Exhibit 1.2

 

AMENDMENT NO. 1 TO AT MARKET ISSUANCE SALES AGREEMENT

 

 November 8, 2017

 

Ladies and Gentlemen:

Prana Biotechnology Ltd (the “ Company ”), B. Riley FBR, Inc. (successor by merger to FBR Capital Markets & Co.) (“ B. Riley FBR ”) and JonesTrading Institutional Services LLC (“ JonesTrading ” and together with B. Riley FBR, the “ Agents ”) are parties to that certain At Market Issuance Sales Agreement dated October 13, 2016 (the “ Original Agreement ”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement.  The parties, intending to be legally bound, hereby amend the Original Agreement as follows (to be effective as set forth in paragraph 6 below):

 

1.               Section 1 of the Original Agreement is hereby amended to replace:

“The Company has filed, in accordance with the provisions of the United States Securities Act of 1933, as amended (the “ Securities Act ”) and the rules and regulations thereunder (the “ Securities Act Regulations ”), with the Commission a registration statement on Form F-3 (File No. 333-199783), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”),   and the rules and regulations thereunder (the “ Exchange Act Regulations ”).”

With,

“The Company has filed, in accordance with the provisions of the United States Securities Act of 1933, as amended (the “ Securities Act ”) and the rules and regulations thereunder (the “ Securities Act Regulations ”), with the Commission a registration statement on Form F-3 (File No. 333-220886), including a base prospectus, relating to certain securities, including the Placement Shares to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or will file in accordance with the provisions of the Securities Exchange Act of 1934, as amended (the “ Exchange Act ”),   and the rules and regulations thereunder (the “ Exchange Act Regulations ”).”

2.               Section 3(a) is deleted in its entirety and replaced with the following:

“Subject to the terms and conditions of this Agreement, for the period specified in a Placement Notice, the Designated Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices and applicable state and federal laws, rules and regulations and the rules of the Nasdaq Stock Market LLC (the “ Exchange ”), to sell the Placement Shares up to the amount specified, and otherwise in accordance with the terms of such Placement Notice. The Designated Agent will provide written confirmation to the Company no later than the opening of the Trading Day (as defined below) immediately following the Trading Day on which it has made sales of Placement Shares hereunder setting forth the number of Placement Shares sold on such day, the compensation payable by the Company to the Designated Agent pursuant to Section 2 with respect to such sales, and the Net Proceeds (as defined below) payable to the Company, with an itemization of the deductions made by the Designated Agent (as set forth in Section 5(b)) from the gross proceeds that it receives from such sales. Subject to the terms of the Placement Notice, the Designated Agent may sell Placement Shares by any method permitted by law deemed to be an “at the market offering” as defined in Rule 415 of the Securities Act Regulations. “ Trading Day ” means any day on which ADSs are purchased and sold on the Exchange.”

3.               Section 6(v) is deleted in its entirety and replaced with the following:

“(i) At the time of filing the Registration Statement and (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), the Company met the then applicable requirements for use of Form F-3 under the Securities Act, including compliance with General Instruction I.B.5 of Form F-3. As of the close of trading on the Exchange on October 23, 2017, the aggregate market value of the notional number of ADSs representing the number of the outstanding voting and non-voting common equity (as defined in Rule 405) of the Company held by persons other than affiliates of the Company (pursuant to Rule 144 of the Securities Act, those that directly, or indirectly through one or more intermediaries, control, or are controlled by, or are under common control with, the Company)  (the “ Non-Affiliate Shares ”), was approximately $30,058,235 (calculated by multiplying (x) the price at which the ADSs of the Company were last sold on the Exchange on October 23, 2017)  times (y) the number of Non-Affiliate Shares).  The Company is not a shell company (as defined in Rule 405 under the Securities Act) and has not been a shell company for at least 12 calendar months previously and if it has been a shell company at any time previously, has filed current Form 10 information (as defined in Instruction I.B.5 of Form F-3) with the Commission at least 12 calendar months previously reflecting its status as an entity that is not a shell company.”

4.               All references to “October 13, 2016” set forth in Schedule 1 and Exhibit 7(l) of the Original Agreement are revised to read “October 13, 2016 (as amended by Amendment No. 1 to At Market Issuance Sales Agreement, dated November 8, 2017)”.

5.               Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.

6.               Entire Agreement; Amendment; Severability . This Amendment No. 1 to the Original Agreement together with the Original Agreement (including all schedules and exhibits attached hereto and thereto and Placement Notices issued pursuant hereto and thereto) constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment No. 1; provided, however , that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement, and the reference to “time of execution of this Agreement” set forth in Section 13(a) shall continue to refer to the time of execution of the Original Agreement.

7.               Applicable Law; Consent to Jurisdiction . This amendment shall be governed by, and construed in accordance with, the internal laws of the State of New York without regard to the principles of conflicts of laws. Each party hereby irrevocably submits to the non-exclusive jurisdiction of the state and federal courts sitting in the City of New York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy thereof (certified or registered mail, return receipt requested) to such party at the address in effect for notices to it under this amendment and agrees that such service shall constitute good and sufficient service of process and notice thereof.  Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law.

8.               Waiver of Jury Trial . The Company and the Agents each hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this amendment or any transaction contemplated hereby.

9.               Counterparts . This amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission.

  1O.              Notices . All notices or other communications required or permitted to be given by any party to any other party pursuant to the terms of this Agreement shall be in writing, unless otherwise specified, and if sent to the Agents, shall be delivered to:

 

B. Riley FBR, Inc.

299 Park Avenue

New York, NY 10171

Attention: General Counsel

Telephone: (212) 457-9947

Email:    atmdesk@brileyfbr.com

JonesTrading Institutional Services LLC

32133 Lindero Canyon Road

Suite 208

Westlake Village, CA 91361

Fax No.: (818) 879-5481

Attention: Trent McNair

Email:    trentm@jonestrading.com

With a copy to:

JonesTrading Institutional Services LLC

155 Federal Street, Suite 1002

Boston, MA 02110

Attention: Steve Chmielewski, Esq.

E-mail: steve@jonestrading.com

with a copy to:

 

Duane Morris LLP

One Riverfront Plaza

1037 Raymond Boulevard, Suite 1800

Newark, NJ 07102

Attention: Dean M. Colucci

Telephone: (973) 424-2020

Email: dmcolucci@duanemorris.com

 

and if to the Company, shall be delivered to:

 

Prana Biotechnology Ltd

Level 3, 460 Bourke Street

Melbourne, VIC 3000, Australia

Attention: Kathryn Andrews

Telephone: 011-61-3-9349-4906

Facsimile: 011-61-3-9348-0377

Email: kandrews@pranabio.com

 

with a copy to:

 

Carter Ledyard & Milburn LLP

2 Wall Street

New York, NY 10005

Attention: Steven J. Glusband, Esq.

Telephone: 212-238-8605

Facsimile: 212-732-3232

Email: glusband@clm.com

 

[Remainder of Page Intentionally Blank]

If the foregoing correctly sets forth the understanding among the Company and the Agents, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding amendment to the Original Agreement between the Company and the Agents.

 

Exhibit 5.1

 

LETTERHEAD OF QUINERT RODDA & ASSOCIATES

 

Prana Biotechnology Limited

Level 2, 369 Royal Parade,

Parkville, Victoria 3052

Australia

 

November 8, 2017

 

Dear Sirs,

 

RE:            PROSPECTUS SUPPLEMENT TO REGISTRATION STATEMENT ON FORM F‑3

 

We are acting as Australian counsel to Prana Biotechnology Limited ACN 080 699 065, an Australian company (the “Company”) in connection with the filing with the Securities and Exchange Commission (the “Commission”) of a prospectus supplement (the “Prospectus Supplement”) to the Company’s Registration Statement on Form F-3 (File No. 333-220886) (the “Registration Statement”), under the Securities Act of 1933, as amended .

 

The Prospectus Supplement relates to the issuance and sale from time to time by the Company of up to $10,019,412 of ordinary shares, no par value per share (the “Ordinary Shares”), represented by American Depositary Shares (the “Placement Shares”), of the Company pursuant to the At Market Issuance Sales Agreement, dated as of October 13, 2016, as amended by Amendment No. 1 dated November 8, 2017 (together, the “Sales Agreement”), by and between the Company, B. Riley FBR, Inc. (successor by merger to FBR Capital Markets & Co.) and JonesTrading Institutional Services LLC. Each Placement Share represents sixty (60) Ordinary Shares.  The transactions contemplated by the Sales Agreement are referred to in this opinion letter as the “Offering.”

 

We have examined the Registration Statement, the base prospectus included in the Registration Statement, as supplemented by the Prospectus Supplement, and the Sales Agreement. In our examination we have assumed with your permission and without independent verification:

 

a)

the genuineness of all signatures and the authenticity of all documents, instruments and certificates submitted to us as originals and the exact conformity with the authentic originals of all documents, instruments and certificates submitted to us as copies or forms or originals;

 

b)

that each party to each document has all the requisite power and authority (corporate and otherwise) to execute and deliver and perform its obligations thereunder;

 

c)

that any documents which purport to be governed by the law of any jurisdiction other than the law of Victoria, Australia are legal, valid and binding obligations on all of the parties thereto and under the applicable law and that none of the execution, delivery or performance of any document by any party thereto violates or contravenes or is rendered invalid, not binding or unenforceable under any applicable law under any jurisdiction other than the law of Victoria, Australia;

 

d)

that each party to each document, other than the Company, is duly organized validly existing and in good standing under the laws of its jurisdiction of incorporation; and

 

e)

that the execution and delivery by each party of each document and the performance by each party of its obligations under each document to which it is a party has been duly authorized by all necessary corporate and other actions.

 

As to various questions of fact relevant to this opinion, we have relied upon and assumed the accuracy of, without independent verification, certificates and oral or written statements or the information of or from public officials, officers or representatives of the Company and others.

 

We have relied conclusively upon certified copies of the Company’s Constitution, certificates of officers of the Company, the contents of the minute books and other records of corporate proceedings of the Company, as to various factual matters.  We have relied as to matters of fact, without independent verification, upon certificates of officers of the Company.

 

This opinion which shall be governed by and construed in accordance with the laws of Victoria, Australia, is given only with respect to Australian law that is in effect on the date of this opinion.  We have not investigated the laws of any jurisdiction other than Australia.  We express no opinion as to tax law or international law.  We have assumed that any applicable law (other than Australian law) does not affect this opinion.

 

We are qualified to practice law in Victoria, Australia and do not express any opinions in this letter concerning any laws other than the laws of Australia to the extent necessary to render the opinions set forth herein.  We are not opining on, and we assume no responsibility as to the applicability to or effect on any of the matters covered herein of the laws of any jurisdiction.

 

Based on and subject to the foregoing and in reliance thereof, in our opinion, the Placement Shares when sold as described in the Prospectus Supplement, will be validly issued, fully paid and non-assessable.

 

This opinion speaks solely as of its date and we undertake no obligation to advise you of any changes (including but not limited to any subsequently enacted, published or reported laws, regulations or individual decisions) that may occur or come to our attention after the date hereof.

 

This opinion letter is furnished at your request and is solely for your benefit and may not be used, circulated, quoted or referred to by you or by any other person or entity or for any other purpose without our express prior written consent.

 

We hereby consent to the filing of this opinion.

 

Yours faithfully,

QUINERT RODDA & ASSOCIATES

/s/ David Rodda

DAVID RODDA

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