pharma plc, a public limited company incorporated under the laws of England and Wales (the “Company”), in connection with the filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form F-4 (as it may be amended from time to time, the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration under the Securities Act of up to 31,055,000 ordinary shares (the “Shares”), nominal value £0.0025 per share, of the Company, issuable pursuant to that certain agreement and plan of merger, dated as of October 21, 2020 (the “Merger Agreement”, and the merger contemplated thereby, the “Merger”), by and among the Company, Longevity Acquisition Corporation ("Longevity"), a British Virgin Islands company limited by shares, and Dolphin Merger Sub Limited (“Merger Sub”), a British Virgin Islands company limited by shares and a wholly-owned subsidiary of the Company.
As counsel to the Company, we have examined and relied upon originals or copies of such agreements, instruments, certificates, records and other documents and have made such examination of law as we have deemed necessary or appropriate for the purpose of this opinion, including the Registration Statement and the proxy statement/prospectus contained therein (the “Prospectus”).
Although we have made such inquiries and performed such investigations as we have deemed necessary for purposes of our opinion, we have not independently verified all of the facts set forth in the Registration Statement, the Prospectus, or in any other document. Our opinion is conditioned on, among other things, the initial and continuing accuracy of the factual information set forth in the Registration Statement and the Prospectus. Any change or inaccuracy in the facts referred to, set forth or assumed herein may affect our conclusions set forth herein.
Our opinion is also based on the correctness of the following assumptions: (i) the Company and each of the entities in which the Company holds a direct or indirect interest have been and will continue to be operated in accordance with the laws of the jurisdictions in which they were formed and in the manner described in the relevant organizational documents, (ii) there will be no changes in the applicable laws of which any such entity has been formed, and (iii) each of the written agreements to which the Company or any such entity is a party will be implemented, construed and enforced in accordance with its terms.
austin
beijing boston brussels hong kong london los angeles new york palo alto
san diego san francisco seattle shanghai washington, dc wilmington, de
4D pharma plc
February 16, 2021
Page 2
In rendering our opinion, we have also considered the applicable provisions of the Internal Revenue Code of 1986 (the “Code”), the Treasury Regulations promulgated thereunder, judicial decisions, administrative rulings and other applicable authorities, in each case as in effect on the date hereof. The statutory provisions, regulations, decisions, rulings and other authorities on which this opinion is based are subject to change, and such changes could apply retroactively. A material change that is made after the date hereof in any of the foregoing bases for our opinion could affect our conclusions set forth herein.
In our examination, we have assumed (i) the legal capacity of all natural persons, (ii) the genuineness of all signatures, (iii) the authenticity of all documents submitted to us as originals, (iv) the conformity to original documents of all documents submitted to us as certified, conformed, or photostatic copies, and (v) the authenticity of the originals of such copies.
This opinion shall not be construed as or deemed to be a guaranty or insuring agreement. Opinions of counsel represent only counsel’s best legal judgment and are not binding on the Internal Revenue Service (“IRS”) or on any court. Accordingly, no assurance can be given that the IRS will not challenge the conclusions of the opinion set forth herein or that such a challenge would not be successful.
Based on and subject to the foregoing, we are of the opinion that the statements set forth in the Prospectus under the heading “Material U.S. Federal Income Tax Consequences” for United States federal income tax purposes, to the extent that they constitute matters of United States federal income tax law or legal conclusions with respect thereto currently applicable to the holders described therein as of the date thereof, while not purporting to discuss all possible United States federal income tax consequences of the Merger or the investment in, sale of or other disposition of the Shares, constitute (subject to the qualifications, assumptions, limitations and exceptions set forth therein) accurate summaries of such matters in all material respects. However, as described therein, we can express no opinion as to whether the Merger qualifies as a “reorganization” within Section 368(a) of the Code or as to the classification of either 4D Pharma or Longevity is as a “passive foreign investment company”.
Other than as expressly stated above, we express no opinion on any issue relating to the Company or to any investment therein or under any other law.
This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any legal developments or factual matters arising subsequent to the date hereof, or the impact of any information, document, certificate, record, statement, representation, covenant, or assumption relied upon herein that becomes incorrect or untrue.
We hereby consent to the use of this opinion for filing with the Registration Statement as Exhibit 8.1 thereto, without admitting we are “experts” within the meaning of the Securities Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this exhibit.
4D pharma plc
February 16, 2021
Page 3
Sincerely, | |
/s/ Wilson Sonsini Goodrich & Rosati | |
WILSON SONSINI GOODRICH & ROSATI | |
Professional Corporation |
Exhibit 10.9
9 Bond Court | |
Leeds | |
LS1 2JZ | |
Tel: 0113 895 0130 | |
www.4Dpharmaplc.com |
Private & Confidential
Katrin Rupalla
Gartengasse 12
CH- 4125 Riehen
18 August 2020
Dear Katrin
Letter of appointment
The board of directors (Board) of 4D pharma plc (Company) has appointed you as non-executive director. This letter sets out the terms of your appointment. If you are unhappy with any of the terms, or need any more information, please let me know.
By accepting this appointment, you agree that this letter is a contract for services and is not a contract of employment and you confirm that you are not subject to any restrictions which prevent you from holding office as a director of the Company.
1 | Appointment |
1.1 | Subject to the remaining provisions of this letter, your appointment shall continue unless terminated by either party giving to the other three months’ prior written notice. |
1.2 | Your appointment is subject to the Company’s articles of association, as amended from time to time (Articles). Nothing in this letter shall be taken to exclude or vary the terms of the Articles as they apply to you as a director of the Company. The Articles require any director appointed by the board to retire and seek re-election by the shareholders at the Company’s annual general meeting (AGM) and, thereafter, generally one third of the directors to retire by rotation and seek re-election at each AGM. |
1.3 | Continuation of your appointment is contingent on your continued satisfactory performance and re-election by the shareholders and any relevant statutory provisions relating to removal of a director. If the shareholders do not re-elect you as a director, or you are retired from office under the Articles, your appointment shall terminate automatically, with immediate effect and without compensation beyond termination. |
Registered Office: 4D pharma plc 9 Bond
Court Leeds LS1 2JZ United Kingdom
Registered In England and Wales, Company Number 08840579
1.4 | You may be required to serve on one or more Board committees. You will be provided with the relevant terms of reference on your appointment to such a committee. |
1.5 | Notwithstanding paragraphs 1.1 to 1.4 (inclusive), the Company may terminate your appointment with immediate effect if you have: |
1.5.1 | committed a material breach of your obligations under this letter; |
1.5.2 | committed any serious or repeated breach or non-observance of your obligations to the Company (which include an obligation not to breach your statutory, fiduciary or common law duties); |
1.5.3 | been guilty of any fraud or dishonesty or acted in any manner which, in the Company’s opinion, brings or is likely to bring you or the Company into disrepute, or is materially adverse to the Company’s interests; |
1.5.4 | been convicted of an arrestable criminal offence other than a road traffic offence for which a fine or non-custodial penalty is imposed; |
1.5.5 | been declared bankrupt or have made an arrangement with or for the benefit of your creditors; or |
1.5.6 | been disqualified from acting as a director. |
1.6 | On termination of your appointment you shall, at the Company’s request, resign from your office as director of the Company and any offices you hold in any of the Company’s group companies. |
1.7 | If matters arise which cause you concern about your role, you should discuss these matters with the chairman. If you have any concerns which cannot be resolved, and you choose to resign for that, or any other, reason, you should provide an appropriate written statement to the chairman for circulation to the Board. |
2 | Time Commitment |
2.1 | You will be expected to devote such time as is necessary for the proper performance of your duties. This will include attendance at bi-monthly (i.e. every second month) Board meetings and the AGM, meetings with the non-executive directors, meetings with shareholders, meetings forming part of the Board evaluation process, and updating and training meetings. In addition, you will be required to consider all relevant papers before each meeting. Unless urgent and unavoidable circumstances prevent you from doing so, it is expected that you will attend the meetings outlined in this paragraph. |
2.2 | The nature of the role makes it impossible to be specific about the maximum time commitment. You may be required to devote additional time to the Company in respect of preparation time and ad hoc matters which may arise, particularly when the Company is undergoing a period of increased activity. At certain times it may be necessary to convene additional Board, committee or shareholder meetings. |
2.3 | By accepting this appointment you confirm that, taking into account all of your other commitments, you are able to allocate sufficient time to the Company to discharge your responsibilities effectively. |
2
3 | Role and Duties |
3.1 | The Board as a whole is collectively responsible for the success of the Company. The Board’s role is to: |
3.1.1 | provide entrepreneurial leadership of the Company within a framework of prudent and effective controls which enable risk to be assessed and managed; |
3.1.2 | set the Company’s strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and |
3.1.3 | set the Company’s values and standards and ensure that its obligations to its shareholders and others are understood and met. |
3.2 | As a non-executive director you shall have the same general legal responsibilities to the Company as any other director. You are expected to perform your duties (whether statutory, fiduciary or common law) faithfully, diligently and to a standard commensurate with the functions of your role and your knowledge, skills and experience. |
3.3 | You shall exercise your powers in your role as a non-executive director having regard to relevant obligations under prevailing law and regulation, including the Companies Act 2006 and the AIM Rules for Companies relating to the AIM market operated by the London Stock Exchange. |
3.4 | You shall have particular regard to the general duties of directors in Part 10, Chapter 2 of the Companies Act 2006, including the duty to promote the success of the Company under which all directors must act in the way they consider, in good faith, would be most likely to promote the success of the Company for the benefit of its members as a whole. In doing so, as a director, you must have regard (among other matters) to: |
3.4.1 | the likely consequences of any decision in the long term; |
3.4.2 | the interests of the Company’s employees; |
3.4.3 | the need to foster the Company’s business relationships with suppliers, customers and others; |
3.4.4 | the impact of the Company’s operations on the community and the environment; |
3.4.5 | the desirability of the Company maintaining a reputation for high standards of business conduct; and |
3.4.6 | the need to act fairly as between the members of the Company. |
3.5 | In your role as a non-executive director, you shall also be required to: |
3.5.1 | constructively challenge and help develop proposals on strategy; |
3.5.2 | scrutinise the performance of management in meeting agreed goals and objectives, and monitor the reporting of performance; |
3
3.5.3 | satisfy yourself on the integrity of financial information and that financial controls and systems of risk management are robust and defensible; |
3.5.4 | be responsible for determining appropriate levels of remuneration of executive directors and have a prime role in appointing and, where necessary, removing senior management and in succession planning; |
3.5.5 | devote time to developing and refreshing your knowledge and skills; |
3.5.6 | uphold high standards of integrity and probity and support the executive directors in instilling the appropriate culture, values and behaviours in the boardroom and beyond; |
3.5.7 | insist on receiving high-quality information sufficiently in advance of Board meetings; |
3.5.8 | take into account the views of shareholders and other stakeholders where appropriate; |
3.5.9 | make sufficient time available to discharge your responsibilities effectively; |
3.5.10 | exercise relevant powers under, and abide by, the Articles; |
3.5.11 | disclose the nature and extent of any direct or indirect interest you may have in any matter being considered at a Board or committee meeting and, except as permitted under the Articles, you will not vote on any resolution of the Board, or of one of its committees, on any matter where you have any direct or indirect interest; |
3.5.12 | immediately report your own wrongdoing or the wrongdoing or proposed wrongdoing of any employee or other director of the Company of which you become aware to the chairman; |
3.5.13 | exercise your powers as a director in accordance with the Company’s policies and procedures; and |
3.5.14 | not do anything that would cause you to be disqualified from acting as a director. |
3.6 | Unless the Board specifically authorises you to do so, you shall not enter into any legal or other commitment or contract on behalf of the Company. |
3.7 | You shall be entitled to request all relevant information about the Company’s affairs as is reasonably necessary to enable you to discharge your duties. |
4 | Fees and Expenses |
4.1 | You shall be paid an annual gross fee of £50,000 (current at the date of this letter), which shall be paid in equal instalments monthly in arrears after deduction of any taxes and other amounts that are required by law. This annual fee shall be subject to an annual review by the Board. This fee covers all duties, including service on any Board committee. |
4.2 | The Company shall reimburse you for all reasonable and properly documented expenses that you incur in performing the duties of your office. |
4
4.3 | On termination of your appointment, you shall only be entitled to such fees as may have accrued to the date of termination, together with reimbursement in the normal way of any expenses properly incurred before that date. |
5 | Independent Professional Advice |
In some circumstances you may consider that you need professional advice in the furtherance of your duties and it may be appropriate for you to seek advice from independent advisers at the Company’s expense. A copy of the Board’s agreed procedure under which directors may obtain such independent advice is available from the Board. The Company shall reimburse the reasonable cost of expenditure incurred by you in accordance with its policy.
6 | Outside Interests |
6.1 | You have already disclosed to the Board the significant commitments you have outside your role in the Company, including with respect to your role as Senor Vice President, Global Head of Regulatory Affairs, Medical Documentation and R&D Quality at H. Lundbeck A/S and Non-Executive Director at iQure Pharma Inc. You must inform the chairman in advance of any changes to these commitments. |
6.2 | It is accepted and acknowledged that you have business interests other than those of the Company and have declared any conflicts that are apparent to you at present. If you become aware of any further potential or actual conflicts of interest, these should be disclosed to the chairman and company secretary as soon as you become aware of them. |
6.3 | The Board has determined that you are independent according to the provisions of the QCA Corporate Governance Code. |
7 | Confidentiality |
7.1 | You acknowledge that all information that should be reasonably understood by you to be confidential or proprietary information of the Company, and that is furnished or disclosed to you by the Company in the provision of your services to the Company, is confidential to the Company and should not be released, communicated or disclosed to third parties or used for any reason other than in the interests of the Company, either during your appointment or following termination (by whatever means), without prior clearance from the chairman. This restriction shall (a) not apply to any disclosure required by law or by the requirements or regulations of any applicable regulatory authority, (b) cease to apply to any confidential information which may (other than by reason of your breach) become available to the public generally and (c) otherwise cease to apply to you on the date that is five (5) years following the termination of your service as a director of the Company. Notwithstanding the foregoing, it is understood that this letter shall not prohibit or otherwise restrict you from using or disclosing information that was either known to you prior to your appointment or that was independently learned by you outside of your relationship as a director of the Company. |
7.2 | Nothing in this paragraph 7 shall prevent you from disclosing information which you are entitled to disclose under the Public Interest Disclosure Act 1998, provided that the disclosure is made in accordance with the provisions of that Act. |
5
8 | Inside Information and Dealing in the Company’s Shares |
8.1 | Your attention is drawn to the requirements under both law and regulation as to the disclosure of inside information, in particular to AIM Rule 11, the EU Market Abuse Regulation (Regulation 596/2014), the Disclosure Guidance and Transparency Rules of the Financial Conduct Authority and section 52 of the Criminal Justice Act 1993 on insider dealing. You should avoid making any statements that might risk a breach of these requirements. If in doubt, please contact the chairman or company secretary. |
8.2 | During your period of appointment you are required to comply with the provisions of such code as the Company may adopt from time to time which sets out the terms for dealings by directors in the Company’s publicly traded or quoted securities. A copy of the current share dealing code adopted by the Company will be provided to you separately. |
9 | Training |
On an ongoing basis, and further to the annual evaluation process, the Company will arrange for you to develop and refresh your skills and knowledge in areas which are mutually identified as being likely to be required, or of benefit to you, in carrying out your duties effectively. You should try to make yourself available for any relevant training sessions which may be organised for the Board.
10 | Review Process |
The performance of individual directors and the whole Board and its committees is evaluated annually. If, in the interim, there are any matters which cause you concern about your role you should discuss them with the chairman as soon as you can.
11 | Insurance and Indemnity |
11.1 | The Company has directors’ and officers’ liability insurance with an indemnity limit of £5,000,000 and it intends to maintain such cover for the full term of your appointment and for a period of not less than 6 years after it terminates. A copy of the policy document is available from the Board. |
11.2 | The Company shall grant you a deed of indemnity against certain liabilities that may be incurred as a result of your office to the extent permitted by section 234 of the Companies Act 2006. |
12 | Changes to Personal Details |
You shall advise the company secretary promptly of any change in your address or other personal contact details.
13 | Return of Property |
On termination of your appointment with the Company however arising, or at any time at the Board’s request, you shall immediately return to the Company all documents, records, papers or other property belonging to the Company or any company in the Company’s group which may be in your possession or under your control, and which relate in any way to the Company’s or a group company’s business affairs and you shall not retain any copies thereof.
6
14 | Moral Rights |
You hereby irrevocably waive any moral rights in all works prepared by you, in the provision of your services to the Company, to which you are now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agree not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such works or other materials, infringes your moral rights.
15 | Data Protection |
15.1 | By signing this letter you consent to the Company holding and processing data about you for legal, personnel, administrative and management purposes including, as appropriate: |
15.1.1 | information about your physical or mental health or condition in order to monitor sick leave and take decisions as to your fitness to perform your duties; or |
15.1.2 | your racial or ethnic origin or religious or similar beliefs in order to monitor compliance with equal opportunities legislation; or |
15.1.3 | information relating to any criminal proceedings in which you have been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties. |
15.2 | You consent to the Company making such information available to any of its group companies, those who provide products or services to the Company or any company in the Company’s group (such as advisers and payroll administrators), regulatory authorities, potential or future employers, governmental or quasi-governmental organisations and potential purchasers of the Company or the business in which you work. |
15.3 | You also consent to the transfer of such information to the Company’s or any group company’s business contacts outside the European Economic Area in order to further their business interests even where the country or territory in question does not maintain adequate data protection standards. |
16 | Third Party Rights |
No one other than you and the Company shall have any rights to enforce the terms of this letter.
17 | Entire Agreement |
17.1 | This letter and any document referred to in it constitutes the entire terms and conditions of your appointment and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and the Company, whether written or oral, relating to its subject matter. |
17.2 | You agree that you shall have no remedies in respect of any representation, assurance or warranty (whether made innocently or negligently) that is not set out in this letter and you shall not have any claim for innocent or negligent misrepresentation based on any statement in this letter. |
7
18 | Variation |
No variation of this letter shall be effective unless it is in writing and signed by you and the Company (or respective authorised representatives).
19 | Governing Law and Jurisdiction |
Your appointment with the Company and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and you and the Company irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this appointment or its subject matter or formation (including non-contractual disputes or claims).
Please indicate your acceptance of these terms by signing and returning the attached copy of this letter.
Yours sincerely
Axel Glasmacher
Chairman
For and on behalf of 4D pharma plc
8
I confirm and agree to the above terms of my appointment as a non-executive director of 4D pharma plc as set out in this letter.
Signed on August 2020 by Katrin Rupalla
9
Exhibit 10.10
9 Bond Court
|
|
Tel: 0113 895 0130 | |
www.4Dpharmaplc.com |
Private & Confidential
Dr Sandy Macrae 1241 Shrader Street San Francisco CA 94117 USA |
|
19 August 2019
Dear Sandy
Letter of appointment
The board of directors (Board) of 4D pharma plc (Company) has appointed you as non-executive director. This letter sets out the terms of your appointment. If you are unhappy with any of the terms, or need any more information, please let me know.
By accepting this appointment, you agree that this letter is a contract for services and is not a contract of employment and you confirm that you are not subject to any restrictions which prevent you from holding office as a director of the Company.
1. | Appointment |
1.1 | Subject to the remaining provisions of this letter, your appointment shall continue unless terminated by either party giving to the other three months’ prior written notice. |
1.2 | Your appointment is subject to the Company’s articles of association, as amended from time to time (Articles). Nothing in this letter shall be taken to exclude or vary the terms of the Articles as they apply to you as a director of the Company. You are required to retire and seek re-election by the shareholders at the Company’s annual general meeting (AGM) as required by the Articles. The Articles require any director appointed by the board to retire and seek re-election at the next AGM; and then generally one third of the directors to retire by rotation and seek re-election at each AGM. |
Registered Office: 4D pharma plc 9 Bond Court Leeds LS1 2JZ United Kingdom
Registered In England and Wales, Company Number 08840579
1.3 | Continuation of your appointment is contingent on your continued satisfactory performance and re-election by the shareholders and any relevant statutory provisions relating to removal of a director. If the shareholders do not re-elect you as a director, or you are retired from office under the Articles, your appointment shall terminate automatically, with immediate effect and without compensation beyond termination. |
1.4 | You may be required to serve on one or more Board committees. You will be provided with the relevant terms of reference on your appointment to such a committee. |
1.5 | Notwithstanding paragraph 1.1 to paragraph 1.4, the Company may terminate your appointment with immediate effect if you have: |
1.5.1 | committed a material breach of your obligations under this letter; |
1.5.2 | committed any serious or repeated breach or non-observance of your obligations to the Company (which include an obligation not to breach your statutory, fiduciary or common-law duties); |
1.5.3 | been guilty of any fraud or dishonesty or acted in any manner which, in the Company’s opinion, brings or is likely to bring you or the Company into disrepute or is materially adverse to the Company’s interests; |
1.5.4 | been convicted of an arrestable criminal offence other than a road traffic offence for which a fine or non-custodial penalty is imposed; |
1.5.5 | been declared bankrupt or have made an arrangement with or for the benefit of your creditors; or |
1.5.6 | been disqualified from acting as a director. |
1.6 | On termination of your appointment, you shall, at the Company’s request, resign from your office as director of the Company and any offices you hold in any of the Company’s group companies. |
1.7 | If matters arise which cause you concern about your role, you should discuss these matters with the chairman. If you have any concerns which cannot be resolved, and you choose to resign for that, or any other, reason, you should provide an appropriate written statement to the chairman for circulation to the Board. |
2. | Time Commitment |
2.1 | You will be expected to devote such time as is necessary for the proper performance of your duties. This will include attendance at bimonthly Board meetings and the AGM, meetings with the non-executive directors, meetings with shareholders and meetings forming part of the Board evaluation process and updating and training meetings. In addition, you will be required to consider all relevant papers before each meeting. Unless urgent and unavoidable circumstances prevent you from doing so, it is expected that you will attend the meetings outlined in this paragraph. |
-2-
2.2 | The nature of the role makes it impossible to be specific about the maximum time commitment. You may be required to devote additional time to the Company in respect of preparation time and ad hoc matters which may arise and particularly when the Company is undergoing a period of increased activity. At certain times it may be necessary to convene additional Board, committee or shareholder meetings. |
2.3 | By accepting this appointment, you confirm that, taking into account all of your other commitments, you are able to allocate sufficient time to the Company to discharge your responsibilities effectively. |
3. Role and Duties
3.1 | The Board as a whole is collectively responsible for the success of the Company. The Board’s role is to: |
3.1.1 | provide entrepreneurial leadership of the Company within a framework of prudent and effective controls which enable risk to be assessed and managed; |
3.1.2 | set the Company’s strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and |
3.1.3 | set the Company’s values and standards and ensure that its obligations to its shareholders and others are understood and met. |
3.2 | As a non-executive director you shall have the same general legal responsibilities to the Company as any other director. You are expected to perform your duties (whether statutory, fiduciary or common law) faithfully, diligently and to a standard commensurate with the functions of your role and your knowledge, skills and experience. |
3.3 | You shall exercise your powers in your role as a non-executive director having regard to relevant obligations under prevailing law and regulation, including the Companies Act 2006 and the Rules for Companies relating to the AIM market operated by the London Stock Exchange. |
3.4 | You shall have particular regard to the general duties of directors in Part 10, Chapter 2 of the Companies Act 2006, including the duty to promote the success of the Company under which all directors must act in the way they consider, in good faith, would be most likely to promote the success of the Company for the benefit of its members as a whole. In doing so, as a director, you must have regard (among other matters) to: |
3.4.1 the likely consequences of any decision in the long term;
3.4.2 the interests of the Company’s employees;
3.4.3 the need to foster the Company’s business relationships with suppliers, customers and others;
3.4.4 the impact of the Company’s operations on the community and the environment;
-3-
3.4.5 the desirability of the Company maintaining a reputation for high standards of business conduct; and
3.4.6 the need to act fairly as between the members of the Company.
3.5 In your role as a non-executive director, you shall also be required to:
3.5.1 | constructively challenge and help develop proposals on strategy; |
3.5.2 | scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance; |
3.5.3 | satisfy yourself on the integrity of financial information and that financial controls and systems of risk management are robust and defensible; |
3.5.4 | be responsible for determining appropriate levels of remuneration of executive directors and have a prime role in appointing and, where necessary, removing senior management and in succession planning; |
3.5.5 | devote time to developing and refreshing your knowledge and skills; |
3.5.6 | uphold high standards of integrity and probity and support the executive directors in instilling the appropriate culture, values and behaviours in the boardroom and beyond; |
3.5.7 | insist on receiving high-quality information sufficiently in advance of Board meetings; |
3.5.8 | take into account the views of shareholders and other stakeholders where appropriate; |
3.5.9 | make sufficient time available to discharge your responsibilities effectively; |
3.5.10 | exercise relevant powers under, and abide by, the Articles; |
3.5.11 | disclose the nature and extent of any direct or indirect interest you may have in any matter being considered at a Board or committee meeting and, except as permitted under the Articles you will not vote on any resolution of the Board, or of one of its committees, on any matter where you have any direct or indirect interest; |
3.5.12 | immediately report your own wrongdoing or the wrongdoing or proposed wrongdoing of any employee or other director of the Company of which you become aware to the chairman; |
3.5.13 | exercise your powers as a director in accordance with the Company’s policies and procedures; and |
3.5.14 | not do anything that would cause you to be disqualified from acting as a director. |
3.6 | Unless the Board specifically authorises you to do so, you shall not enter into any legal or other commitment or contract on behalf of the Company. |
3.7 | You shall be entitled to request all relevant information about the Company’s affairs as is reasonably necessary to enable you to discharge your duties. |
-4-
4. | Fees and Expenses |
4.1 | You shall be paid an annual fee of £50,000 gross (current at the date of this letter), which shall be paid in equal instalments monthly in arrear after deduction of any taxes and other amounts that are required by law, which shall be subject to an annual review by the Board. This fee covers all duties, including service on any Board committee. |
4.2 | The Company shall reimburse you for all reasonable and properly documented expenses that you incur in performing the duties of your office. |
4.3 | On termination of your appointment, you shall only be entitled to such fees as may have accrued to the date of termination, together with reimbursement in the normal way of any expenses properly incurred before that date. |
5. | Independent Professional Advice |
In some circumstances you may consider that you need professional advice in the furtherance of your duties and it may be appropriate for you to seek advice from independent advisers at the Company’s expense. A copy of the Board’s agreed procedure under which directors may obtain such independent advice is available from the Board. The Company shall reimburse the reasonable cost of expenditure incurred by you in accordance with its policy.
6. | Outside Interests |
6.1 | You have already disclosed to the Board the significant commitments you have outside your role in the Company, including with respect to your role as President and Chief Executive Officer of, and as a member of the board of directors of, Sangamo Therapeutics, Inc. You must inform the chairman in advance of any changes to these commitments. |
6.2 | It is accepted and acknowledged that you have business interests other than those of the Company and have declared any conflicts that are apparent to you at present. If you become aware of any further potential or actual conflicts of interest, these should be disclosed to the chairman and company secretary as soon as you become aware of them. |
7. | Confidentiality |
7.1 | You acknowledge that all information that should be reasonably understood by you to be confidential or proprietary information of the Company and that is furnished or disclosed to you by the Company in the provision of your services to the Company is confidential to the Company and should not be released, communicated or disclosed to third parties or used for any reason other than in the interests of the Company, either during your appointment or following termination (by whatever means), without prior clearance from the chairman. This restriction shall (a) not apply to any disclosure required by law or by the requirements or regulations of any applicable regulatory authority, (b) cease to apply to any confidential information which may (other than by reason of your breach) become available to the public generally and (c) otherwise cease to apply to you on the date that is five (5) years following the termination of your service as a director of the Company. Notwithstanding the foregoing, it is understood that this letter shall not prohibit or otherwise restrict you from using or disclosing information that was either known to you prior to your appointment or that was independently learned by you outside of your relationship as a director of the Company. |
-5-
7.2 | Nothing in this paragraph 7 shall prevent you from disclosing information which you are entitled to disclose under the Public Interest Disclosure Act 1998, provided that the disclosure is made in accordance with the provisions of that Act. |
8. | Inside Information and Dealing in the Company’s Shares |
8.1 | Your attention is drawn to the requirements under both law and regulation as to the disclosure of inside information, in particular to the EU Market Abuse Regulation, the Disclosure and Transparency Rules of the UK Listing Authority and section 52 of the Criminal Justice Act 1993 on insider dealing. You should avoid making any statements that might risk a breach of these requirements. If in doubt, please contact the chairman or company secretary. |
8.2 | During your period of appointment you are required to comply with the provisions of such code as the Company may adopt from time to time which sets out the terms for dealings by directors in the Company’s publicly traded or quoted securities. A copy of the current share dealing code adopted by the Company will be provided to you separately. |
9. | Training |
On an ongoing basis, and further to the annual evaluation process, the Company will arrange for you to develop and refresh your skills and knowledge in areas which are mutually identified as being likely to be required, or of benefit to you, in carrying out your duties effectively. You should try to make yourself available for any relevant training sessions which may be organised for the Board.
10. | Review Process |
The performance of individual directors and the whole Board and its committees is evaluated annually. If, in the interim, there are any matters which cause you concern about your role you should discuss them with the chairman as soon as you can.
11. | Insurance and Indemnity |
11.1 | The Company has directors’ and officers’ liability insurance with an indemnity limit of £5,000,000 and it intends to maintain such cover for the full term of your appointment and for a period of not less than 6 years after it terminates. A copy of the policy document is available from the Board. |
11.2 | The Company shall grant you a deed of indemnity against certain liabilities that may be incurred as a result of your office to the extent permitted by section 234 of the Companies Act 2006. |
12. | Changes to Personal Details |
You shall advise the company secretary promptly of any change in your address or other personal contact details.
-6-
13. | Return of Property |
On termination of your appointment with the Company however arising, or at any time at the Board’s request, you shall immediately return to the Company all documents, records, papers or other property belonging to the Company or any company in the Company’s group which may be in your possession or under your control, and which relate in any way to the Company’s or a group company’s business affairs and you shall not retain any copies thereof.
14. | Moral Rights |
You hereby irrevocably waive any moral rights in all works prepared by you, in the provision of your services to the Company, to which you are now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agree not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such works or other materials, infringes your moral rights.
15. | Data Protection |
15.1.1 | By signing this letter you consent to the Company holding and processing data about you for legal, personnel, administrative and management purposes including, as appropriate: |
15.1.2 | information about your physical or mental health or condition in order to monitor sick leave and take decisions as to your fitness to perform your duties; or |
15.1.3 | your racial or ethnic origin or religious or similar beliefs in order to monitor compliance with equal opportunities legislation; or |
15.2 | information relating to any criminal proceedings in which you have been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties. |
15.3 | You consent to the Company making such information available to any of its group companies, those who provide products or services to the Company or any company in the Company’s group (such as advisers and payroll administrators), regulatory authorities, potential or future employers, governmental or quasi-governmental organisations and potential purchasers of the Company or the business in which you work. |
15.3 | You also consent to the transfer of such information to the Company’s or any group company’s business contacts outside the European Economic Area in order to further their business interests even where the country or territory in question does not maintain adequate data protection standards. |
-7-
16. | Third Party Rights |
No one other than you and the Company shall have any rights to enforce the terms of this letter.
17. | Entire Agreement |
17.1 | This letter and any document referred to in it constitutes the entire terms and conditions of your appointment and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and the Company, whether written or oral, relating to its subject matter. |
17.2 | 17.2 You agree that you shall have no remedies in respect of any representation, assurance or warranty (whether made innocently or negligently) that is not set out in this letter and you shall not have any claim for innocent or negligent misrepresentation based on any statement in this letter. |
18. | Variation |
No variation of this letter shall be effective unless it is in writing and signed by you and the Company (or respective authorised representatives).
19. | Governing Law and Jurisdiction |
Your appointment with the Company and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and you and the Company irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this appointment or its subject matter or formation (including non-contractual disputes or claims).
Please indicate your acceptance of these terms by signing and returning the attached copy of this letter.
Yours sincerely
Laurie Dale
Company Secretary
For and on behalf of 4D pharma plc
-8-
I confirm and agree to the above terms of my appointment as a non-executive director of 4D pharma plc as set out in this letter.
Signed on August 2019 by Dr Sandy Macrae
-9-
Exhibit 10.11
9 Bond Court | |
Leeds | |
LS1 2JZ | |
Tel: 0113 895 0130 | |
www.4Dpharmaplc.com |
Private & Confidential
Ed Baracchini, Ph.D., M.B.A.
322 Nautilus Street
La Jolla
CA 92037
USA
[06 December 2018]
Dear Ed
Letter of appointment
The board of directors (Board) of 4D pharma plc (Company) has appointed you as non-executive director. This letter sets out the main terms of your appointment. If you are unhappy with any of the terms, or need any more information, please let me know.
By accepting this appointment, you agree that this letter is a contract for services and is not a contract of employment and you confirm that you are not subject to any restrictions which prevent you from holding office as a director.
1 | Appointment |
1.1 | Subject to the remaining provisions of this letter, your appointment shall continue unless terminated by either party giving to the other three months' prior written notice. |
1.2 | Your appointment is subject to the Company's articles of association, as amended from time to time (Articles). Nothing in this letter shall be taken to exclude or vary the terms of the Articles as they apply to you as a director of the Company. You are required to retire and seek re-election by the shareholders at the Company's annual general meeting (AGM) as required by the Articles. The Articles require any director appointed by the board to retire and seek re-election at the next AGM; and then generally one third of the directors to retire by rotation and seek re-election at each AGM. |
1.3 | Continuation of your appointment is contingent on your continued satisfactory performance and re-election by the shareholders and any relevant statutory provisions relating to removal of a director. If the shareholders do not re-elect you as a director, or you are retired from office under the Articles, your appointment shall terminate automatically, with immediate effect and without compensation. |
1.4 | You may be required to serve on one or more Board committees. You will be provided with the relevant terms of reference on your appointment to such a committee. |
1.5 | Notwithstanding paragraph 1.1 to paragraph 1.4, the Company may terminate your appointment with immediate effect if you have- |
1.5.1 | committed a material breach of your obligations under this letter; |
1.5.2 | committed any serious or repeated breach or non-observance of your obligations to the Company (which include an obligation not to breach your statutory, fiduciary or common-law duties); |
1.5.3 | been guilty of any fraud or dishonesty or acted in any manner which, in the Company's opinion, brings or is likely to bring you or the Company into disrepute or is materially adverse to the Company's interests; |
1.5.4 | been convicted of an arrestable criminal offence other than a road traffic offence for which a fine or non-custodial penalty is imposed; |
1.5.5 | been declared bankrupt or have made an arrangement with or for the benefit of your creditors; or |
1.5.6 | been disqualified from acting as a director. |
1.6 | On termination of your appointment, you shall, at the Company's request, resign from your office as director of the Company and any offices you hold in any of the Company's group companies. |
1.7 | If matters arise which cause you concern about your role, you should discuss these matters with the chairman If you have any concerns which cannot be resolved, and you choose to resign for that, or any other, reason, you should provide an appropriate written statement to the chairman for circulation to the Board |
2 | Time Commitment |
2.1 | You will be expected to devote such time as is necessary for the proper performance of your duties This will include attendance at bimonthly Board meetings and the AGM, meetings with the non-executive directors, meetings with shareholders and meetings forming part of the Board evaluation process and updating and training meetings. In addition, you will be required to consider all relevant papers before each meeting. Unless urgent and unavoidable circumstances prevent you from doing so, it is expected that you will attend the meetings outlined in this paragraph. |
2.2 | The nature of the role makes it impossible to be specific about the maximum time commitment. You may be required to devote additional time to the Company in respect of preparation time and ad hoc matters which may arise and particularly when the Company is undergoing a period of increased activity. At certain times it may be necessary to convene additional Board, committee or shareholder meetings. |
2.3 | By accepting this appointment, you confirm that, taking into account all of your other commitments, you are able to allocate sufficient time to the Company to discharge your responsibilities effectively. |
3 | Role and Duties |
3.1 | The Board as a whole is collectively responsible for the success of the Company. The Board's role is to: |
3.1.1 | provide entrepreneurial leadership of the Company within a framework of prudent and effective controls which enable risk to be assessed and managed; |
3.1.2 | set the Company's strategic aims, ensure that the necessary financial and human resources are in place for the Company to meet its objectives, and review management performance; and |
3.1.3 | set the Company's values and standards and ensure that its obligations to its shareholders and others are understood and met. |
3.2 | As a non-executive director you shall have the same general legal responsibilities to the Company as any other director. You are expected to perform your duties (whether statutory, fiduciary or common law) faithfully, diligently and to a standard commensurate with the functions of your role and your knowledge, skills and experience. |
3.3 | You shall exercise your powers in your role as a non-executive director having regard to relevant obligations under prevailing law and regulation, including the Companies Act 2006 and the Rules for Companies relating to the AIM market operated by the London Stock Exchange. |
3.4 | You shall have particular regard to the general duties of directors in Part 10, Chapter 2 of the Companies Act 2006, including the duty to promote the success of the Company under which all directors must act in the way they consider, in good faith, would be most likely to promote the success of the Company for the benefit of its members as a whole. In doing so, as a director, you must have regard (among other matters) to: |
3.4.1 | the likely consequences of any decision in the long term; |
3.4.2 | the interests of the Company's employees; |
3.4.3 | the need to foster the Company's business relationships with suppliers, customers and others; |
3.4.4 | the impact of the Company's operations on the community and the environment; |
3.4.5 | the desirability of the Company maintaining a reputation for high standards of business conduct; and |
3.4.6 | the need to act fairly as between the members of the Company. |
3.5 | In your role as a non-executive director, you shall also be required to: |
3.5.1 | constructively challenge and help develop proposals on strategy; |
3.5.2 | scrutinise the performance of management in meeting agreed goals and objectives and monitor the reporting of performance; |
3.5.3 | satisfy yourself on the integrity of financial information and that financial controls and systems of risk management are robust and defensible; |
3.5.4 | be responsible for determining appropriate levels of remuneration of executive directors and have a prime role in appointing and, where necessary, removing senior management and in succession planning; |
3.5.5 | devote time to developing and refreshing your knowledge and skills; |
3.5.6 | uphold high standards of integrity and probity and support the executive directors in instilling the appropriate culture, values and behaviours in the boardroom and beyond; |
3.5.7 | insist on receiving high-quality information sufficiently in advance of Board meetings |
3.5.8 | take into account the views of shareholders and other stakeholders where appropriate; |
3.5.9 | make sufficient time available to discharge your responsibilities effectively; |
3.5.10 | exercise relevant powers under, and abide by, the Articles; |
3.5.11 | disclose the nature and extent of any direct or indirect interest you may have in any matter being considered at a Board or committee meeting and, except as permitted under the Articles you will not vote on any resolution of the Board, or of one of its committees, on any matter where you have any direct or indirect interest; |
3.5.12 | immediately report your own wrongdoing or the wrongdoing or proposed wrongdoing of any employee or other director of the Company of which you become aware to the chairman. |
3.5.13 | exercise your powers as a director in accordance with the Company's policies and procedures; and |
3.5.14 | not do anything that would cause you to be disqualified from acting as a director. |
3.6 | Unless the Board specifically authorises you to do so, you shall not enter into any legal or other commitment or contract on behalf of the Company. |
3.7 | You shall be entitled to request all relevant information about the Company's affairs as is reasonably necessary to enable you to discharge your duties. |
4 | Fees and Expenses |
4.1 | You shall be paid an annual fee of £50.000 gross (current at the date of this letter), which shall be paid in equal instalments monthly in arrear after deduction of any taxes and other amounts that are required by law, which shall be subject to an annual review by the Board. This fee covers all duties, including service on any Board committee. |
4.2 | The Company shall reimburse you for all reasonable and properly documented expenses that you incur in performing the duties of your office |
4.3 | On termination of your appointment, you shall only be entitled to such fees as may have accrued to the date of termination, together with reimbursement in the normal way of any expenses properly incurred before that date. |
5 | Independent Professional Advice |
In some circumstances you may consider that you need professional advice in the furtherance of your duties and it may be appropriate for you to seek advice from independent advisers at the Company's expense. A copy of the Board's agreed procedure under which directors may obtain such independent advice is available from the Board. The Company shall reimburse the reasonable cost of expenditure incurred by you in accordance with its policy.
6 | Outside Interests |
6.1 | You have already disclosed to the Board the significant commitments you have outside your role in the Company You must inform the chairman in advance of any changes to these commitments. |
6.2 | It is accepted and acknowledged that you have business interests other than those of the Company and have declared any conflicts that are apparent at present. If you become aware of any further potential or actual conflicts of interest, these should be disclosed to the chairman and company secretary as soon as you become aware of them. |
7 | Confidentiality |
7.1 | You acknowledge that all information acquired during your appointment is confidential to the Company and should not be released, communicated or disclosed to third parties or used for any reason other than in the interests of the Company, either during your appointment or following termination (by whatever means), without prior clearance from the chairman This restriction shall not apply to any disclosure required by law or by the requirements or regulations of any applicable regulatory authority, and shall cease to apply to any confidential information which may (other than by reason of your breach) become available to the public generally. |
7.2 | Nothing in this paragraph 7 shall prevent you from disclosing information which you are entitled to disclose under the Public Interest Disclosure Act 1998, provided that the disclosure is made in accordance with the provisions of that Act. |
8 | inside Information and Dealing In the Company's Shares |
8.1 | Your attention is drawn to the requirements under both law and regulation as to the disclosure of inside information, in particular to the EU Market Abuse Regulation, the Disclosure and Transparency Rules of the UK Listing Authority and section 52 of the Criminal Justice Act 1993 on insider dealing. You should avoid making any statements that might risk a breach of these requirements. If in doubt, please contact the chairman or company secretary. |
8.2 | During your period of appointment you are required to comply with the provisions of such code as the Company may adopt from time to time which sets out the terms for dealings by directors in theCompany's publicly traded or quoted securities. A copy of the current share dealing code adopted by the Company will be provided to you separately |
9 | Training |
On an ongoing basis, and further to the annual evaluation process, the Company will arrange for you to develop and refresh your skills and knowledge in areas which are mutually identified as being likely to be required, or of benefit to you, in carrying out your duties effectively You should try to make yourself available for any relevant training sessions which may be organised for the Board.
10 | Review Process |
The performance of individual directors and the whole Board and its committees is evaluated annually. If, in the interim, there are any matters which cause you concern about your role you should discuss them with the chairman as soon as you can.
11 | Insurance and Indemnity |
11.1 | The Company has directors' and officers' liability insurance and it intends to maintain such cover for the full term of your appointment. A copy of the policy document is available from the Board. |
11.2 | The Company shall grant you a deed of indemnity against certain liabilities that may be incurred as a result of your office to the extent permitted by section 234 of the Companies Act 2006. |
12 | Changes to Personal Details |
You shall advise the company secretary promptly of any change in your address or other personal contact details.
13 | Return of Property |
On termination of your appointment with the Company however arising, or at any time at the Board's request, you shall immediately return to the Company all documents, records, papers or other property belonging to the Company or any company in the Company's group which may be in your possession or under your control, and which relate in any way to the Company's or a group company's business affairs and you shall not retain any copies thereof
14 | Moral Rights |
You hereby irrevocably waive any moral rights in all works prepared by you, in the provision of your services to the Company, to which you are now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agree not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such works or other materials, infringes your moral rights.
15 | Data Protection |
15.1 | By signing this letter you consent to the Company holding and processing data about you for legal, personnel, administrative and management purposes including, as appropriate: |
15.1.1 | information about your physical or mental health or condition in order to monitor sick leave and take decisions as to your fitness to perform your duties; or |
15.1.2 | your racial or ethnic origin or religious or similar beliefs in order to monitor compliance with equal opportunities legislation; or |
15.1.3 | information relating to any criminal proceedings in which you have been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties. |
15.2 | You consent to the Company making such information available to any of its group companies, those who provide products or services to the Company or any company in the Company's group (such as advisers and payroll administrators), regulatory authorities, potential or future employers, governmental or quasi-governmental organisations and potential purchasers of the Company or the business in which you work. |
15.3 | You also consent to the transfer of such information to the Company's or any group company's business contacts outside the European Economic Area in order to further their business interests even where the country or territory in question does not maintain adequate data protection standards. |
16 | Third Party Rights |
No one other than you and the Company shall have any rights to enforce the terms of this letter
17 | Entire Agreement |
17.1 | This letter and any document referred to in it constitutes the entire terms and conditions of your appointment and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between you and the Company, whether written or oral, relating to its subject matter. |
17.2 | You agree that you shall have no remedies in respect of any representation, assurance or warranty (whether made innocently or negligently) that is not set out in this letter and you shall not have any claim for innocent or negligent misrepresentation based on any statement in this letter. |
18 | Variation |
No variation of this letter shall be effective unless it is in writing and signed by you and the Company (or respective authorised representatives)
19 | Governing Law and Jurisdiction |
Your appointment with the Company and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales and you and the Company irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this appointment or its subject matter or formation (including non-contractual disputes or claims).
Please indicate your acceptance of these terms by signing and returning the attached copy of this letter
Yours sincerely
Laurie Dale
Company Secretary
For and on behalf of 4D pharma plc
I confirm and agree to the above terms of my appointment as a non-executive director of 4D pharma plc as set out in this letter.
Signed on 9th December 2018 by Ed Baracchini
Registered Office. 4D pharma plc 9 Bond
Court Leeds LS1 2JZ United Kingdom
Registered In England and Wales, Company Number 08840579
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use in this Amendment No. 3 to the Registration Statement (No.333-250986) on Form F-4 of 4D pharma plc of our report dated November 25, 2020, relating to the consolidated financial statements of 4D pharma plc, appearing in the Proxy Statement/Prospectus, which is part of this Registration Statement.
We also consent to the reference to our firm under the heading "Experts" in such Proxy Statement/Prospectus.
/s/ RSM US LLP
Boston, MA
February 16, 2021
1
Exhibit 23.2
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of 4D Pharma on Amendment No. 3 to Form F-4 [File No. 333-250986], of our report dated April 30, 2020, with respect to our audits of the financial statements of Longevity Acquisition Corp. as of February 29, 2020 and February 28, 2019 and for year ended February 29, 2020 and for the period from March 9, 2018 (inception) through February 28, 2019, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.
/s/ Marcum llp
Marcum llp
New York, NY
February 16, 2021