Page 11 of 16 – SEC Filing
Ordinary Share Purchase Warrant
In connection with the Private Placement, as described in Item 3 above, Galen LP and Galen International purchased an aggregate of 419,728 New Warrants. The
material terms and provisions of the New Warrants are summarized below.
Term. The New Warrants are immediately exercisable and will
expire on July 31, 2018. The term can also be extended by the Issuer at its sole discretion.
Anti-Dilution Protection. The
warrants contain full ratchet anti-dilution protection upon the issuance of any Ordinary Shares, securities convertible into ordinary shares or certain other issuances at a price below the then-existing exercise price of the warrants, with certain
exceptions.
Exercise Price. The exercise price of the warrants is $5.80 per whole Ordinary Share. The exercise price is subject to
adjustment in the event of certain share dividends and distributions, share splits, share combinations, share issuances, reclassifications or similar events affecting the Ordinary Shares, as well as the anti-dilution protection described above. The
exercise price can also be lowered by the Issuer at its sole discretion.
Exercisability. Holders may exercise the warrants
immediately and at any time during the applicable term of the warrant. Subject to certain exceptions, a holder of the warrants will not have the right to exercise any portion of such securities if the holder, together with its affiliates, would
beneficially own in excess of 9.99% of the number of the Issuers ordinary shares outstanding immediately after the exercise. The warrants will be exercisable, at the option of each holder, in whole or in part, by delivering to the Issuer a
duly executed exercise notice accompanied by payment in full in cash for the number of Ordinary Shares purchased upon such exercise.
Registration
Rights Agreement
In connection with the Private Placement, the Issuer also entered into a Registration Rights Agreement, dated October 24, 2017,
with the Subscribers (the Registration Rights Agreement) pursuant to which it has agreed to file, within 15 days of the closing of the Private Placement, a registration statement with the Securities and Exchange Commission (the
SEC) to register the Shares and the New Warrants for resale, which registration statement is required to become effective within 45 days following the closing. The Issuer will be required to pay certain cash amounts as liquidated damages
of one percent (1%) of the aggregate purchase price of the New Ordinary Shares and Warrants that are registrable securities per month (up to a cap of 10% of the aggregate subscription price of the New Ordinary Shares and Warrants) if it does
not meet certain of its obligations under the Registration Rights Agreement with respect to the registration of the Shares and the New Warrants.
Lock-up Agreement
Galen LP, Galen International, Management, Galen, Zubeen Shroff and L. John Wilkerson have agreed
with Perceptive Advisors LLC and Highbridge Capital Management, LLC, affiliates of the lead investors in the Private Placement, that, for a period beginning on October 24, 2017 and ending on January 28, 2018, that they will not, without
the prior written consent of each of Perceptive Advisors LLC and Highbridge Capital Management, LLC, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to
dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position with respect to, any Ordinary Shares or any other securities of the Issuer that are substantially similar to
Ordinary Shares, or any other securities of the Issuer that are substantially similar to Ordinary Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to acquire, the foregoing,
(ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of Ordinary Shares or any other securities of the Issuer that are substantially similar to Ordinary
Shares, or any securities convertible into or exchangeable or exercisable for, or any warrants or other rights to acquire, the foregoing, whether any such transaction is to be settled by delivery of Ordinary Shares or such other securities, in cash
or otherwise or (iii) publicly announce an intention to effect any transaction specified in clause (i) or (ii).
The foregoing descriptions of
the terms of the New Warrants, the Registration Rights Agreement and the Lock-up Agreement are intended as summaries only and are qualified in their entirety by reference to the form of New Warrant, the
Registration Rights Agreement and the Lock-up Agreement, which are filed as exhibits to this Schedule 13D and incorporated by reference herein.
