As
filed with the Securities and Exchange Commission on September 29, 2023
Registration
Statement No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
F-3
REGISTRATION
STATEMENT Under The Securities Act of 1933
TC
BIOPHARM (HOLDINGS) PLC
(Exact
name of Registrant as specified in its charter)
Scotland |
|
8731 |
|
Not
applicable |
(State
or other jurisdiction of
incorporation
or organization) |
|
(Primary
Standard Industrial
Classification
Code Number) |
|
(IRS
Employer
Identification
Number) |
Maxim
1, 2 Parklands Way
Holytown,
Motherwell, ML1 4WR
Scotland,
United Kingdom
+44
(0) 141 433 7557
(Address,
including zip code, and telephone number, including area code, of registrant’s principal executive offices)
TC
BioPharm (North America) Inc.
c/o
Business Filings, Inc.
108
West 13th Street
Wilmington,
Delaware 19801
(800)
981-7183
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copy
of all communications including communications sent to agent for service, should be sent to:
Richard
A. Friedman, Esq.
Stephen
Cohen, Esq.
Sheppard,
Mullin, Richter & Hampton LLP
30
Rockefeller Plaza
New
York, NY 10112
Telephone:
(212) 653-8700
Facsimile:
(212) 653-8701 |
Approximate
date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If
only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the
following box. ☐
If
any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. ☒
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement number of the earlier effective registration statement for the same
offering. ☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If
this Form is a registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box ☐
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box ☐
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging
growth company ☒
If
an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant
has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant
to Section 7(a)(2)(B) of the Securities Act. ☐
The
Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective
in accordance with Section 8(a) of the Securities Act, or until this registration statement shall become effective on such date as the
Securities and Exchange Commission, acting pursuant to said Section 8(a) may determine.
The
information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration
statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does
it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.
PRELIMINARY
PROSPECTUS |
|
SUBJECT
TO COMPLETION |
|
DATED
SEPTEMBER 29, 2023 |
UP
TO 12,942,813
AMERICAN
DEPOSITARY SHARES
REPRESENTING
12,942,813 ORDINARY SHARES
TC
BIOPHARM (HOLDINGS) PLC
This
prospectus relates to the offer and resale of series D purchase warrants (the “Series D Warrants”) to purchase up
to 12,475,000 American Depositary Shares (the “ADSs”), which were issued by us pursuant to a letter agreement dated August
30, 2023 (the “Letter Agreement”) and placement agent warrants (the “Placement Agent Warrants” and together
with the Series D Warrants, the “Warrants”) to purchase up to 467,813 ADSs, which were issued by us pursuant to an engagement
agreement, dated November 1, 2022, as amended (the “Engagement Agreement”). Each ADS represents one of our ordinary shares,
par value £0.0001 per share. The holders of the ADSs are each referred to herein as a “Selling Shareholder”.
The
exercise price of the Series D Warrants is £0.35 per ADS. The exercise price of the Placement Agent Warrants is £0.4375
per ADS. See “Use of Proceeds”. The Selling Shareholders, or its respective transferees, pledgees, donees
or other successors-in-interest, may sell the ADSs through public or private transactions at prevailing market prices, at prices related
to prevailing market prices or at privately negotiated prices. The Selling Shareholders may sell any, all or none of the securities
offered by this prospectus, and we do not know when or in what amount the Selling Shareholders may sell their ADSs hereunder following
the effective date of this registration statement. We provide more information about how the Selling Shareholders may sell
its ADSs in the section titled “Plan of Distribution” on page 27.
We
are registering the ADSs on behalf of the Selling Shareholders to be offered and sold by them from time to time. While we will
not receive any proceeds from the sale of the ADSs by any selling shareholder, we will receive proceeds from the exercise of any Warrants
for cash. We have agreed to bear all of the expenses incurred in connection with the registration of the ADSs. The Selling Shareholders
will pay or assume discounts, commissions, fees of underwriters, selling brokers or dealer managers and similar expenses, if any,
incurred for the sale of the ADSs.
Our
ADSs are listed on the Nasdaq Capital Market, or Nasdaq, under the symbol “TCBP”. On September 27, 2023, the closing
trading price for our ADSs, as reported on Nasdaq, was US$0.385 per ADS.
We
are a “foreign private issuer,” and an “emerging growth company” each as defined under the federal securities
laws, and, as such, we are subject to reduced public company reporting requirements. See the section entitled “Prospectus Summary—Implications
of Being an Emerging Growth Company and a Foreign Private Issuer” for additional information.
Investing
in our securities involves a high degree of risk. Before buying any ADSs, you should carefully read the discussion of material risks
of investing in the ADSs and the company. See “Risk Factor Summary” beginning on page 12 for a discussion of information
that should be considered in connection with an investment in our securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
Prospectus
dated ___________, 2023
TABLE
OF CONTENTS
We
have not authorized anyone to provide information different from that contained in this prospectus, any amendment or supplement to this
prospectus or in any free writing prospectus prepared by us or on our behalf. We take no responsibility for, and can provide no assurance
as to the reliability of, any information other than the information in this prospectus, any amendment or supplement to this prospectus,
and any free writing prospectus prepared by us or on our behalf. Neither the delivery of this prospectus nor the sale of the ADSs means
that information contained in this prospectus is correct after the date of this prospectus. This prospectus is not an offer to sell or
the solicitation of an offer to buy the ADSs in any circumstances under which such offer or solicitation is unlawful.
You
should rely only on the information contained in this prospectus and any free writing prospectus prepared by or on behalf of us or to
which we have referred you. We have not authorized anyone to provide you with information that is different. We are offering to sell
the ADSs, and seeking offers to buy the ADSs, only in jurisdictions where offers and sales are permitted. The information in this prospectus
is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale of the ADSs.
For
investors outside of the United States, we have not done anything that would permit this offering or possession or distribution of this
prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons outside the United
States who come into possession of this prospectus must inform themselves about and observe any restrictions relating to this offering
and the distribution of this prospectus outside the United States.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement on Form F-3 that we filed with the United States Securities and Exchange Commission (the
“SEC”) using a “shelf” registration process. Under this shelf registration process, the selling securityholders
may, from time to time, offer and sell any combination of the securities described in this prospectus in one or more offerings.
This
prospectus provides you with a general description of the securities we and the Selling Shareholders may offer. This prospectus and any
accompanying prospectus supplement do not contain all of the information included in the registration statement. We have omitted parts
of the registration statement in accordance with the rules and regulations of the SEC. Statements contained in this prospectus and any
accompanying prospectus supplement about the provisions or contents of any agreement or other documents are not necessarily complete.
If the SEC rules and regulations require that an agreement or other document be filed as an exhibit to the registration statement, please
see that agreement or document for a complete description of these matters. This prospectus may be supplemented by a prospectus supplement
that may add, update, or change information contained or incorporated by reference in this prospectus. You should read both this prospectus
and any prospectus supplement or other offering materials together with additional information described under the headings “Where
You Can Find Additional Information” and “Incorporation of Documents by Reference.”
Each
time we sell any securities offered by us under this shelf registration, we will provide a prospectus supplement that will contain certain
specific information about the terms of that offering, including a description of any risks related to the offering. A prospectus supplement
may also add, update, or change information contained in this prospectus (including documents incorporated herein by reference). Notwithstanding
the foregoing, the Selling Shareholders may sell the ADSs offered by them registered hereby without being accompanied by a prospectus
supplement. If there is any inconsistency between the information in this prospectus and the applicable prospectus supplement, you should
rely on the information in the prospectus supplement. The registration statement we filed with the SEC includes exhibits that provide
more details on the matters discussed in this prospectus. You should read this prospectus and the related exhibits filed with the SEC
and the accompanying prospectus supplement together with additional information described under the headings “Incorporation of
Documents by Reference” before investing in any of the securities offered.
You
should rely only on the information provided or incorporated by reference in this prospectus or in the prospectus supplement. Neither
we nor the Selling Shareholders have authorized anyone to provide you with additional or different information. Neither we nor the Selling
Shareholders take responsibility for, nor can we provide assurance as to the reliability of, any other information that others may provide.
Neither we nor the Selling Shareholders are making an offer to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should assume that the information in this prospectus, any applicable prospectus supplement or any related free writing
prospectus is accurate only as of the date on the front of the document and that any information incorporated by reference is accurate
only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable
prospectus supplement or any related free writing prospectus, or any sale of a security, unless we indicate otherwise. Our business,
financial condition, results of operations and/or prospects may have changed since those dates.
As
permitted by SEC rules and regulations, the registration statement of which this prospectus forms a part includes additional information
not contained in this prospectus. You may read the registration statement and the other reports we file with the SEC at its website or
at its offices described below under “Where You Can Find Additional Information.”
Unless
the context requires otherwise, in this prospectus TC BioPharm (Holdings) plc (formerly TC BioPharm (Holdings) Limited, which was re-registered
as a public limited company on January 10, 2022) and its subsidiaries (“Subsidiar(y/ies)”), and TC BioPharm Limited (our
principal trading subsidiary) shall collectively be referred to as “TCB,” “the Company,” “the Group”,
“we,” “us,” and “our” unless otherwise noted.
On
December 17, 2021, prior to our initial public offering, the Company undertook a corporate reorganization pursuant to which TC BioPharm
(Holdings) plc became the group holding company. The Company in turn effected a forward split of its ordinary shares on a 10 for 1 basis.
On November 18, 2022 the Company undertook a reverse share split such that fifty issued ordinary share were exchanged for one new ordinary
share. As a result of the share splits, all references included in this document to units of ordinary shares or per share amounts are
reflective of the forward and reverse share splits for all periods presented. In addition, the exercise prices and the numbers of ordinary
shares issuable upon the exercise of any outstanding options to purchase ordinary shares were proportionally adjusted pursuant to the
respective anti-dilution terms of the share-based payment plans.
The
consolidated financial statement data as at December 31, 2022 and 2021, and for the years ended December 31, 2022, 2021 and 2020 have
been derived from our consolidated financial statements, which have been prepared in accordance with International Financial Reporting
Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB. The December 31, 2022 and 2021 consolidated financial
statements were audited in accordance with the standards of the Public Company Accounting Oversight Board (United States).
Our
financial information is presented in pounds sterling. The figures as at December 31, 2022 and for the year ended December 31, 2022 have
been translated from pounds sterling into U.S. dollars at the rate of £1.00 to $1.2077, which was the noon buying rate of the Federal
Reserve Bank of New York on December 30, 2022. Such U.S. dollar amounts are not necessarily indicative of the amounts of U.S. dollars
that could actually have been purchased upon exchange of pounds sterling at the dates indicated or any other date. All references in
this Prospectus to “$” mean U.S. dollars and all references to “£” and “GBP” mean pounds sterling.
We have made rounding adjustments to reach some of the figures included in this prospectus. As a result, numerical figures shown as totals
in some tables may not be an arithmetic aggregation of the figures that precede them.
This
prospectus includes statistical, market and industry data and forecasts which we obtained from publicly available information and independent
industry publications and reports that we believe to be reliable sources. These publicly available industry publications and reports
generally state that they obtain their information from sources that they believe to be reliable, but they do not guarantee the accuracy
or completeness of the information. Although we believe that these sources are reliable, we have not independently verified the information
contained in such publications. In addition, assumptions and estimates of our and our industry’s future performance are necessarily
subject to a high degree of uncertainty and risk due to a variety of factors, including those described in the “Risk Factor Summary”.
These and other factors could cause our future performance to differ materially from our assumptions and estimates.
Some
of our trademarks and trade names are used in this prospectus, which are intellectual property owned by the Company. This prospectus
also includes trademarks, trade names, and service marks that are the property of other organizations. Solely for convenience, our trademarks
and trade names referred to in this prospectus appear without the TM symbol, but those references are not intended to indicate,
in any way, that we will not assert, to the fullest extent under applicable law, our rights, or the right of the applicable licensor
to these trademarks and trade names.
No
offer of these securities will be made in any jurisdiction where the offer is not permitted.
ENFORCEABILITY
OF CIVIL LIABILITIES
TCB
is a corporation organized under the laws of Scotland. Substantially all of TCB’s assets and the majority of its directors and
executive officers are located and reside, respectively, outside the United States. Because of the location of TCB’s assets and
board members, it may not be possible for investors to serve process within the United States upon TCB or those persons with respect
to matters arising under the United States federal securities laws or to enforce against TCB or persons located outside the United States
judgments of United States courts asserted under the civil liability provisions of the United States federal securities laws.
TCB
understands that there is doubt as to the enforceability in Scotland and the United Kingdom, in original actions or in actions for enforcement
of judgments of United States courts, of civil liabilities predicated solely upon the federal securities laws of the United States insofar
as they are fines or penalties. In addition, awards of punitive damages in actions brought in the United States or elsewhere may be unenforceable
in Scotland and the United Kingdom by reason of being a penalty.
TC
BioPharm (North America) Inc., a Delaware corporation, with a registered office at Business Filings, Inc. 108 West 13th Street, Wilmington,
Delaware 19801, has been appointed agent to receive service of process in any action against TC BioPharm (Holdings) plc in any state
or federal court in the State of New York.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
TCB
discusses in this prospectus its business strategy, market opportunity, capital requirements, product introductions and development plans
and the adequacy of the Company’s funding. Other statements contained in this prospectus, which are not historical facts, are also
forward-looking statements. TCB has tried, wherever possible, to identify forward-looking statements by terminology such as “may,”
“will,” “could,” “should,” “expects,” “anticipates,” “intends,”
“plans,” “believes,” “seeks,” “estimates” and other comparable terminology.
TCB
cautions investors that any forward-looking statements presented in this prospectus, or that TCB may make orally or in writing from time
to time, are based on the beliefs of, assumptions made by, and information currently available to, TCB. These statements are based on
assumptions, and the actual outcome will be affected by known and unknown risks, trends, uncertainties and factors that are beyond its
control or ability to predict. Although TCB believes that its assumptions are reasonable, they are not a guarantee of future performance,
and some will inevitably prove to be incorrect. As a result, its actual future results can be expected to differ from its expectations,
and those differences may be material. Accordingly, investors should use caution in relying on forward-looking statements, which are
based only on known results and trends at the time they are made, to anticipate future results or trends. Certain risks are discussed
in this prospectus and also from time to time in TCB’s other filings with the Securities and Exchange Commission (“SEC”).
This
prospectus and all subsequent written and oral forward-looking statements attributable to the Company or any person acting on its behalf
are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. The Company does not
undertake any obligation to release publicly any revisions to its forward-looking statements to reflect events or circumstances after
the date of this prospectus.
In
particular, you should consider the risks provided under “Risk factor summary” in this prospectus and in the Form 20-F for
the fiscal year ended December 31, 2022 as filed with the Securities and Exchange Commission (the “2022 Form 20-F”) incorporated
by reference in this prospectus.
PROSPECTUS
SUMMARY
The
following summary highlights selected information contained elsewhere in this prospectus. This summary does not contain all the information
you should consider before investing in our securities. You should read this entire prospectus carefully, including the information incorporated
by reference in this prospectus and any free writing prospectus prepared by us or on our behalf, including in particular the section
entitled “Risk Factor Summary” in this prospectus, “Item 3. Key Information”, Item 4, “Information on the
Company”; Item 5, “Operating and Financial review and Prospects”; Item 6,”Directors, Senior Management and Employees”;
Item 7, Major Shareholders and Related Party Transactions”; Item 8, “Financial Information” in our 2022 Form 20-F and
incorporated by reference in this prospectus, the other sections of the documents incorporated by reference in this prospectus and the
financial statements and the related notes incorporated by reference in this prospectus, before making an investment in our ADSs.
The
Company
Corporate
Overview
TCB
based in Scotland, is a clinical-stage biopharmaceutical company focused on developing novel immunotherapy products based on our proprietary
allogeneic gamma delta T (GD-T) cell platform. Harnessing the innate ability of GD-Ts has enabled us to develop a range of clinical-stage
cell therapies designed to combat cancer and viral infection.
In-house
clinical studies have demonstrated that our unmodified allogeneic GD-T products are (i) well tolerated and (ii) show preliminary evidence
of disease modification in patients with the late-stage blood cancer, known as acute myeloid leukemia (AML). Based on clinical data generated
by us believe that unmodified GD-Ts have the potential to treat all blood cancers.
TCB
now is embarking on phase 2b-into-pivotal (phase 3) clinical studies with a view to launching its first oncology product for the treatment
of AML. Clinical results generated thus far have enabled us to obtain FDA orphan drug status for treatment of AML.
In
addition to unmodified allogenic GD-Ts for treatment of blood cancers, we are also developing an innovative range of genetically-modified
CAR-T products for treatment of solid cancers. We believe that solid cancers are more difficult to treat than blood cancers and may require
the addition of a CAR “chimeric antigen receptor” (i) to help therapeutic cells to “navigate” into diseased cancerous
tissue and (ii) to retain therapeutic cells in-situ at the lesion for maximal efficacy (increased persistence).
In
order to manufacture our portfolio of allogeneic products, TCB selects the highest quality GD-T cells from healthy donors, activate the
cells and grow them in large numbers at our in-house GMP-compliant manufacturing facility before administration to a patient in order
to target and then destroy malignant or virally-infected tissues. TCB believes that we have introduced a step-change to our manufacturing
platform by implementing a freeze-thaw process that will allow product to be shipped from cleanroom to patient without any shelf-life
issue. Resulting products, TCB believes, will be more cost-effective and straightforward to ship form cleanroom to clinic.
At
this stage, TCB does not have any approved products. Accordingly, TCB has not generated any revenue from the sale of products, and TCB
does not expect to generate any such revenue unless and until it obtains regulatory approvals for, and commercialize any of, our product
candidates. In the future, TCB will seek to generate revenue primarily from product sales and, potentially, regional or global collaborations
with strategic partners, which may produce license fee income.
See
“Business - Overview” in our 2022 Form 20-F incorporated by reference in this prospectus.
Patent
Portfolio and Intellectual Property
We
believe TCB has a strong portfolio of patents and licenses covering the manufacture and commercialization of GD-T cell products and their
modification via CAR-T. We own fourteen granted patents and forty-three patent applications in four patent families and have an exclusive
license to an additional one family of twelve granted patents and ten patent applications. We protect our proprietary position, generally,
by filing an initial priority filing at the United Kingdom Intellectual Property Office, or UKIPO, followed by patent applications under
the Patent Co-operation Treaty claiming priority from the initial application(s) and then progressing to national applications in, for
example, the United States, Europe, Japan, China, Australia, New Zealand, South Korea, Israel and Canada.
As
a platform technology, we believe the co-stimulatory CAR-T GD-T cell system has a wealth of potential options to build added functionality.
We plan to continue to innovate and partner in the field to augment our drug products and introduce next generation attributes. We will
also continue to innovate our manufacturing and supply chains to efficiently scale our processes and simplify the interface with patients
and healthcare professionals, whilst continually seeking to reduce manufacturing costs to improve patient access.
We
intend to continue building on our technology platform, comprised of intellectual property, proprietary methods and know-how in the field
of GD-T cells. These assets form the foundation for our ability, not only to strengthen our product pipeline, but also to successfully
defend and expand our position as a leader in the field of GD-T based immuno-oncology.
See
“Business - Intellectual Property” in our 2022 Form 20-F incorporated by reference in this prospectus.
Our
Product Strategy
Our
strategic objective is to build a global therapeutic business with an extensive portfolio based upon unmodified and modified gamma delta
T cells (GD-T) with the potential to significantly improve the outcomes of patients with cancer and infectious disease.
Our
strategy is to take a step-wise approach to clinical development and commercialization. After our inception, we made clinical transitions
from autologous GD-Ts to allogeneic GD-Ts to CAR-modified allogeneic GD-Ts. Our commercialization strategy is to introduce clinical studies
for products firstly in blood cancers (AML initially) and then solid tumor indications. Complementarily, since GD-T cells are dysfunctional
in patients with severe viral diseases, TCB plans to develop its unmodified GD-T product to treat infectious diseases and believes that
this approach may be particularly relevant in relation to the treatment of viral pandemics.
Since
2015, TCB has built and maintained cell therapy medicinal product manufacturing facilities for Investigational Medicinal Products MIA
(abbreviated IMP), operated under license from the United Kingdom Medicines and Healthcare Products Regulatory Agency (abbreviated MHRA).
In April 2016, the MHRA granted a ‘Specials’ license to TCB, which allows it to treat patients under supervision of a qualified
doctor outside a clinical trial, and approved the company’s facility for ongoing Good Manufacturing Process (“GMP”)
compliance, which permits the manufacture and release of Advanced Therapy Medicinal Products (abbreviated ATMPs) for use in clinical
trials. TCB maintains a rigorous Quality Management System, which is based on the principles of the current GMP of the European and UK
law and regulation and EudraLex Volume 4, as revised. The Company complies with the two directives laying down principles and guidelines
of GMP for medicinal products adopted by the Commission. Directive 2003/94/EC applies to medicinal products for human use and Directive
91/412/EEC for veterinary use. Detailed guidelines in accordance with those principles are published in the Guide to Good Manufacturing
Practice which will be used in assessing applications for manufacturing authorizations and as a basis for inspection of manufacturers
of medicinal products.
Regulatory
approval of all aspects of medicinal therapy development, testing, manufacture and commercialization always is of concern. In the case
of treatment for AML, TCB has developed the novel approach of antibody-based immunotherapy and adoptive cell therapy with the aim to
improve anti-leukemia T cell function. Therefore, TCB is able to take advantage of orphan medicine regulation provided by the European
Medicines Agency (abbreviated EMA) and the United States Federal Drug Administration (abbreviated FDA), which are designed to encourage
medicine development for small numbers of patients where there is little commercial incentive under normal market conditions.
Part
of our strategy is to collaborate with appropriate partners from time to time.
See
“Business - Business Strategy” in our 2022 Form 20-F incorporated by reference in this prospectus.
TCB’s
Strengths
TCB
believes it has certain identified strengths. These include:
|
● |
Clinical trials that have
provided strong evidence of safety and some preliminary indications of clinical benefit; |
|
● |
A proprietary co-stimulatory
CAR-T technology platform which we believe allows solid cancers to be treated without toxic side-effects; |
|
● |
Identification of a large
pool of cancer targets for which we believe we can develop therapeutic candidates; |
|
● |
Retention of key business
elements, especially in-house ability to manufacture cell-based product and conduct our own clinical research; |
|
● |
Robust, and growing intellectual
property portfolio protecting our products and proprietary platform; |
|
● |
Our policy is to develop
strategic collaborations with leading, international companies to work together with us to develop certain GD-T CAR-T products into
clinic. We believe that existing and future collaborations will provide us with experience in scale-up and automation, and post-authorization
sales and marketing; |
|
● |
A highly knowledgeable
and experienced management team with extensive industry experience and expertise in the United States and in Europe; and |
|
● |
Ability to treat patients
under the ‘Specials’ regulatory framework in Europe. |
Corporate
Information
Our
principal executive offices are located in Scotland, United Kingdom, with a mailing address of Maxim 1, 2 Parklands Way, Holytown, Motherwell,
ML1 4WR, United Kingdom and our telephone number at that location is +44 (0) 141 433 7557. Our website address is https://www.tcbiopharm.com.
The information contained on, or that can be accessed through, our website is not part of this prospectus. We have included our website
address in this prospectus solely as an inactive textual reference.
Implications
of Being an “Emerging Growth Company”
We
are an “emerging growth company,” as defined in Section 2(a) of the Securities Act of 1933, as amended, or the Securities
Act. As such, we are eligible to, and intend to, take advantage of certain exemptions from various reporting requirements applicable
to other public companies that are not “emerging growth companies” such as not being required to comply with the auditor
attestation requirements in the assessment of our internal control over financial reporting of Section 404 of the Sarbanes-Oxley Act
of 2002, or the Sarbanes-Oxley Act. We could remain an “emerging growth company” for up to five years, or until the earliest
of (a) the last day of the first fiscal year in which our annual gross revenue exceeds $1.235 billion, (b) the date that we become a
“large accelerated filer” as defined in Rule 12b-2 under the Securities Exchange Act of 1934, as amended, or the Exchange
Act, which would occur if the market value of all our ordinary shares, including those represented by the ADSs, that are held by non-affiliates
exceeds $700 million as of the last business day of our most recently completed second fiscal quarter, or (c) the date on which we have
issued more than $1 billion in nonconvertible debt during the preceding three-year period.
Implications
of being a “Foreign Private Issuer”
We
are subject to the information reporting requirements of the Securities and Exchange Act of 1934, as amended, the Exchange Act, that
are applicable to “foreign private issuers,” and under those requirements we file reports with the SEC. As a foreign private
issuer, we are not subject to the same requirements of the SEC applicable to U.S. domestic issuers. Under the Exchange Act, we are subject
to reporting obligations that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting companies.
For example, we are not required to issue quarterly reports, proxy statements that comply with the requirements applicable to U.S. domestic
reporting companies, or individual executive compensation information that is as detailed as that required of U.S. domestic reporting
companies. We also have four months after the end of each fiscal year to file our annual report with the SEC and are not required to
file current reports as frequently or promptly as U.S. domestic reporting companies. Our officers, directors and principal shareholders
are exempt from the requirements to report transactions in our equity securities and from the short-swing profit liability provisions
contained in Section 16 of the Exchange Act. As a foreign private issuer, we are not subject to the requirements of Regulation FD (Fair
Disclosure) promulgated under the Exchange Act. In addition, as a foreign private issuer, we are permitted to follow certain home country
corporate governance practices instead of those otherwise required under the Nasdaq Stock Market rules for domestic U.S. issuers and
are not required to be compliant with all Nasdaq Stock Market rules as of the date of our initial listing on Nasdaq as would domestic
U.S. issuers These exemptions and leniencies will reduce the frequency and scope of information and protections available to you in comparison
to those applicable to a U.S. domestic reporting company. We intend to take advantage of the exemptions available to us as a foreign
private issuer during and after the period we qualify as an “emerging growth company.”
Recent
Developments
March 2023 Securities Purchase Agreement
On
March 27, 2023, we entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited investors
(the “Investors”), pursuant to which we agreed to issue and sell an aggregate of 215,000 ADSs, pre-funded warrants to purchase
up to 3,222,500 ADS (the “March 2023 Pre-Funded Warrants”), and series C purchase warrants to purchase up to 3,437,500 ADSs
(the “Ordinary Warrants”). The purchase price for each ADS and associated Ordinary Warrants was $1.60 and the purchase price
per each March 2023 Pre-Funded Warrant and associated Ordinary Warrants was $1.599. The Ordinary Warrants were immediately exercisable,
expire five (5) years from the date of issuance and have an exercise price of $1.75 per ADS. The March 2023 Pre-Funded Warrants may be
exercised at any time until all of the March 2023 Pre-Funded Warrants are exercised in full at an exercise price of $0.001 per ADS. The
total net proceeds from this offering were approximately $4.6 million, after deducting estimated offering expenses of approximately $0.9
million.
In
connection with the March 2023 offering, we agreed that certain existing warrants to purchase up to an aggregate of 2,800,000 ADSs of
the Company that were previously issued on November 30, 2022, at an exercise price of $5.00 per ADS and expiration dates of May 30, 2025
and May 30, 2028, were amended effective upon the closing of the March 2023 offering so that the amended warrants will have a reduced
exercise price of $1.75 per ADS.
In
the period from January 1, 2023 to September 28, 2023, the holders of prefunded warrants, exercised prefunded warrants to purchase
4,537,500 ADSs (including 1,315,000 prefunded warrants in issue at January 1, 2023).
April
2023 Modification of Loan Note
On
April 3, 2023, the Company agreed with the loan note holder to extend the Redemption Date (as defined in the Loan Note) to January 15,
2024 and amend the Conversion Price (as defined in the Loan Note) of the outstanding loan notes to be the lesser of $1.00 or the lowest
closing price of the ADSs during the ten (10) day period prior to the date the Noteholder delivers a notice of conversion to the Company,
not to be lower than $0.20. In other respects the terms of the Loan Note remain unaltered. In addition, in consideration of amending
the Loan Note, the Company agreed to issue a 5-year warrant to the loan note holder to subscribe for 200,000 Ordinary Shares in the share
capital of the Company at an exercise price of $5.00 per Ordinary Share.
In
the period from April 3, 2023 to August 21, 2023, the holders of Loan Notes, converted notes with a value of $813,302 into 1,590,130
ADSs. As at the date of this prospectus, there are no
convertible loan notes in issue.
June 2023 Nasdaq Compliance
Letter
On
June 22, 2023, we received a deficiency letter from the Staff notifying that we were not in compliance with the Bid Price Rule. We have
been provided an initial period of 180 calendar days, or until December 19, 2023, to regain compliance with the applicable listing requirement.
If the Company does not regain compliance with the Bid Price Rule by such date, the Company may be afforded a second 180 calendar day
period to regain compliance. The Company continues to execute its business plan and is looking into various options available to regain
compliance with Nasdaq’s continued listing standards and maintain its continued listing on the Nasdaq Capital Market. Further details
are described within the “Risk Factor Summary”.
July
2023 Warrant Amendment
On
July 10, 2023, we entered into a warrant amendment with an existing investor pursuant to which the Company and the investor agreed that
certain existing warrants to purchase 2,800,000 ADSs of the Company that were previously issued on November 30, 2022 (the “November
2022 Warrants”) and certain existing warrants to purchase 3,437,500 ADSs of the Company that were previously issued on March 30,
2023 (the “March 2023 Warrants,” and together with the November 2022 Warrants, the “Existing Warrants”) would
be amended as follows: (i) amend the current exercise price on all Existing Warrants so that it is now equal to £0.35 ($0.42
translated for illustration to U.S. dollars at the rate of £1.00 to $1.2077), (ii) extend the termination date on 50% of the
November 2022 Warrants and all of the March 2023 Warrants until May 30, 2028 and (iii) amend to the definition of “Black Scholes
Value” included in Section 3(e) of the Existing Warrants.
July
2023 Nasdaq Compliance Letter
In
follow up to a written notification received from the listing qualifications staff of The Nasdaq Stock Market, LLC (“Nasdaq”)
on January 12, 2023 indicating that the Company had not regained compliance with the minimum Market Value of Listed Securities (“MVLS”)
of $35,000,000 required for continued listing on The Nasdaq Capital Market, as set forth in Nasdaq Listing Rule 5550(b)(2) (the “MVLS
Requirement”), the Company announced on July 10, 2023 that the Company believes that, as at July 10, 2023, it has stockholders’
equity well above the $2.5m minimum stockholders’ equity requirement.
On
July 27, 2023, the Company received a letter, dated July 26, 2023 (the “Letter”) from Nasdaq notifying the Company that the
Panel has concluded that the Company has regained compliance with Nasdaq’s continued listing requirements. The Letter stated that,
pursuant to Listing Rule 5815(d)(4)(A), the Company will be subject to a Panel Monitor for a period of one year from the date of the
Letter. If, within that one-year monitoring period, the Listing Qualifications staff (the “Staff”) finds the Company again
out of compliance with any continued listing requirement, notwithstanding Rule 5810(c)(2), the Company will not be permitted to provide
the Staff with a plan of compliance with respect to any deficiency and the Staff will not be permitted to grant additional time for the
Company to regain compliance with respect to any deficiency, nor will the Company be afforded an applicable cure or compliance period.
Instead, the Staff will issue a Delist Determination Letter and the Company will have an opportunity to request a new hearing with the
initial Panel or a newly convened Hearings Panel if the initial Panel is unavailable.
August
2023 Warrant Inducement
On
August 30, 2023, we entered into an inducement offer letter agreement (the “Letter Agreement”) with certain holders
(the “Holders”) of existing Series A, B and C warrants (the “Existing Warrants”) to purchase ordinary
shares represented by american depositary shares (the “ADSs”) of the Company. The Existing Warrants were issued on
November 30, 2022 and March 30, 2023, as amended on July 10, 2023, and have an exercise price of £0.35 per ADS ($0.42 per ADS
translated for illustration to U.S. dollars at the rate of £1.00 to $1.2077).
Pursuant
to the Inducement Letter, the Holders agreed to exercise for cash their Existing Warrants to purchase an aggregate of 6,237,500 ADSs
of the Company (the “Warrant Exercise”) in consideration for the Company’s agreement to issue to the Holder
new Series D warrants to purchase up to 12,475,000 of the Company’s ordinary shares represented by ADSs. The Series
D Warrants are immediately exercisable, expire five and one half (5.5) years from the date of issuance and have an exercise price
of £0.35 per ADS ($0.42 per ADS translated for illustration to U.S. dollars at the rate of £1.00 to $1.2077). The Company
received aggregate gross proceeds of approximately £2.2 million (approximately $2.8m) from the exercise of the Existing Warrants
by the Holders, before deducting placement agent fees payable by the Company. The ADSs are issuable in line with the terms of the
warrant Inducement Letter (Exhibit 10.6). In particular, in the event that any Warrant Exercise would otherwise cause the Holder to exceed
the beneficial ownership limitations (“Beneficial Ownership Limitation”) set forth in Section 2(e) within Exhibit 10.6 of
the Existing Warrants (or, if applicable and at the Holder’s election, 9.99%), the Company shall only issue such number of Warrant
ADSs to the Holder that would not cause the Holder to exceed the maximum number of Ordinary Shares and/or ADSs permitted thereunder,
as directed by the Holder, with the balance to be held in abeyance until notice from the Holder that the balance (or portion thereof)
may be issued in compliance with such limitations, which abeyance shall be evidenced through the Existing Warrants which shall be deemed
prepaid thereafter (including the payment in full of the exercise price), and exercised pursuant to a Notice of Exercise in the Existing
Warrants (provided that no additional exercise price shall be due and payable).
The
Company engaged H.C. Wainwright & Co., LLC (the “Placement Agent”) to act as its exclusive placement agent in
connection with the transactions summarized above and has agreed to pay the Placement Agent a cash fee equal to 7.5% of the gross proceeds
received from the Holders’ exercise of their Existing Warrants and a management fee of 1% of the gross proceeds received from the
Holders’ exercise of their Existing Warrants. The Company has also agreed to reimburse the Placement Agent for its expenses in
connection with the exercise of the Existing Warrants and the issuance of the New Warrants, up to $50,000 for fees and expenses of legal
counsel and other out-of-pocket expenses, and agreed to pay the Placement Agent for non-accountable expenses in the amount of $35,000
and clearing fee of $15,950. Upon any exercise for cash of any New Warrants, the Company has agreed to pay the Placement
Agent a cash fee of 7.5% of the aggregate gross exercise price paid in cash with respect the exercise of the New Warrants. In addition,
the Company granted warrants (“Placement Agent Warrants”) to the Placement Agent, or its designees, to purchase up
to an aggregate of 467,813 ordinary shares represented by ADSs, which Placement Agent Warrants shall be in the form of the Series
D Warrants, except that the Placement Agent Warrants shall have an exercise price of £0.4375 ($0.53 per ADS translated for
illustration to U.S. dollars at the rate of £1.00 to $1.2077. The registration statement of which this prospectus is a part is
being filed to register the ADSs underlying the Placement Agent Warrants.
The
closing of the transactions contemplated pursuant to the Letter Agreement occurred on September 5, 2023 (the “Closing Date”).
The Company expects to use the net proceeds of these transactions to support the submission of the Company’s Investigational New
Drug (IND) Application in respect of its upcoming clinical trial and for continuing operating expenses and working capital.
The
Company also agreed to file a registration statement on Form F-3 (or other appropriate form if the Company is not then Form F-3 eligible)
covering the resale of the New Warrant ADSs issued or issuable upon the exercise of the New Warrants (the “Resale Registration
Statement”), within 30 days of the Closing Date, and to have such Resale Registration Statement declared effective by the SEC
within 90 days following the Closing Date. The registration statement of which this prospectus is a part is being filed to fulfill our
obligations under the Letter Agreement.
In
the Inducement Letter, the Company agreed not to issue any ADSs, ordinary shares or ordinary share equivalents or to file any other registration
statement with the SEC (in each case, subject to certain exceptions) until 45 days after the Closing Date. The Company also agreed not
to effect or agree to effect any variable rate transaction (as defined in the Inducement Letter) until one (1) year after the Closing
Date (subject to an exception).
The
Offering
This
prospectus relates to the resale by the selling shareholders identified in this prospectus of up to an aggregate of 12,475,000
ADSs (representing 12,475,000 ordinary shares) deliverable upon exercise of the Series D Warrants and 467,813 ADSs (representing
467,813 ordinary shares) deliverable upon exercise of the Placement Agent Warrants. The selling shareholders may sell its ADSs from
time to time at prevailing market prices. We will not receive any proceeds from the sale of the ADSs by the selling shareholders.
However, we will receive cash proceeds equal to the total exercise price of any Warrants that are exercised for cash.
Securities
offered by Selling Shareholders |
|
Warrants
to purchase up to 12,942,813 ADSs. See
“Description of Securities.” |
|
|
|
ADSs |
|
Each
ADS represents one ordinary share. As a holder of ADSs, we will not treat you as one of our shareholders. The depositary, through
its custodian, will be the holder of the ordinary shares underlying the ADSs, and you will have the rights of a holder of ADSs or
beneficial owner (as applicable) as provided in the deposit agreement among us, the depositary and owners and holders of ADSs from
time to time. To better understand the terms of the ADSs you should read Item 10B (“Memorandum and Articles of Association”)
in our 2022 Form 20-F incorporated by reference in this prospectus. We also encourage you to read the deposit agreement, the form
of which is filed as an exhibit to the registration statement of which this prospectus forms a part. |
|
|
|
Warrants
|
|
Each
Series D Warrant will be immediately exercisable, will expire five and one-half (5.5) years from the date of issuance, or
March 5, 2029 and have an exercise price of £0.35 per ADS ($0.42 per ADS translated for illustration to U.S. dollars at
the rate of £1.00 to $1.2077), subject to adjustment as set forth therein. Each Placement Agent Warrant will be immediately
exercisable, will expire five and one-half (5.5) years from the date of issuance, or March 5, 2029 and have an exercise price of
£0.4375 per ADS ($0.53 per ADS translated for illustration to U.S. dollars at the rate of £1.00 to $1.2077), subject
to adjustment as set forth therein. |
|
|
|
Ordinary shares outstanding
before this offering |
|
8,097,588
ordinary shares |
|
|
|
Warrants outstanding before this offering |
|
Warrants
to purchase 6,478,037 ADSs (including 5,432,500 ADSs issuable under the terms of the warrant
Inducement Letter (Exhibit 10.6) that are deemed to be prepaid and where the ADSs are being held in abeyance such that the Holder does not exceed
the beneficial ownership limitations, as described in more detail in the exhibit.
|
|
|
|
Ordinary shares to be outstanding after this offering,
including ordinary shares represented by ADSs |
|
8,097,588
ordinary shares (assuming no exercise of
the Warrants being registered hereunder). |
|
|
|
Use of proceeds |
|
We
will not receive any of the proceeds from the sale of ADSs by the Selling Shareholders pursuant to this prospectus. The Selling
Shareholders will pay any agent’s commissions and expenses they incur for brokerage, accounting, tax or legal services or any
other expenses that they incur in disposing of the ADSs. We will bear all other costs, fees and expenses incurred in effecting the
registration of the ADSs covered by this prospectus and any prospectus supplement. |
|
|
|
Risk factors |
|
You
should read the “Risk Factor Summary” section within this prospectus and in Item 3D (“Risk Factors”) in our
2022 Form 20-F included by reference in this prospectus, for a discussion of factors to consider carefully before deciding to invest
in our securities. |
|
|
|
Nasdaq Capital market
symbols |
|
ADSs
on the Nasdaq Capital Market under the symbol “TCBP.” |
The
number of our ordinary shares (including shares represented by ADSs) to be outstanding after this offering is based on 8,097,588 ordinary
shares outstanding as of September 29, 2023 and excludes:
|
● |
106,585 ordinary shares
issuable upon the exercise of options outstanding under our 2014 Share Option Scheme as of December 31, 2022, with a weighted-average
exercise price of £23.00 per share; |
|
|
|
|
● |
52,305 ordinary shares
issuable upon the exercise of options outstanding under our 2021 Share Option Scheme, as of December 31, 2022, with a weighted-average
exercise price of $212.00 per share; and |
|
|
|
|
● |
15,891 ordinary shares
issuable upon the exercise of options outstanding, at a future date based on the achievement of certain clinical and commercial milestones
with an exercise price of £215.00 per share. |
For
the description of the 2014 Share Option Scheme and 2021 Share Option Scheme see “Item 6.E Share Ownership” in the 2022 Form
20-F, which is incorporated by reference herein.
Unless
otherwise stated, all information in this prospectus assumes no exercise of the outstanding options described above into ordinary shares
or ADSs, treats all restricted shares issued with outstanding restrictions to be vested as issued and outstanding shares, no exercise
of the Placement Agent Warrants issued in this offering and no sale of pre-funded warrants in this offering.
Except
as otherwise indicated all references to our articles of association in this prospectus refer to our articles of association, as amended
as currently in force for TC BioPharm (Holdings) plc at the date of this prospectus.
Summary
Consolidated Financial Data
The
following table summarizes our consolidated financial data as at the dates and for the periods indicated. The consolidated financial
statement data as at December 31, 2022 and 2021, and for the years ended December 31, 2022 and 2021 audited in accordance with the standards
of the Public Company Accounting Oversight Board (United States) have been derived from our consolidated financial statements, which
have been prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting
Standards Board, or IASB.
Our
financial information is presented in pounds sterling. The figures as at December 31, 2022 and for the year ended December 31, 2022 have
been translated from pounds sterling into U.S. dollars at the rate of £1.00 to $1.2077, which was the noon buying rate of the Federal
Reserve Bank of New York on December 30, 2022. Such convenience translation should not be construed as a representation that the pound
sterling amounts have been or could be converted into U.S. dollars at this or at any other rate of exchange, or at all.
Our
historical results are not necessarily indicative of the results that may be expected in the future.
This
information should be read together with, and is qualified in its entirety by, our consolidated financial statements and the notes thereto.
You should read the following summary consolidated financial and other data in conjunction with “Item 5. Operating and Financial
Review and Prospects” and Item 8 (“Financial Information’), our consolidated financial statements and the notes thereto
and the other financial information included in our 2022 Form 20-F annual report and incorporated by reference in this prospectus.
| |
Year Ended December 31 | |
Consolidated Statement of Comprehensive Loss: | |
2022 | | |
2022 | | |
2021 | |
| |
$’000 | | |
£’000 | | |
£’000 | |
| |
| | |
| | |
| |
Revenue | |
| 4,644 | | |
| 3,845 | | |
| 1,979 | |
Research and development expenses | |
| (8,995 | ) | |
| (7,448 | ) | |
| (6,157 | ) |
Administrative expenses | |
| (8,471 | ) | |
| (7,014 | ) | |
| (2,059 | ) |
Administrative expenses – costs related to preparing for a listing | |
| (1,576 | ) | |
| (1,305 | ) | |
| (1,050 | ) |
Foreign exchange losses | |
| (146 | ) | |
| (121 | ) | |
| (83 | ) |
Other income | |
| - | | |
| - | | |
| 7 | |
Loss on modification of convertible loan | |
| (169 | ) | |
| (140 | ) | |
| | |
Change in fair value of convertible loan derivatives | |
| 8,589 | | |
| 7,112 | | |
| (4,182 | ) |
Change in fair value of warrant derivatives | |
| 15,440 | | |
| 12,785 | | |
| - | |
Change in fair value of other derivatives | |
| (4,628 | ) | |
| (3,832 | ) | |
| - | |
Finance income | |
| 2 | | |
| 2 | | |
| - | |
Finance costs | |
| (8,447 | ) | |
| (6,994 | ) | |
| (3,439 | ) |
Loss before tax | |
| (3,756 | ) | |
| (3,110 | ) | |
| (14,984 | ) |
Income tax credit | |
| 2,077 | | |
| 1,720 | | |
| 1,408 | |
Net loss for the year and Total comprehensive loss | |
| (1,679 | ) | |
| (1,390 | ) | |
| (13,576 | ) |
Per share data | |
| | | |
| | | |
| | |
Basic and diluted loss per share (1) | |
| (2.44 | ) | |
| (2.02 | ) | |
| (34.76 | ) |
Weighted average shares outstanding (1) | |
| 687,199 | | |
| 687,199 | | |
| 390,585 | |
| |
As at December 31 | |
| |
2022 | | |
2022 | | |
2021 | |
| |
$’000 | | |
£’000 | | |
£’000 | |
| |
| |
Consolidated Statement of Financial Position items: | |
| | | |
| | | |
| | |
Cash and cash equivalents | |
| 5,807 | | |
| 4,808 | | |
| 1,567 | |
Working capital (2) | |
| (2,072 | ) | |
| (1,716 | ) | |
| (16,724 | ) |
Total assets | |
| 13,226 | | |
| 10,951 | | |
| 8,024 | |
Total liabilities | |
| (13,256 | ) | |
| (10,976 | ) | |
| (24,583 | ) |
Share capital | |
| 20,525 | | |
| 16,995 | | |
| 195 | |
Other reserves | |
| 20,182 | | |
| 16,711 | | |
| 16,711 | |
Accumulated deficit | |
| (40,738 | ) | |
| (33,732 | ) | |
| (33,465 | ) |
Total equity attributable to the equity shareholders of the parent | |
| (32 | ) | |
| (26 | ) | |
| (16,559 | ) |
(1) |
Prior to our initial public
offering, the Company undertook a corporate reorganization pursuant to which TC BioPharm (Holdings) plc became the group holding
company. The Company in turn effected a forward split of its ordinary shares on a 10 for 1 basis. On November 18, 2022 the Company
undertook a reverse share split such that fifty issued ordinary share were exchanged for one new ordinary share. As a result of the
share splits, all references included in this document to units of ordinary shares or per share amounts are reflective of the forward
and reverse share splits for all periods presented. In addition, the exercise prices and the numbers of ordinary shares issuable
upon the exercise of any outstanding options to purchase ordinary shares were proportionally adjusted pursuant to the respective
anti-dilution terms of the share-based payment plans. |
(2) |
Working capital is defined
as current assets less current liabilities. |
RISK
FACTOR SUMMARY
Our
business is subject to a number of risks and uncertainties, including those risks discussed at length in Item 3D (“Risk Factors”)
in our 2022 Form 20-F incorporated into this prospectus by reference. These risks include among others those summarized below. Investing
in our company and its securities involves a high degree of risk. You should carefully consider the risks and uncertainties described
below, together with all of the other information in this prospectus, including the information incorporated by reference to our 2022
Form 20-F, before investing in our company and our securities. If any of these risks materialize, our business, financial condition,
operating results and prospects could be materially and adversely affected. In that event, the price or value of our ADSs in the public
market could decline, and you could lose part or all of your investment.
The
following is a summary of some of the principal risks we face. The list below is not exhaustive, and investors should read the risks
described under the heading “Risk Factors” in our 2022 Form 20-F incorporated by reference herein, as well as the additional
risks set forth in this section, in full.
|
● |
We have
generated operating losses since inception and expect to continue to generate losses. We may never achieve or maintain profitability.
We will continue to require financing to continue to implement our business plan and sustain operations. |
|
|
|
|
● |
We,
as well as our independent registered public accounting firm, in relation to our financial position, have expressed substantial doubt
about our ability to continue as a going concern. The reasons for expressing that doubt in relation to our historical financial statements
remains relevant and applicable to this offering. |
|
|
|
|
● |
Our
lack of any approved products and our limited operating history may make it difficult for an investor to evaluate the success of
our business to date and to assess our future viability. |
|
|
|
|
● |
GD-T
cell therapies are a novel approach to treating cancers and infectious diseases, which have development risks and will require us
to obtain regulatory approvals for development, testing, commercialization, manufacturing and distribution. We may not achieve all
the required regulatory approvals or approvals may not be obtained as timely as needed. |
|
|
|
|
● |
Because
GD-T cell therapies are a novel approach, potential side effects, and long-term efficacy, regulatory approval will require considerable
time for trials, data collection, regulatory submissions and funding for the process. |
|
|
|
|
● |
Enrolling
patients in clinical trials may be difficult for many reasons, including high screen failure, GD-T cell proliferation capacity, timing,
proximity and availability of clinical sites, perceived risks, and publicity about the success or lack of success in the methods
of treatment. |
|
|
|
|
● |
Because
GD-T cell therapies are novel, our research and development and clinical trial results may not support our products intended purposes
and regulatory approval. We are heavily dependent on the success of our lead product candidate (OmnImmune®), and intend to seek
breakthrough therapy designation for some or all of our other therapeutic candidates in due course. |
|
|
|
|
● |
Market
opportunities for certain of our product candidates may be limited to those patients who are ineligible for or have failed prior
treatments. This class of patient may be limited in number, difficult to locate and service, require special governmental approval,
and unable to pay or obtain reimbursement. |
|
|
|
|
● |
We rely
on many third parties for aspects of our product development and commercialization, such as raw material supply, clinical trials,
obtaining approvals, aspects of manufacturing, development of additional product candidates and distribution. We may not be able
to control these parties and their business practices, such as compliance with good manufacturing requirements or their ability to
supply or service us timely, which will likely disrupt our business. |
|
|
|
|
● |
We face
substantial competition: others may discover, develop and/or commercialize competing products before or more successfully than TCB. |
|
● |
Even
if we are able to commercialize any product candidates, such drugs may become subject to unfavorable pricing regulations or third-party
coverage and reimbursement policies. Commercialized products may not be adopted by the medical profession. |
|
|
|
|
● |
Because
we operate internationally, we are subject to a wide array of regulation of the United Kingdom, European Union and United States.
In addition to regulation surrounding new drug development and their manufacture, distribution and use, we will be subject, for example
to data protection rules relating to medical records, medical and general privacy laws, environmental laws regarding medical waste,
and bribery and corrupt practices law, in addition to all the drug related approval, manufacturing and distribution rules. |
|
|
|
|
● |
Product
liability claims are frequent in drug development of novel therapies and insurance is mandatory and expensive. The inability to obtain
insurance may prevent product development and claims may surpass our ability to pay and call into question the efficacy of a product
with resulting reputational damage. |
|
|
|
|
● |
Protecting
our intellectual property is paramount in our ability to be able to commercialize our products and generate revenues and investment
return for our stockholders. We may not be able to obtain the intellectual property protection we seek due to its cost, requirement
to pursue it in many jurisdictions, challenges by others and patent office rejection. |
|
|
|
|
● |
Obtaining
and maintaining our patent protection depends on compliance with various procedural, document submission, fee payment and other requirements
imposed by governmental patent agencies acting in multiple jurisdictions, and our patent protection could be reduced or eliminated
for non-compliance with these requirements. |
|
|
|
|
● |
As part
of product development, we may need to license aspects of our research and products from third parties or if our IP is challenged,
we may have to seek license accommodation, any of which may be expensive, limited in scope, or unavailable. |
|
|
|
|
● |
We currently
have a limited number of employees, and our future success depends on our ability to retain key executives and to attract, retain
and motivate qualified personnel at all levels. |
|
|
|
|
● |
We will
need to grow the size and capabilities of our organization, and we may experience difficulties in managing this growth including,
but not limited to, operating as a public company and taking a therapeutic through to market approval and acceptance. |
|
|
|
|
● |
We expect
to expand our development and regulatory capabilities and potentially implement sales, marketing and distribution capabilities, and
as a result, we may encounter difficulties in achieving and managing our growth, which could disrupt our operations. We expect to
require further funding for these expansions of activity. |
|
|
|
|
● |
We incur
substantial costs as a result of operating as a public company in the United States, and our management is required to devote substantial
time to required SEC compliance and corporate governance practices. |
|
|
|
|
● |
If we
fail to maintain proper and effective internal controls, our ability to produce accurate financial statements on a timely basis could
be impaired, which would adversely affect our business and our stock price. |
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Certain
of our existing stockholders, members of our board of directors and senior management maintain the ability to exercise significant
control over us. The interests of investors may conflict with the interests of these other stockholders. |
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Our
ADSs provide rights that are different from directly holding our ordinary shares. The outstanding Warrants do not have the rights
of shareholders until exercised. Our Warrants form a substantial part of our capitalization, and they have substantial protective
provisions, which may limit our ability to raise capital. |
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Future
sales, or the possibility of future sales, of a substantial number of our ordinary shares, through the additional deposit of ordinary
shares for ADSs and exercises of our Warrants, could adversely affect the price of our ADSs or Warrants in the market. After any
lock up period, a substantial number of our issued and outstanding ordinary shares will be eligible for trading on the public securities
market by their being deposited with the depositary for ADSs. |
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As a
foreign private issuer, we, and our stockholders, have certain exceptions to disclosure regulation under United States federal securities
regulation, and we will take certain NASDAQ governance exceptions. Consequently, investors may not have the totality of disclosure
about and governance controls in TCB as compared to United States domestic reporting companies. |
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Shareholder
rights and recourse will be governed by and ultimately determined by Scottish and United Kingdom law and judicial process, which
in many ways are more limited than United States law and practice. Most of our directors and officers are not resident in the United
States. Most of our assets are located in the United Kingdom. |
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If we
fail to meet the requirements for continued listing on the Nasdaq Global Market or Nasdaq, our ADSs could be delisted from trading,
which would decrease the liquidity of our ADSs and our ability to raise additional capital. |
Risks
Related to this Offering and Ownership of ADSs
The
price of the ADSs has been, and is likely to continue to be, highly volatile, which could result in substantial losses for purchases
of ADSs in this offering.
The
price of the ADSs has been, and is likely to continue to be, highly volatile. The stock market in general and the market for smaller
pharmaceutical and biotechnology companies in particular have experienced extreme volatility that has often been unrelated to the operating
performance of particular companies. As a result of this volatility, purchasers of securities sold pursuant to this registration statement
may not be able to sell their ADSs at or above the price paid by such purchasers and, as such, they may lose some or all of their investment.
Additionally, in the past, securities class action litigation has often been brought against a company following a decline in the market
price of its securities. This risk is especially relevant for us in light of the significant stock price volatility we and other pharmaceutical
companies have experienced in recent years. If we face such litigation, it could result in substantial costs and a diversion of management’s
attention and resources, which could harm our business.
We
have broad discretion in the use of the net proceeds from this offering and any exercise of the Warrants and consequently may not use
them effectively.
Our
management will have broad discretion in the application of the net proceeds from this offering and any exercise of any Warrant and could
spend any such proceeds in ways that do not improve our results of operations or enhance the value of our ADSs. The failure by our management
to apply these funds effectively could result in financial losses that could cause the price of our ADSs to decline and delay the development
of our product candidates.
If
we fail to meet the requirements for continued listing on the Nasdaq Global Market or Nasdaq, our ADSs could be delisted from trading,
which would decrease the liquidity of our ADSs and our ability to raise additional capital.
Our
ADSs are currently listed for quotation on The Nasdaq Capital Market. We are required to meet specified financial requirements in order
to maintain our listing on the Nasdaq Capital Market. These requirements include maintaining a minimum bid price of at least $1.00 per
share for our ADSs, which is referred to as the Bid Price Rule, and maintaining a minimum market value of listed securities, or the MVLS,
of $35,000,000. On July 12 and 15, 2022, we received deficiency letters from the Listings Qualifications Department of the Nasdaq Stock
Market notifying that we were not in compliance with the Bid Price Rule and the MVLS, respectively.
On
December 6, 2022, we received written notification from the listing qualifications staff of the Nasdaq Stock Market, LLC (“Nasdaq”)
indicating that the Company regained compliance with the Bid Price Rule. On January 12, 2023, we received written notification from the
listing qualifications staff of the Nasdaq indicating that we have not regained compliance with the MVLS and
that our securities would be subject to delisting unless we timely request a hearing before a Nasdaq Hearings Panel (the “Panel”).
On March 9, 2023 the Company presented a formal plan to regain compliance to the Panel. On March 17, 2023, the Company announced that
the TC BioPharm (Holdings) plc has been granted a formal extension until June 30, 2023, to regain compliance under Nasdaq Listing Rule
5550(b)(2) or its alternative criteria. On July 27, 2023, the Company received a letter, dated July 26, 2023 (the “Letter”)
from Nasdaq notifying the Company that the Panel has concluded that the Company has regained compliance with Nasdaq’s continued
listing requirements. The Letter stated that, pursuant to Listing Rule 5815(d)(4)(A), the Company will be subject to a Panel Monitor
for a period of one year from the date of the Letter. If, within that one-year monitoring period, the Listing Qualifications staff (the
“Staff”) finds the Company again out of compliance with any continued listing requirement, notwithstanding Rule 5810(c)(2),
the Company will not be permitted to provide the Staff with a plan of compliance with respect to any deficiency and the Staff will not
be permitted to grant additional time for the Company to regain compliance with respect to any deficiency, nor will the Company be afforded
an applicable cure or compliance period. Instead, the Staff will issue a Delist Determination Letter and the Company will have an opportunity
to request a new hearing with the initial Panel or a newly convened Hearings Panel if the initial Panel is unavailable.
On
June 22, 2023, we received a deficiency letter from the Staff notifying that we again were not in compliance with the Bid Price Rule.
We have been provided an initial period of 180 calendar days, or until December 19, 2023, to regain compliance with the applicable listing
requirement. If the Company does not regain compliance with the Bid Price Rule by such date, the Company may be afforded a second 180
calendar day period to regain compliance. To qualify, the Company would be required to meet the continued listing requirement for market
value of publicly held shares and all other initial listing standards for The Nasdaq Capital Market, except for the minimum bid price
requirement. In addition, the Company would be required to notify Nasdaq of its intent to cure the deficiency during the second compliance
period. If the Company does not regain compliance with the minimum bid price requirement by the end of the compliance period (or the
second compliance period, if applicable), the Company’s ADSs will become subject to delisting. In the event that the Company receives
notice that its ADSs is being delisted, the Nasdaq listing rules permit the Company to appeal a delisting determination by the Staff
to a hearings panel.
The
Company continues to execute its business plan and is looking into various options available to regain compliance with Nasdaq’s
continued listing standards and maintain its continued listing on the Nasdaq Capital Market. However, there can be no assurance that
the Company will be able to regain compliance with the Bid Price Rule requirement or will otherwise be in compliance with other Nasdaq
listing rules. In addition, there can be no assurance that the Panel will determine to continue the Company’s listing on The Nasdaq
Capital Market or that the Company will timely evidence compliance with the terms of the extension that was granted by the Panel following
the hearing.
The
exercise of outstanding ADS purchase warrants and share options will have a dilutive effect on the percentage ownership of our capital
stock by existing stockholders.
As of September 29, 2023,
we had outstanding warrants to acquire 6,478,037 ADSs, (including 5,432,500 ADSs issuable under the terms of the warrant Inducement
Letter (Exhibit 10.6)) and share options to purchase 174,781 shares of our ordinary shares. A number of warrants have exercise prices
above our ADSs’ recent trading prices, but the holders have the right, in certain circumstances, to effect a cashless exercise
of such warrants. If a significant number of such warrants and share options are exercised by the holders, the percentage of our ADSs
owned by our existing ADS holders will be diluted.
We
face risks and uncertainties related to litigation, regulatory actions and government investigations and inquiries.
We
are subject to, and may become a party to, litigation, claims, suits, regulatory actions and government investigations and inquiries.
The
outcome of any litigation, regardless of its merits, is inherently uncertain. Any claims and lawsuits, and the disposition of such claims
and lawsuits, could be time-consuming and expensive to resolve, divert management attention and resources, and lead to attempts on the
part of other parties to pursue similar claims. Negative perceptions of our business may result in additional regulation, enforcement
actions by the government and increased litigation, or harm to our ability to attract or retain customers or strategic partners, any
of which may affect our business. Any damage to our reputation, including from publicity from legal proceedings against us or companies
that work within our industry, governmental proceedings, unfavorable media coverage or class action could adversely affect our business,
financial condition and results of operations.
An
unfavorable outcome or settlement or any other legal, administrative and regulatory proceeding may result in a material adverse impact
on our business, results of operations, financial position and overall trends. In addition, regardless of the outcome, litigation can
be costly, time-consuming, and disruptive to our operations. Any claims or litigation, even if fully indemnified or insured, could damage
our reputation and make it more difficult to compete effectively or to obtain adequate insurance in the future.
The
Company has received a lawsuit asserting, among other things, breach of contract under the terms of certain convertible promissory notes.
The lawsuit is pending before the High Court in England, and the Company has retained English legal representatives to defend it. The
company does not believe that the outcome of the claims is likely to be material to the balance sheet of TC BioPharm (Holdings) plc.
As
of January 1, 2024, we may no longer qualify as a foreign private issuer, which would then require us to comply with the Exchange Act’s
domestic reporting regime and cause us to incur significant legal, accounting and other expenses.
In
order to maintain our current status as a foreign private issuer, a majority of our outstanding ordinary shares (including those represented
by ADSs) must continue to be either directly or indirectly owned of record by non-residents of the United States. If a majority of our
outstanding ordinary shares (including those represented by the ADSs) are instead held by U.S. residents, then in order to continue to
maintain our foreign private issuer status, (i) a majority of our executive officers or directors must not be U.S. citizens or residents,
(ii) more than 50% of our assets must not be located in the United States, and (iii) our business must be administered principally outside
the United States.
The
determination of foreign private issuer status is made annually on the last business day of an issuer’s most recently completed
second fiscal quarter. We are assessing whether, as of June 30, 2023, we satisfied the requirements for retaining our foreign private
issuer status as of such date. Assuming we did not satisfy the requirements to remain a foreign private issuer as of June 30, 2023, we
would cease to be a foreign private issuer and cease to be eligible for the foregoing exemptions and privileges effective January 1,
2024.
Losing
our status as a foreign private issuer would require us to comply with all of the periodic disclosure and current reporting requirements
of the Exchange Act applicable to U.S. domestic issuers. We may also be required to make changes in our corporate governance practices
in accordance with various SEC and Nasdaq rules. The regulatory and compliance costs to us under U.S. securities laws, if we are required
to comply with the reporting requirements applicable to a U.S. domestic issuer, may be significantly higher than the cost we would incur
as a foreign private issuer. As a result, we would expect that a loss of foreign private issuer status will increase our legal and financial
compliance costs and will make some activities highly time consuming and costly. We also expect that if we will be required to comply
with the rules and regulations applicable to U.S. domestic issuers, it will make it more difficult and expensive for us to obtain director
and officer liability insurance; we may therefore be required to accept reduced coverage or incur substantially higher costs to obtain
coverage. These rules and regulations could also make it more difficult for us to attract and retain qualified members of our board of
directors.
If
we fail to maintain proper and effective internal controls, our ability to produce accurate financial statements on a timely basis could
be impaired, which would adversely affect our business and our stock price.
Ensuring
that we have adequate internal financial and accounting controls and procedures in place to produce accurate financial statements on
a timely basis is a costly and time-consuming effort that needs to be re-evaluated frequently. We may discover material weaknesses in
our internal financial and accounting controls and procedures that need improvement from time to time.
Management
is responsible for establishing and maintaining adequate internal control over financial reporting to provide reasonable assurance regarding
the reliability of our financial reporting and the preparation of financial statements for external purposes. Management does not expect
that our internal control over financial reporting will prevent or detect all errors and all fraud. A control system, no matter how well
designed and operated, can provide only reasonable, not absolute, assurance that the control system’s objectives will be met. Because
of the inherent limitations in all control systems, no evaluation of controls can provide absolute assurance that misstatements due to
error or fraud will not occur or that all control issues and instances of fraud, if any, within our company will have been detected.
Pursuant
to Section 404 of the Sarbanes-Oxley Act of 2002, or Section 404, we are required to furnish a report by our senior management on our
internal control over financial reporting, commencing with our second annual report. However, while we remain an EGC we are not required
to include an attestation report on internal control over financial reporting issued by our independent registered public accounting
firm. To prepare for eventual compliance with Section 404, once we no longer qualify as an EGC, we are engaged in a process to document
and evaluate our internal control over financial reporting, which is both costly and challenging. In this regard, we will need to continue
to dedicate internal resources, potentially engage outside consultants, adopt a detailed work plan to assess and document the adequacy
of internal control over financial reporting, continue steps to improve control processes as appropriate, validate through testing that
controls are functioning as documented, and implement a continuous reporting and improvement process for internal control over financial
reporting. Despite our efforts, there is a risk that we will not be able to conclude, within the prescribed timeframe or at all, that
our internal control over financial reporting is effective as required by Section 404. If we identify one or more material weaknesses,
it could result in an adverse reaction in the financial markets due to a loss of confidence in the reliability of our financial statements.
In addition, if we are unable to produce accurate financial statements on a timely basis, investors could lose confidence in the reliability
of our financial statements, which could cause the market price of either of our ADSs or Warrants, or both, to decline and make it more
difficult for us to finance our operations and growth.
The
Company notes that the auditors identified that the Company experienced difficulty in the accounting for complex financial instruments
and the Company lacked adequate internal control over the account and assessment of complex financial instruments following control deficiencies
which they believed constituted a material weakness in the Company’s internal control over financial reporting as of December 31,
2022. The Company recognizes this error as a material weakness and has begun to establish controls to support assessment and review of
accounting for complex financial instruments.
DIVIDEND
POLICY
Since
inception, we have not declared or paid any dividends on our ordinary shares. We do not have any current plans to pay any dividends on
our ordinary shares, including those represented by ADSs, in the foreseeable future. We intend to retain all our available funds and
any future earnings to operate and expand our business. Because we do not anticipate paying any cash dividends in the foreseeable future.
Capital appreciation, if any, will be your sole source of gains, and you may never receive a return on your investment.
The
determination to pay dividends, if any, will be made at the discretion of our board of directors and may be based on a number of factors,
including our future operations and earnings, capital requirements and surplus, general financial condition, contractual and legal restrictions
and other factors that the board of directors may deem relevant.
Under
current Scottish law, among other things, a company’s accumulated realized profits must exceed its accumulated realized losses
(on a non-consolidated basis) before dividends can be paid. Accordingly, we may only pay dividends if we have sufficient distributable
reserves (on a non-consolidated basis), which are our accumulated realized profits that have not been previously distributed or capitalized
less our accumulated realized losses, so far as such losses have not been previously written off in a reduction or reorganization of
capital.
USE
OF PROCEEDS
We
will not receive any proceeds from the sale by the selling shareholders of the ADSs registered hereby or the shares underlying such ADSs.
All net proceeds from the sale of the shares represented by ADSs will go to the selling shareholders.
We
may receive proceeds from the exercise of the Warrants to the extent the warrants are exercised. We can make no assurances that any of
the Warrants will be exercised, or if exercised, the quantity that will be exercised or the period in which such Warrants will be exercised.
We
intend to use the net proceeds from any exercise of the Warrants for cash, together with our cash on hand, to advance our preclinical
and clinical pipeline.
Our
management will have broad discretion over the use of the net proceeds from any exercise of the Warrants for cash. The amounts and timing
of our expenditures will depend upon numerous factors, including the results of our research and development efforts, the timing, cost
and success of preclinical studies and ongoing clinical trials or clinical trials we may commence in the future, the timing of regulatory
submissions, our ability to obtain additional financing, the amount of cash obtained through our existing collaborations and future collaborations,
if any, and any unforeseen cash needs.
Pending
any use described above, we may invest any proceeds from the exercise of any Warrants for cash in short- and intermediate-term interest-bearing
obligations, investment-grade instruments, certificates of deposit or guaranteed government obligations.
MATERIAL
INCOME TAX CONSIDERATIONS
The
following summary contains a description of material U.K. and U.S. federal income tax consequences of the acquisition, ownership and
disposition of our ordinary shares. This summary should not be considered a comprehensive description of all the tax considerations that
may be relevant to the decision to acquire our ordinary shares.
U.S.
Federal Income Taxes
The
following is a summary of the material U.S. federal income tax consequences to U.S. Holders (as defined below) of purchasing, owing and
disposing of the ordinary shares or ADSs. This discussion is included for general informational purposes only, does not purport to consider
all aspects of U.S. federal income taxation that might be relevant to a U.S. Holder, and does not constitute, and is not, a tax opinion
for or tax advice to any particular U.S. Holder of ordinary shares or the ADSs. The summary does not address any U.S. tax matters other
than those specifically discussed. The summary is based on the provisions of the U.S. Internal Revenue Code of 1986, as amended (the
“Code”), existing, temporary and proposed Treasury Regulations issued thereunder, judicial decisions and administrative
rulings and pronouncements and other legal authorities, all as of the date hereof and all of which are subject to change, possibly with
retroactive effect. Any such change could alter the tax consequences described herein.
The
discussion below applies only to U.S Holders as capital assets within the meaning of Section 1221 of the Code (generally, property held
for investment), and does not address the tax consequences that may be relevant to U.S. Holders who, in light of their particular circumstances,
may be subject to special tax rules, including without limitation:
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insurance companies, tax-exempt
organizations, regulated investment companies, real estate investment trusts, brokers or dealers in securities or foreign currencies,
banks and other financial institutions, mutual funds, retirement plans, traders in securities that elect to mark to market, certain
former U.S. citizens or long-term residents; |
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U.S. Holders that are classified
for U.S. federal income tax purposes as partnerships and other pass-through entities and investors therein; |
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U.S. Holders who hold ordinary
shares or ADSs as part of a hedge, straddle, constructive sale, conversion, or other integrated or risk-reduction transaction, as
“qualified small business stock,” within the meaning of Section 1202 of the Code or as Section 1244 stock for purposes
of the Code; |
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U.S. Holders who hold ordinary
shares or ADSs through individual retirement or other tax-deferred accounts; |
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U.S. Holders that have
a functional currency other than the U.S. dollar; |
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U.S. Holders who are subject
to the alternative minimum tax provisions of the Code or the Medicare surtax of 3.8% on net investment income imposed by Section
1411 of the Code; |
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U.S. Holders who acquire
their ordinary shares or ADSs pursuant to any employee share option or otherwise as compensation; |
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U.S. Holders required to
accelerate the recognition of any item of gross income with respect to their ordinary shares or ADSs as a result of such income being
recognized on an applicable financial statement; or |
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U.S. Holders who hold or
held, directly or indirectly, or are treated as holding or having held under applicable constructive attribution rules, 10% or more
of the ordinary shares or ADSs of the company, measured by voting power or value. |
Any
such U.S. Holders should consult their own tax advisors.
For
purposes of this discussion, a “U.S. Holder” means a holder of our ordinary shares or ADSs that is or is treated as, for
U.S. federal income tax purposes,
(i) |
an individual citizen or
resident of the United States; |
(ii) |
a corporation (or other
entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States,
any State thereof or the District of Columbia or any entity treated as such for U.S. federal income tax purposes; |
(iii) |
an estate the income of
which is subject to U.S. federal income taxation regardless of its source, or |
(iv) |
a trust (A) the administration
over which a U.S. court exercises primary supervision and all of the substantial decisions of which one or more U.S. persons have
the authority to control, or (B) that has a valid election in effect under the applicable Treasury Regulations to be treated as a
U.S. person under the Code. |
If
a partnership or other pass-through entity (including any entity or arrangement treated as such for purposes of U.S. federal income tax
law) holds our ordinary shares or ADSs, the tax treatment of a partner of such partnership or member of such entity will generally depend
upon the status of the partner and the activities of the partnership. Partnerships and other pass-through entities holding our ordinary
shares or ADSs, and any person who is a partner or member of such entities should consult their own tax advisors regarding the tax consequences
of purchasing, owning and disposing of the ordinary shares or ADSs.
Passive
Foreign Investment Company Considerations
A
non-U.S. corporation, such as TCB, will be classified as a passive foreign investment company, or PFIC, for U.S. federal income tax purposes,
if, in the case of any particular taxable year, either (i) 75% or more of its gross income for such taxable year consists of certain
types of “passive” income or (ii) 50% or more of the value of its assets (based on an average of the quarterly values of
the assets) during such taxable year is attributable to assets that produce or are held for the production of passive income. For this
purpose, cash is categorized as a passive asset and the company’s un-booked intangibles associated with active business activities
may generally be classified as active assets. Passive income generally includes, among other things, dividends, interest, rents, royalties,
and gains from the disposition of passive assets. For this purpose, a foreign corporation will be treated as owning its proportionate
share of the assets and earning its proportionate share of the income of any other non-U.S. corporation in which it owns, directly or
indirectly, more than 25% (by value) of the stock.
Based
upon its current income and assets and projections as to the value of the ordinary shares or ADSs, it is not presently expected that
we will be classified as a PFIC for the 2022 taxable year or the foreseeable future.
The
determination of whether we will be or become a PFIC will depend upon the composition of its income (which may differ from our historical
results and current projections) and assets and the value of its assets from time to time, including, in particular the value of its
goodwill and other un-booked intangibles (which may depend upon the market value of the ordinary shares or ADSs from time to time and
may be volatile). Among other matters, if our market capitalization is less than anticipated or subsequently declines, we may be classified
as a PFIC for the taxable year in the 2021 taxable year or future taxable years. It is also possible that the IRS may challenge the classification
or valuation of our assets, including its goodwill and other unbooked intangibles, or the classification of certain amounts received
by us, including interest earnings, which may result in our being, or becoming classified as, a PFIC for the taxable year in 2021 or
future taxable years.
The
determination of whether we will be or become a PFIC may also depend, in part, on how, and how quickly, it uses liquid assets and the
cash proceeds of this offering or otherwise. If we were to retain significant amounts of liquid assets, including cash, the risk of our
being classified as a PFIC may substantially increase. Because there are uncertainties in the application of the relevant rules and PFIC
status is a factual determination made annually after the close of each taxable year, there can be no assurance that we will not be a
PFIC for the 2022 taxable year or any future taxable year, and no opinion of counsel has or will be provided regarding the classification
of us as a PFIC. If we were classified as a PFIC for any year during which a holder held our ordinary shares or ADSs, it generally would
continue to be treated as a PFIC for all succeeding years during which such holder held the ordinary shares or ADSs. The discussion below
under “—Dividends Paid on Ordinary Shares or ADSs” and “—Sale or Other Disposition of Ordinary Shares or
ADS” is written on the basis that we will not be classified as a PFIC for U.S. federal income tax purposes.
Dividends
Paid on Ordinary Shares including ordinary shares represented by ADSs
Subject
to the PFIC rules described below, any cash distributions (including constructive distributions) paid on the ordinary shares including
ordinary shares represented by ADSs out of our current or accumulated earnings and profits, as determined under U.S. federal income tax
principles, will generally be includible in the gross income of a U.S. Holder as dividend income on the day actually or constructively
received by the U.S. Holder, in the case of ordinary shares including ordinary shares represented by ADSs. Because we do not intend to
determine our earnings and profits on the basis of U.S. federal income tax principles, any distribution will generally be treated as
a “dividend” for U.S. federal income tax purposes. Under current law, a non-corporate recipient of a dividend from a “qualified
foreign corporation” will generally be subject to tax on the dividend income at the lower applicable net capital gains rate rather
than the marginal tax rates generally applicable to ordinary income provided that certain holding period and other requirements are met.
A
non-U.S. corporation (other than a corporation that is classified as a PFIC for the taxable year in which the dividend is paid or the
preceding taxable year) will generally be considered to be a qualified foreign corporation (i) if it is eligible for the benefits of
a comprehensive tax treaty with the United States which the Secretary of Treasury of the United States determines is satisfactory for
these purposes and which includes an exchange of information program, or (ii) with respect to any dividend paid by such corporation on
its stock, if such stock is readily tradable on an established securities market in the United States. We believe we are eligible for
the benefits of the Convention Between the Government of the United States of America and the Government of the United Kingdom of Great
Britain and Northern Ireland for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income
and On Capital Gains, or the United States-United Kingdom income tax treaty (which the Secretary of the Treasury of the United States
has determined is satisfactory for this purpose and includes an exchange of information program), in which case it would be treated as
a qualified foreign corporation with respect to dividends paid on the ordinary shares or ADSs. U.S. Holders are urged to consult their
tax advisors regarding the availability of the reduced tax rate on dividends in their particular circumstances. Dividends received on
the ordinary shares will not be eligible for the dividends received deduction allowed to corporations.
Sale
or Other Disposition of Ordinary Shares or ADSs
Subject
to the PFIC rules discussed below, a U.S. Holder of our ordinary shares or ADSs will generally recognize capital gain or loss, if any,
upon the sale or other disposition of ordinary shares or ADSs, respectively, in an amount equal to the difference between the amount
realized upon the disposition and the U.S. Holder’s adjusted tax basis in such ordinary shares or ADSs. Any capital gain or loss
will be long-term capital gain or loss if the ordinary shares or ADSs have been held for more than one year and will generally be United
States source capital gain or loss for United States foreign tax credit purposes. Long-term capital gains of non-corporate taxpayers
are currently eligible for reduced rates of taxation.
Disposition
of Foreign Currency
U.S.
Holders are urged to consult their tax advisors regarding the tax consequences of receiving, converting or disposing of any non-U.S.
currency received as dividends on our ordinary shares or ADSs.
Tax
on Net Investment Income
A
U.S. Holder may be subject to a Medicare surtax of 3.8% on some or all of such U.S. Holder’s “net investment income”
as defined in Section 1411 of the Code. Net investment income generally includes income from the ordinary shares or ADSs unless such
income is derived in the ordinary course of the conduct of a trade or business (other than a trade or business that consists of certain
passive or trading activities). You should consult your tax advisors regarding the effect this Medicare tax may have, if any, on your
acquisition, ownership or disposition of ordinary shares or ADSs.
Passive
Foreign Investment Company Rules
If
we are is classified as a PFIC for any taxable year during which a U.S. Holder holds our ordinary shares or ADSs, unless the holder makes
a mark-to-market election (as described below), the holder will, except as discussed below, be subject to special tax rules that have
a penalizing effect, regardless of whether we remain a PFIC, on (i) any excess distribution that we make to the holder (which generally
means any distribution paid during a taxable year to a holder that is greater than 125% of the average annual distributions paid in the
three preceding taxable years or, if shorter, the holder’s holding period for the ordinary shares or ADSs), and (ii) any gain realized
on the sale or other disposition, including, under certain circumstances, a pledge, of our ordinary shares or ADSs. Under the PFIC rules:
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The excess distribution
and/or gain will be allocated ratably over the U.S. Holder’s holding period for the ordinary shares or ADSs; |
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The amount of the excess
distribution or gain allocated to the taxable year of the distribution or disposition and any taxable years in the U.S. Holder’s
holding period prior to the first taxable year in which we are classified as a PFIC, or a pre-PFIC year, will be taxable as ordinary
income; and |
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The amount of the excess
distribution or gain allocated to each taxable year other than the taxable year of the distribution or disposition or a pre-PFIC
year, will be subject to tax at the highest tax rate in effect applicable to the individuals or corporations, and the interest charge
generally applicable to underpayments of tax will be imposed on the resulting tax attributable to each such year. |
If
we are a PFIC for any taxable year during which a U.S. Holder holds our ordinary shares or ADSs and any of its non-U.S. subsidiaries
is also a PFIC, such holder would be treated as owning a proportionate amount (by value) of the shares of the lower-tier PFIC for purposes
of the application of these rules. Each U.S. Holder is advised to consult its tax advisors regarding the application of the PFIC rules
to any of our subsidiaries.
As
an alternative to the foregoing rules, a U.S. Holder of “marketable stock” in a PFIC may make a mark-to-market election with
respect to such ordinary shares or ADSs, provided that they are “regularly traded” (as specially defined under the Code)
on The Nasdaq Stock Market. No assurances may be given regarding whether the ordinary shares or ADSs will qualify, or will continue to
be qualified, as being regularly traded in this regard. If a mark-to-market election is made, the U.S. Holder will generally (i) include
as ordinary income for each taxable year that we are a PFIC the excess, if any, of the fair market value of ordinary shares or ADSs held
at the end of the taxable year over the adjusted tax basis of such securities and (ii) deduct as an ordinary loss the excess, if any,
of the adjusted tax basis of such securities over the fair market value of such securities held at the end of the taxable year, but only
to the extent of the net amount previously included in income as a result of the mark-to-market election. The U.S. Holder’s adjusted
tax basis in the ordinary shares or ADSs would be adjusted to reflect any income or loss resulting from the mark-to-market election.
If a U.S. Holder makes an effective mark-to-market election, in each year that we are a PFIC any gain recognized upon the sale or other
disposition of the ordinary shares or ADSs will be treated as ordinary income and loss will be treated as ordinary loss, but only to
the extent of the net amount previously included in income as a result of the mark-to-market election. U.S. Holders of our ordinary shares
or ADSs should consult their tax advisors regarding the availability of a mark-to-market election with respect to such ordinary shares
or ADSs.
If
a U.S. Holder makes a mark-to-market election in respect of a corporation classified as a PFIC and such corporation ceases to be classified
as a PFIC, the holder will not be required to take into account the mark-to-market gain or loss described above during any period that
such corporation is not classified as a PFIC.
Because
a mark-to-market election cannot be made for any lower-tier PFICs that a PFIC may own, a U.S. Holder who makes a mark-to-market election
with respect to the ordinary shares or ADSs may continue to be subject to the general PFIC rules with respect to such holder’s
indirect interest in any of our non-U.S. subsidiaries that is classified as a PFIC.
We
do not intend to provide information necessary for U.S. Holder’s to make qualified electing fund elections, which, if available,
would result in tax treatment different from the general tax treatment for PFICs described above. However, as described above under “Passive
Foreign Investment Company Considerations-PFIC Classification of TCB,” it is not presently expected that we will be classified
as a PFIC for the 2022 taxable year or the foreseeable future.
As
discussed above under “Dividends Paid on Ordinary Shares or ADSs”, dividends that we pay on the ordinary shares or ADSs will
not be eligible for the reduced tax rate that applies to qualified dividend income if we are classified as a PFIC for the taxable year
in which the dividend is paid or the preceding taxable year. In addition, if a U.S. Holder owns the ordinary shares or ADSs during any
taxable year that we are a PFIC, the holder must file an annual information return with the IRS. Each holder is urged to consult its
tax advisor concerning the U.S. federal income tax consequences of purchasing, holding, and disposing ordinary shares or ADSs if we are
or become a PFIC, including the possibility of making a mark-to-market election and the unavailability of the qualified electing fund
election.
Information
reporting and backup withholding
Certain
U.S. Holders are required to report information to the IRS relating to an interest in “specified foreign financial assets,”
including shares issued by a non-U.S. corporation, for any year in which the aggregate value of all specified foreign financial assets
exceeds $50 thousand (or a higher U.S. dollar amount prescribed by the IRS), subject to certain exceptions (including an exception for
shares held in custodial accounts maintained with a United States financial institution). These rules also impose penalties if a holder
is required to submit such information to the IRS and fails to do so.
In
addition, U.S. Holders may be subject to information reporting to the IRS and backup withholding with respect to dividends on and proceeds
from the sale or other disposition of our ordinary shares or ADSs. Information reporting will apply to payments of dividends on, and
to proceeds from the sale or other disposition of, our ordinary shares or ADSs by a paying agent within the United States to a holder,
other than holders that are exempt from information reporting and properly certify their exemption. A paying agent within the United
States will be required to withhold at the applicable statutory rate, currently 24%, in respect of any payments of dividends on, and
the proceeds from the disposition of, our ordinary shares or ADSs within the U.S. to a U.S. Holder (other than holders that are exempt
from backup withholding and properly certify their exemption) if the holder fails to furnish its correct taxpayer identification number
or otherwise fails to comply with applicable backup withholding requirements. U.S. Holders who are required to establish their exempt
status generally must provide a properly completed IRS Form W-9.
Backup
withholding is not an additional tax. Amounts withheld as backup withholding may be credited against a holder’s U.S. federal income
tax liability. A U.S. Holder generally may obtain a refund of any amounts withheld under the backup withholding rules by filing the appropriate
claim for refund with the IRS in a timely manner and furnishing any required information. Each U.S. Holder is advised to consult with
its tax advisor regarding the application of the United States information reporting rules to their particular circumstances.
Material
United Kingdom Tax Considerations
The
following is a description of the material U.K. tax considerations relating primarily to the ownership and disposal of our ordinary shares
or ADSs by the U.S. Holders described above. The U.K. tax comments set out below are based on current U.K. tax law as applied in Scotland,
and HMRC practice (which may not be binding on HMRC) as at the date of this summary, both of which are subject to change, possibly with
retrospective effect. They are intended as a general guide and, save where otherwise stated, only apply to you if you are not resident
in the U.K. for U.K. tax purposes and do not hold our ordinary shares or ADSs for the purposes of a trade, profession or vocation that
you carry on in the U.K. through a branch, agency or permanent establishment in the U.K. and if you hold our ordinary shares as an investment
for U.K. tax purposes and are not subject to special rules.
This
summary does not address all possible tax consequences relating to an investment in our ordinary shares or ADSs. In particular it does
not cover the U.K. inheritance tax consequences of holding our ordinary shares or ADSs. It assumes that the depositary or DTC has not
made an election under section 97A(1) of the Finance Act 1986. It assumes that we do not (and will not at any time) derive 75% or more
of our qualifying asset value, directly or indirectly, from U.K. land, and that we are and remain solely resident in the U.K. for tax
purposes. It assumes that the holder is not our officer or our employee (or of any related company of ours) and has not (and is not deemed
to have) acquired the ordinary shares or ADSs by virtue of an office or employment. It assumes that a holder of ordinary shares or ADSs
is the beneficial owner of the underlying ordinary shares for U.K. tax purposes. This summary is for general information only and is
not intended to be, nor should it be considered to be, legal or tax advice to any particular holder. Holders of our ordinary shares or
ADSs are strongly urged to consult their tax advisers in connection with the U.K. tax consequences of their investment in our securities.
U.K.
Taxation of Dividends and Distributions
We
will not be required to withhold amounts for or on account of U.K. tax at source when paying a dividend or distribution in respect of
our ordinary shares.
Individual
holders who hold our ordinary shares as an investment, who are not resident in the U.K. for U.K. tax purposes should not be subject to
U.K. income tax in respect of any dividends on our ordinary shares, unless they hold their ordinary shares in connection with any trade,
profession or vocation carried on (whether solely or in partnership) by them in the U.K. through a branch, agency or permanent establishment
in the U.K.. In these circumstances, such holder may, depending on his or her individual circumstances, be chargeable to U.K. income
tax in respect of our dividends.
Corporate
holders which are not resident in the U.K. for U.K. tax purposes should not be subject to U.K. corporation tax in respect of any dividends
on our ordinary shares, unless they carry on a trade in the U.K. through a permanent establishment to which the ordinary shares are attributable.
In these circumstances, such holders may, depending on their individual circumstances and if an exemption from U.K. corporation tax in
respect of dividend payments does not apply, be chargeable to U.K. corporation tax in respect of our dividends.
U.K.
Taxation of Capital Gains
An
individual holder who is not resident in the U.K. for U.K. tax purposes should not be liable to U.K. capital gains tax on capital gains
realized on the disposal of their ordinary shares unless such holder carries on (whether solely or in partnership) a trade, profession
or vocation in the U.K. through a branch or agency in the U.K. to which our ordinary shares are attributable. In these circumstances,
such holder may, depending on his or her individual circumstances, be chargeable to U.K. capital gains tax on chargeable gains arising
from a disposal of his or her ordinary shares.
Any
such individual holder of our ordinary shares who is temporarily non-resident for U.K. tax purposes will, in certain circumstances, become
liable to U.K. tax on capital gains in respect of gains realized while they were not resident in the U.K.
A
corporate holder of our ordinary shares which is not resident in the U.K. for U.K. tax purposes should not be liable for U.K. corporation
tax on chargeable gains realized on the disposal of our ordinary shares unless it carries on a trade in the U.K. through a permanent
establishment in the U.K. to which our ordinary shares are attributable. In these circumstances, a disposal of ordinary shares by such
holder may give rise to a chargeable gain or an allowable loss for the purposes of U.K. corporation tax.
Stamp
Duty and Stamp Duty Reserve Tax
The
discussion below relates to the holders of our ordinary shares or ADSs wherever resident, however it should be noted that special rules
may apply to certain persons such as market makers, brokers, dealers or intermediaries.
As
a general rule (and except in relation to depositary receipt systems and clearance services (as to which see below)), no UK stamp duty
or stamp duty reserve tax, or SDRT, is payable on the issue of the ordinary shares underlying the ADSs.
An
unconditional agreement to transfer ordinary shares will normally give rise to a charge to SDRT at the rate of 0.5% of the amount or
value of the consideration payable for the transfer. The purchaser of the shares is liable for the SDRT. Transfers of ordinary shares
in certificated form are generally also subject to stamp duty at the rate of 0.5% of the amount or value of the consideration given for
the transfer (rounded up to the next £5.00). Stamp duty is normally paid by the purchaser. The charge to SDRT will be cancelled
or, if already paid, repaid (generally with interest), where a transfer instrument has been duly stamped within six years of the charge
arising, (either by paying the stamp duty or by claiming an appropriate relief) or if the instrument is otherwise exempt from stamp duty.
Under
current UK legislation, an issue or transfer of ordinary shares or an unconditional agreement to transfer ordinary shares to a clearance
service or a depositary receipt system (including to a nominee or agent for, a person whose business is or includes the issue of depositary
receipts or the provision of clearance services) will generally be subject to SDRT (and, in the case of transfers, where the transfer
is effected by a written instrument, stamp duty) at a higher rate of 1.5% of the amount or value of the consideration given for the transfer
or, in certain circumstances, the value of the ordinary shares unless the clearance service has made and maintained an election under
section 97A of the UK Finance Act 1986, or a section 97A election. It is understood that HMRC regards the facilities of DTC as a clearance
service for these purposes and we are not aware of any section 97A election having been made by the DTC.
However,
based on current published HMRC practice following European Union case law in respect of the European Council Directives 69/335/EEC and
2009/7/EC, no SDRT is generally payable in respect of such an issue of ordinary shares and no SDRT or stamp duty is generally payable
in respect of such a transfer of ordinary shares where such transfer is an integral part of an issue of share capital. It is noted that
on January 31, 2020 the United Kingdom ceased to be a Member State of the European Union. Accordingly, the extent to which HMRC’s
position will remain as set out in this paragraph following the end of the transition period on December 31, 2020 is uncertain.
Any
stamp duty or SDRT payable on an issue or transfer of ordinary shares to a depositary receipt system or clearance service (although strictly
accountable by the clearance service or depositary receipt system operator or their nominee) will in practice generally be paid by the
transferors or participants in the clearance service or depositary receipt system. Specific professional advice should be sought before
incurring or reimbursing the costs of a 1.5% stamp duty or SDRT charge in any circumstances.
No
UK SDRT or stamp duty is required to be paid in respect of the issue or transfer of, or an agreement to transfer, ADSs (including by
way of a paperless transfer of ADSs through the facilities of DTC).
SELLING
SHAREHOLDERS
The
ADSs being offered by the selling shareholders are those issuable to the selling shareholder upon exercise of the Warrants. For
additional information regarding the issuances of those securities, see “Recent Developments – August 2023 Warrant Inducement”
above. We are registering the ADSs in order to permit the selling shareholders to offer the ADSs issuable upon exercise of the Warrants
for resale from time to time. Except with respect to the Placement Agent, which acted as a placement agent and/or underwriter in connection
with our November 2022 and March 2023 financing, the selling shareholders have not had any material relationship with us within the past
three years.
The
table below lists the selling shareholder and other information regarding the beneficial ownership of the ADSs by the selling shareholder.
The second column lists the number of ADSs beneficially owned by the selling shareholders, based on its ownership of the ADSs
and warrants, as of September 29, 2023, assuming exercise of the Warrants held by the selling shareholders on that date, without regard
to any limitations on exercises.
The
third column lists the ADSs being offered by this prospectus by the selling shareholder.
In
accordance with the terms of a warrant inducement agreement with the selling shareholder, this prospectus generally covers the resale
of the number of ADSs issuable upon exercise of the Warrants issued to the selling shareholders in the “Recent Developments –
August 2023 Warrant Inducement” described above, determined as if the outstanding Warrants were exercised in full as of the trading
day immediately preceding the date this registration statement was initially filed with the SEC. The fourth column assumes the sale of
all of the ADSs offered by the selling shareholder pursuant to this prospectus.
Under
the terms of the Warrants, a selling shareholder may not exercise any such warrants to the extent such exercise would cause such selling
shareholder, together with its affiliates and attribution parties, to beneficially own a number of ADSs which would exceed 4.99% of our
then outstanding ADSs following such exercise, excluding for purposes of such determination ADSs issuable upon exercise of such warrants
which have not been exercised. The number of ADSs in the second and fourth columns do not reflect this limitation. The selling shareholders
may sell all, some or none of their shares in this offering. See “Plan of Distribution.”
Name
of Selling Shareholder | |
Number
of ADSs Owned Prior to Offering | | |
Maximum
Number of ADSs to be Sold Pursuant to this Prospectus | | |
Number
of ADSs Owned After Offering | |
Armistice
Capital, LLC(1) | |
| 18,750,148 | | |
| 12,475,000 | | |
| 6,275,148 | |
Craig
Schwabe (2) | |
| 28,210 | | |
| 15,789 | | |
| 12,421 | |
Charles
Worthman (2) | |
| 8,359 | | |
| 4,678 | | |
| 3,681 | |
Michael
Vasinkevich (2) | |
| 536,005 | | |
| 299,985 | | |
| 236,020 | |
Noam
Rubinstein (2) | |
| 263,301 | | |
| 147,361 | | |
| 115,940 | |
(1)
Includes (i) 6,237,500 ADSs issuable under the warrant inducement letter (Exhibit 10.6), (ii) 12,475,000 ADSs issuable upon exercise
of Warrants, and (iii) 37,648 ADSs issuable upon exercise of publicly traded warrants. The securities are directly held by Armistice
Capital Master Fund Ltd., a Cayman Islands exempted company (the “Master Fund”), and may be deemed to be indirectly beneficially
owned by: (i) Armistice Capital, LLC, or Armistice Capital, as the investment manager of the Master Fund; and (ii) Steven Boyd, as the
Managing Member of Armistice Capital. Armistice Capital and Steven Boyd disclaim beneficial ownership of the securities except to the
extent of their respective pecuniary interests therein. Of the total number of shares identified in the column entitled ‘Maximum
Number of ADSs to be Sold Pursuant to this Prospectus’ above, such ADSs are subject to a beneficial ownership limitation preventing
the Master Fund from exercising any portion of the Warrants if such exercise would result in the Master Fund owning greater than 4.99%
of our outstanding shares following such exercise. The address of the Master Fund is c/o Armistice Capital, LLC, 510 Madison Ave, 7th
Floor, New York, NY 10022.
(2)
The selling shareholder is affiliated with the Placement Agent. The Placement Agent is a registered broker-dealer, has a registered
address of c/o H.C. Wainwright & Co., LLC, 430 Park Ave, 3rd Floor, New York, NY 10022, and has sole voting and dispositive power
over the securities held. The number of shares being registered hereby for resale consist of shares of ordinary shares issuable
upon exercise of placement agent warrants, which were received as compensation in connection with the August 2023 Warrant
Inducement. The selling shareholder acquired the placement agent warrants in the ordinary course of business and,
at the time of acquisition of the securities that are registered for resale, the selling shareholder had no agreements or understanding,
directly or indirectly, with any person to distribute such securities.
DESCRIPTION OF SECURITIES
We are registering for resale Series D Warrants to purchase up to 12,475,000
ADSs and Placement Agent Warrants to purchase up to 467,813 ADSs. We are registering the ADSs issuable from time to time upon exercise
of the Series D Warrants and the Placement Agent Warrants.
American Depositary
Shares (‘ADSs’)
The
description of our ADSs under the section “Share Capital” in our Annual Report on Form 20-F for the fiscal year ended December
31, 2022 is incorporated herein by reference.
Series D Warrants
Duration and Exercise Price
Each Series D Warrant will have an exercise price equal
to £0.35 per ADS. The Series D Warrants will be immediately exercisable from the date of issuance until the five and one-half year anniversary
of the initial exercise date. The exercise price and number of ADSs issuable upon exercise is subject to appropriate adjustment in the
event of stock dividends, stock splits, subsequent rights offerings, pro rate distributions, reorganizations, or similar events affecting
the Company’s ordinary shares and ADSs and the exercise price.
Exercisability
The Series D Warrants will be exercisable, at the option
of each holder, in whole or in part, by delivering to the Company a duly executed exercise notice accompanied by payment in full for
the number of ADSs purchased upon such exercise (except in the case of a cashless exercise as discussed below). A holder (together with
its affiliates) may not exercise any portion of such holder’s New Warrants to the extent that the holder would own more than 4.99%
(or, at the election of the holder, 9.99%) of the outstanding ADSs immediately after exercise, except that upon prior notice from the
holder to the Company, the holder may increase or decrease the amount of ownership of outstanding ADSs after exercising the holder’s
Series D Warrants up to 9.99% of the number of the Company’s ordinary shares outstanding immediately after giving effect to the exercise,
as such percentage ownership is determined in accordance with the terms of the Series D Warrants, provided that any increase will not be effective
until 61 days following notice to us.
Cashless Exercise
If, at the time a holder exercises its Series Warrants,
a registration statement registering the resale of the New Warrant ADSs by the holder under the Securities Act of 1933, as amended (the
“Securities Act”) is not then effective or available, then in lieu of making the cash payment otherwise contemplated to be
made to the Company upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such
exercise (either in whole or in part) the net number of ordinary shares represented by ADSs determined according to a formula set forth
in the Series Warrants.
Trading Market
There is no established trading market for the
Series D Warrants, and the Company does not expect an active trading market to develop. The Company does not intend to apply to list the Series D
Warrants on any securities exchange or other trading market. Without a trading market, the liquidity of the Series D Warrants will be extremely
limited.
Rights as a Stockholder
Except as otherwise provided in the
Series D Warrants or by virtue of the holder’s ownership of the Company’s ADSs, such holder of Series D Warrants does
not have the rights or privileges of a holder of the Company’s ADSs, including any voting rights, until such holder exercises
such holder’s Series D Warrants. The New Warrants will provide that the holders of the Series D Warrants have the right to
participate in distributions or dividends paid on the Company’s ADSs.
Fundamental Transactions
If at any time the Series D Warrants are outstanding,
the Company, either directly or indirectly, in one or more related transactions effects a Fundamental Transaction (as defined in the
Series D Warrant), a Holder of New Warrants will be entitled to receive, upon exercise of the Series D Warrants, the kind and amount of securities,
cash or other property that such holder would have received had they exercised the Series D Warrants immediately prior to the Fundamental
Transaction. As an alternative, and at the Holder’s option in the event of a Fundamental Transaction, exercisable at any time concurrently
with, or within 30 days after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of
the applicable Fundamental transaction), the Company shall purchase the unexercised portion of the Warrant from the holder by paying
to the holder an amount of cash equal to the Black Scholes Value (as defined in the Warrant) of the remaining unexercised portion of
the New Warrant on the date of the consummation of such Fundamental Transaction.
Waivers and Amendments
The Series D Warrants may be modified or amended or
the provisions of the Series D Warrants waived with the Company’s and the holder’s written consent.
Placement
Agent Warrants
In
connection with the August 2023 Warrant Inducement, the Company granted warrants to the Placement Agent, or its designees, to purchase
up to an aggregate of 467,813 ordinary shares represented by ADSs, which Placement Agent Warrants shall be in the form of the Series
D Warrants, except that the Placement Agent Warrants shall have an exercise price of £0.4375 ($0.53
per ADS translated for illustration to U.S. dollars at the rate of £1.00 to $1.2077.
PLAN
OF DISTRIBUTION
Each
selling shareholder and any of their pledgees, assignees and successors-in-interest may, from time to time, sell any or all of their
Ordinary Shares represented by ADSs covered by this prospectus on the principal Trading Market or any other stock exchange, market or
trading facility on which the securities are traded or in private transactions. These sales may be at fixed or negotiated prices. A selling
shareholders may use any one or more of the following methods when selling securities:
|
● |
ordinary brokerage
transactions and transactions in which the broker-dealer solicits purchasers; |
|
● |
block trades in which the
broker-dealer will attempt to sell the securities as agent but may position and resell a portion of the block as principal to facilitate
the transaction; |
|
● |
purchases by a broker-dealer
as principal and resale by the broker-dealer for its account; |
|
● |
an exchange distribution
in accordance with the rules of the applicable exchange; |
|
● |
privately negotiated transactions; |
|
● |
settlement of short sales; |
|
● |
in transactions through
broker-dealers that agree with the selling shareholders to sell a specified number of such securities at a stipulated price per security; |
|
● |
through the writing or
settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
|
● |
a combination of any such
methods of sale; or |
|
● |
any other method permitted
pursuant to applicable law. |
The
selling shareholders may also sell securities under Rule 144 or any other exemption from registration under the Securities Act of 1933,
as amended (the “Securities Act”), if available, rather than under this prospectus.
Broker-dealers
engaged by the selling shareholders may arrange for other brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling shareholders (or, if any broker-dealer acts as agent for the purchaser of securities, from the purchaser)
in amounts to be negotiated, but, except as set forth in a supplement to this Prospectus, in the case of an agency transaction not in
excess of a customary brokerage commission in compliance with FINRA Rule 2121; and in the case of a principal transaction a markup or
markdown in compliance with FINRA Rule 2121.
In
connection with the sale of the securities or interests therein, the selling shareholders may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of the securities in the course of hedging the positions they
assume. The selling shareholders may also sell securities short and deliver these securities to close out their short positions, or loan
or pledge the securities to broker-dealers that in turn may sell these securities. The selling shareholders may also enter into option
or other transactions with broker-dealers or other financial institutions or create one or more derivative securities which require the
delivery to such broker-dealer or other financial institution of securities offered by this prospectus, which securities such broker-dealer
or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The
selling shareholders and any broker-dealers or agents that are involved in selling the securities may be deemed to be “underwriters”
within the meaning of the Securities Act in connection with such sales. In such event, any commissions received by such broker-dealers
or agents and any profit on the resale of the securities purchased by them may be deemed to be underwriting commissions or discounts
under the Securities Act. Each selling shareholders has informed the Company that it does not have any written or oral agreement or understanding,
directly or indirectly, with any person to distribute the securities.
The
Company is required to pay certain fees and expenses incurred by the Company incident to the registration of the securities. The Company
has agreed to indemnify the selling shareholders against certain losses, claims, damages and liabilities, including liabilities under
the Securities Act.
The resale securities will
be sold only through registered or licensed brokers or dealers if required under applicable state securities laws. In addition, in certain
states, the resale securities covered hereby may not be sold unless they have been registered or qualified for sale in the applicable
state or an exemption from the registration or qualification requirement is available and is complied with.
Under
applicable rules and regulations under the Exchange Act, any person engaged in the distribution of the resale securities may not simultaneously
engage in market making activities with respect to the ADSs for the applicable restricted period, as defined in Regulation M, prior to
the commencement of the distribution. In addition, the selling shareholders will be subject to applicable provisions of the Exchange
Act and the rules and regulations thereunder, including Regulation M, which may limit the timing of purchases and sales of the ADSs by
the selling shareholders or any other person. We will make copies of this prospectus available to the selling shareholders and have informed
them of the need to deliver a copy of this prospectus to each purchaser at or prior to the time of the sale (including by compliance
with Rule 172 under the Securities Act).
EXPENSES
OF THE OFFERING
Set
forth below is an itemization of the total anticipated expenses, excluding underwriting discounts, expected to be incurred in connection
with the offer and sale of the ADSs by us. With the exception of the SEC registration fee and the FINRA filing fee, all amounts are estimates,
in United States dollars:
SEC
registration fee |
|
$ |
535 |
|
Printer
fees and expenses |
|
$ |
- |
|
Legal
fees and expenses |
|
$ |
25,000 |
|
Accounting
fees and expenses |
|
$ |
30,000 |
|
Miscellaneous |
|
$ |
2,500 |
|
Total |
|
$ |
58,035 |
|
LEGAL
MATTERS
We
are being represented by Sheppard, Mullin, Richter & Hampton LLP, New York, New York with respect to certain legal matters of United
States federal securities and New York state law. We are being represented by Addleshaw Goddard LLP, Glasgow, Scotland with respect to
certain legal matters of the law of Scotland and other applicable law of the United Kingdom and as to certain patent law matters by Murgitroyd
& Company Limited. The validity of the ordinary shares offered in this offering and legal matters as to the law of Scotland were
passed upon for us by Addleshaw Goddard LLP, Glasgow, Scotland.
EXPERTS
The
consolidated financial statements of TC BioPharm (Holdings) plc incorporated by reference in TC BioPharm (Holdings) plc’s Annual
Report (Form 20-F) for the year ended December 31, 2022, have been audited by Marcum LLP, independent registered public accounting firm,
as set forth in their report thereon, (which contains an explanatory paragraph describing conditions that raise substantial doubt about
the Company’s ability to continue as a going concern as described in Note 1 to the consolidated financial statements) included
therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance
upon such report given on the authority of such firm as experts in accounting and auditing.
The
registered business address of Marcum LLP is 730 3rd Avenue, 11th Floor, New York, NY 10017, United States of America.
On
November 11, 2022, the Company appointed Marcum LLP (“Marcum”) as the Company’s independent registered public accounting
firm for the year ending December 31, 2022. Marcum succeeds Ernst & Young LLP who tendered their resignation on October 20, 2022.
The
consolidated financial statements of TC BioPharm (Holdings) plc incorporated by reference in TC BioPharm (Holdings) plc’s Annual
Report (Form 20-F) for the year ended December 31, 2021 and for the fiscal years ended December 31, 2021 and 2020, have been audited
by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, (which contains an explanatory
paragraph describing conditions that raise substantial doubt about the Company’s ability to continue as a going concern as described
in Note 1 to the consolidated financial statements) included therein, and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting
and auditing.
The
registered business address of Ernst & Young LLP is 144 Morrison Street, Edinburgh, EH3 8EX, United Kingdom.
WHERE
YOU CAN FIND MORE INFORMATION
We
have filed with the SEC a registration statement on Form F-1 under the Securities Act relating to this offering. This prospectus does
not contain all of the information contained in the registration statement. The rules and regulations of the SEC allow us to omit certain
information from this prospectus that is included in the registration statement. Statements made in this prospectus concerning the contents
of any contract, agreement or other document are summaries of all material information about the documents summarized, but are not complete
descriptions of all terms of these documents. If we filed any of these documents as an exhibit to the registration statement, you may
read the document itself for a complete description of its terms.
You
may read and copy the registration statement, including the related exhibits and schedules, and any document we file with the SEC without
charge at the SEC’s public reference room at 100 F Street, N.E., Room 1580, Washington, DC 20549. You may also obtain copies of
the documents at prescribed rates by writing to the Public Reference Section of the SEC at 100 F Street, N.E., Room 1580, Washington,
DC 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. The SEC also maintains an Internet
website that contains reports and other information regarding issuers that file electronically with the SEC. Our filings with the SEC
are also available to the public through the SEC’s website at http://www.sec.gov.
We
are subject to the information reporting requirements of the Exchange Act that are applicable to foreign private issuers, and under those
requirements are filing reports with the SEC. Those other reports or other information may be inspected without charge at the locations
described above. As a foreign private issuer, we are exempt from the rules under the Exchange Act related to the furnishing and content
of proxy statements, and our officers, directors and principal shareholders are exempt from the reporting and short-swing profit recovery
provisions contained in Section 16 of the Exchange Act. In addition, we are not required under the Exchange Act to file annual, quarterly
and current reports and financial statements with the SEC as frequently or as promptly as U.S. registrants whose securities are registered
under the Exchange Act. However, we are required to file with the SEC, within 120 days after the end of each fiscal year, or such applicable
time as required by the SEC, an annual report on Form 20-F containing financial statements audited by an independent registered public
accounting firm, and will furnish to the SEC, on Form 6-K, unaudited interim financial information.
We
maintain a corporate website at https://tcbiopharm.com/. Information contained on, or that can be accessed through, our website does
not constitute a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
We will post on our website any materials required to be so posted on such website under applicable corporate or securities laws and
regulations, including, posting any XBRL interactive financial data required to be filed with the SEC and any notices of general meetings
of our shareholders.
INFORMATION
INCORPORATED BY REFERENCE
The
rules of the SEC allow us to incorporate information into this prospectus by reference. The information incorporated by reference is
considered to be a part of this prospectus. This prospectus incorporates by reference the documents listed below (including any exhibits,
except where otherwise noted):
|
● |
our Annual Report on Form 20-F for the fiscal year ended December 31, 2022 filed on May 1, 2023; and |
|
● |
our Reports of Foreign
Private Issuer on Form 6-K filed with the SEC on January 11, 2023, January 19, 2023, March 30, 2023, June 7, 2023, June 27, 2023,
June 29, 2023, July 10, 2023, July 24, 2023, July 31, 2023, August 22, 2023 and August 31, 2023; |
|
● |
the description of our
securities contained in our registration statement on Form 8-A (File No. 001-41231) filed with the SEC on January 14, 2022, including
all amendments and reports filed for the purpose of updating such description. |
Any
statement made in a document incorporated by reference into this prospectus will be deemed to be modified or superseded for purposes
of this prospectus to the extent that a statement contained in this prospectus modifies or supersedes that statement. Any statement so
modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You
can obtain any of the filings incorporated by reference into this prospectus through us or from the SEC through the SEC’s website
at http://www.sec.gov. We will provide, without charge, to each person, including any beneficial owner, to whom a copy of this prospectus
is delivered, upon written or oral request of such person, a copy of any or all of the reports and documents referred to above which
have been or may be incorporated by reference into this prospectus. You should direct requests for those documents to:
TC
BioPharm (Holdings) plc
Maxim
1, 2 Parklands Way
Holytown,
Motherwell, ML1 4WR
Scotland,
United Kingdom
+44
(0) 141 433 7557
We
maintain an internet site at http://www.tcbiopharm.com. Our website and the information contained on or connected to it shall not be
deemed to be incorporated into this prospectus or the registration statement of which it forms a part.
UP
TO 12,942,813
AMERICAN
DEPOSITARY SHARES
REPRESENTING
12,942,813 ORDINARY SHARES
TC
BIOPHARM (HOLDINGS) PLC
PROSPECTUS
, 2023
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
6. Indemnification of Directors and Officers
Scottish
law does not limit the extent to which a company’s articles of association may provide indemnification of officers and directors,
except to the extent that it may be held by the Scottish and United Kingdom courts to be contrary to public policy, such as providing
indemnification against civil fraud or the consequences of committing a crime.
Our
Memorandum and Articles of Association provide that, to the maximum extent permitted by law, every current and former director and officer
(excluding an auditor) is entitled to be indemnified out of our assets against any liability, action, proceeding, claim, demand, costs,
damages or expenses, including legal expenses, which such indemnified person may incur in that capacity unless such liability arose as
a result of the actual fraud or willful default.
A
company formed under the laws of Scotland may also purchase insurance for directors and certain other officers against liability incurred
as a result of any negligence, default, breach of duty or breach of trust in relation to the company. We expect to maintain director’s
and officer’s liability insurance covering our directors and officers with respect to general civil liability, including liabilities
under the Securities Act of 1933, as amended (or the “Securities Act”), which he or she may incur in his or her capacity
as such. We have entered into a deed of indemnity with each of our directors and members of our senior management, each of which provides
the office holder with indemnification permitted under applicable law and to the extent that these liabilities are not covered by directors’
and officers’ insurance.
Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us
under the foregoing provisions, we have been informed that in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is therefore unenforceable.
Item
7. Recent Sales of Unregistered Securities
Set
forth below is information regarding share capital issued by TC BioPharm (Holdings) plc and TC BioPharm Limited (prior to completing
a corporate reorganization) since January 1, 2018. Some of the transactions described below involved directors, officers and 5% shareholders
and are more fully described under the section titled “Related Party Transactions”.
|
● |
On December 17, 2018, the
Company issued an aggregate of 3,499 ordinary shares to 19 accredited investors and insiders at a purchase price of £178.48
per share for aggregate consideration totaling £624,500 in respect of satisfying a convertible loan note. |
|
|
|
|
● |
In November 2019, the Company
issued an aggregate of 14,688 A ordinary shares to 25 accredited investors and insiders at a purchase price of £215.00 per
share for aggregate cash consideration totaling £3,157,877. |
|
|
|
|
● |
From December 2019 until
July 2020, the Company issued an aggregate of 2,338 A ordinary shares to 8 accredited investors and insiders at a purchase price
of £215.00 per share for aggregate cash consideration totaling £499,187. |
|
|
|
|
● |
On August 25, 2020, the
Company issued an aggregate of 15,891 A ordinary shares to 14 accredited investors and insiders at a purchase price of £215.00
per share for aggregate cash consideration totaling £3,416,522. |
|
|
|
|
● |
On January 18, 2021, the
Company issued an aggregate of 27 A ordinary shares to one accredited investor and insider at a purchase price of £215.00 per
share for aggregate cash consideration totaling £5,719. |
|
|
|
|
● |
On January 19, 2021, the
Company issued an aggregate of 930 A ordinary shares to one accredited investor and insider at a purchase price of £215.00
per share for aggregate cash consideration totaling £199,993. |
|
● |
On April 30, 2021, the
Company issued an aggregate of 465 A ordinary shares to one accredited investor and insider at a purchase price of £215 per
share for aggregate consideration totaling £100,018. |
|
|
|
|
● |
On June 16, 2021, the Company
issued an aggregate of 369 A ordinary shares to one accredited investor and insider at a purchase price of £215.00 per share
for aggregate consideration totaling £79,378. |
From
April 2021 to January 28, 2022, the Company issued Convertible Loan Notes with a face value amount of $17.7 million. The loan note was
issued with a 50% discount. Upon listing, 50% of the face value of the outstanding Convertible Loan Notes (including interest accrued
to date), and any further balance as elected by the noteholders, will convert into ADSs and Warrants at a conversion price for a unit
comprised of one ADS and 1.25 Warrants, which is the lower of (a) the price per share calculated on a fully diluted basis (based on the
number of shares in issue and vested share options immediately prior to the IPO being approved by the shareholders) on an assumed entity
valuation of $120,000,000 and (b) the listing price. The remaining balance of the loan notes are repayable or convertible (at the same
value) at the loan note holders’ option in two equal tranches at 90 days and 180 days after the listing date. In the event of an
act of default (including if the Company does not list despite its and its bankers’ efforts before February 15, 2022) the outstanding
notes become repayable at their face value.
Immediately
prior to completion of the Initial Public Offering, TC BioPharm (Holdings) plc re-organized its share capital whereby all of the outstanding
series A ordinary shares were re-designated as ordinary shares of TC BioPharm (Holdings) plc on a one for one basis. Immediately prior
to the completion of the offering, a further 24,693 ordinary shares were issued, under the terms of our Articles of Association to certain
shareholders who, prior to the IPO, owned A ordinary shares which carried the right, to subscribe at nominal value for a certain number
of additional shares, calculated by reference to the pre-money valuation of the IPO.
On
February 10, 2022, the Company completed an IPO on Nasdaq, issuing 82,353 American Depositary Shares (“ADSs”) representing
82,353 ordinary shares with nominal value of £41,176 and warrants to buy 189,412 ADSs at a combined issue price of $212.50 for
proceeds before expenses of $17.5 million.
At
the date of the IPO loan notes totaling $13,447,012, converted into 63,280 ADSs and 125,560 Warrants at a combined issue price of $212.50.
On
June 8, 2022, the Company completed a secondary public offering, issuing 230,000 ADSs representing 230,000 ordinary shares for aggregate
gross proceeds before expenses of $4.6 million.
On
August 9, 2022, TC BioPharm (Holdings) plc issued 3,676 American Depositary Shares (“ADSs”) representing 3,676 ordinary shares
and warrants to buy 7,352 ADSs on conversion of loan notes totaling $0.8 million.
On
November 15, 2022, TC BioPharm (Holdings) plc issued 21 Ordinary shares for a consideration of $7.565 (£6.362) per share.
On
November 24, 2022, TC BioPharm (Holdings) plc issued 3 Ordinary shares for a consideration of $6.51 per share.
On
November 27, 2022, the Company entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited
investors (the “Investors”) as purchasers. Pursuant to the Purchase Agreement, the Company sold, and the Investors purchased
in a private placement an aggregate of 155,000 American Depositary Shares (the “ADSs”), pre-funded warrants to purchase up
to 1,315,000 ADS (the “Pre-Funded Warrants”), series A purchase warrants to purchase up to 1,470,000 ADSs (the “Series
A Ordinary Warrants”) and series B purchase warrants to purchase up to 1,470,000 ADSs (the “Series B Ordinary Warrants”
and together with the Series A Ordinary Warrants, the “Ordinary Warrants”) for aggregate gross proceeds of $7,350,000, excluding
any proceeds that may be received upon exercise of the Ordinary Warrants. The purchase price for each ADS and associated Ordinary Warrants
is $5.00 and the purchase price per each Pre-Funded Warrant and associated Ordinary Warrants is $4.999. The offering closed on November
30, 2022.The Series A Ordinary Warrants will be immediately exercisable, will expire five and one-half (5.5) years from the date of issuance
and have an exercise price of $5.00 per ADS, subject to adjustment as set forth therein. The Series B Ordinary Warrants will be immediately
exercisable, will expire thirty (30) months from the date of issuance and have an exercise price of $5.00 per ADS, subject to adjustment
as set forth therein. The placement agent for such offering received warrants to purchase up to 110,250 ADSs (the “Placement Agent
Warrants”) on substantially the same terms as the Series A Ordinary Warrants except that the Placement Agent Warrants have an exercise
price equal to 125% of the offering price, or $6.25 per ADS.
On
March 27, 2023, the Company , entered into a Securities Purchase Agreement (the “Purchase Agreement”) with certain accredited
investors (the “Investors”), pursuant to which the Company agreed to issue and sell an aggregate of 215,000 ADSs, pre-funded
warrants to purchase up to 3,222,500 ADS (the “March 2023 Pre-Funded Warrants”), and series C purchase warrants to purchase
up to 3,437,500 ADSs (the “Ordinary Warrants” and together with the March 2023 Pre-Funded Warrants and the ADSs, the “Securities”).
The purchase price for each ADS and associated Ordinary Warrants was $1.60 and the purchase price per each March 2023 Pre-Funded Warrant
and associated Ordinary Warrants was $1.599. The Ordinary Warrants were immediately exercisable, expire five (5) years from the date
of issuance and have an exercise price of $1.75 per ADS. The March 2023 Pre-Funded Warrants may be exercised at any time until all of
the Pre-Funded Warrants are exercised in full at an exercise price of $0.001 per ADS. The total net proceeds from this offering were
approximately $4.6 million, after deducting estimated offering expenses of approximately $0.9 million.
In
connection with the March 2023 offering, the Company agreed that certain existing warrants to purchase up to an aggregate of 2,800,000
ADSs of the Company that were previously issued on November 30, 2022, at an exercise price of $5.00 per ADS and expiration dates of May
30, 2025 and May 30, 2028, were amended effective upon the closing of the March 2023 offering so that the amended warrants will have
a reduced exercise price of $1.75 per ADS.
In
the period from January 1, 2023 to September 28, 2023, the holders of prefunded warrants, exercised prefunded warrants to purchase 4,537,500
ADSs.
On
April 3, 2023, the Company agreed with the loan note holder to extend the Redemption Date (as defined in the Loan Note) to January 15,
2024 and amend the Conversion Price (as defined in the Loan Note) of the outstanding loan notes to be the lesser of $1.00 or the lowest
closing price of the Ordinary Shares during the ten (10) day period prior to the date the Noteholder delivers a notice of conversion
to the Company, not to be lower than $0.20. In other respects the terms of the Loan Note remain unaltered. In addition, in consideration
of amending the Loan Note, the Company agreed to issue a 5-year warrant to the loan note holder to subscribe for 200,000 Ordinary Shares
in the share capital of the Company at an exercise price of $5.00.
In
the period from April 3, 2023 to September 28, 2023, the holders of Loan Notes, converted notes with a value of $813,302 into 1,590,130
ADSs.
On
August 30, 2023, we entered into an inducement offer letter agreement (the “Inducement Letter”) with certain holders (the
“Holders”) of existing Series A, B and C warrants (the “Existing Warrants”) to purchase ordinary shares represented
by American depositary shares (the “ADSs”) of the Company. The Existing Warrants were issued on November 30, 2022 and March
30, 2023, as amended on July 10, 2023, and have an exercise price of £0.35 per ADS.
Pursuant
to the Inducement Letter, the Holders agreed to exercise for cash their Existing Warrants to purchase an aggregate of 6,237,500 ADSs
of the Company in consideration for the Company’s agreement to issue new Series D warrants to purchase ordinary shares represented
by ADSs, to purchase up to 12,475,000 of the Company’s ordinary shares represented by ADSs. The Company received aggregate
gross proceeds of approximately £2.2 million (approximately $2.8m) from the exercise of the Existing Warrants by the Holders, before
deducting placement agent fees payable by the Company. As at September 29, 2023, 805,000 ADSs have been issued in connection with the
Inducement Letter.
The
offers, sales and issuances of the securities and loan notes described above were exempt from registration either (i) under Section 4(a)(2)
of the Securities Act in that the transactions did not involve any public offering, (ii) under Rule 701 promulgated under the Securities
Act in that the transactions were under compensatory benefit plans and contracts relating to compensation or (iii) under Regulation S
promulgated under the Securities Act in that offers, sales and issuances were not made to persons in the United States and no directed
selling efforts were made in the United States.
Item
8. Exhibits and Financial Statement Schedules
Exhibit |
|
Description |
|
Schedule/
Form |
|
File
Number |
|
Exhibit |
|
File
Date |
2.1 |
|
Deposit Agreement – Bank of New York Mellon for American Depositary Shares |
|
F-1 |
|
333-260492 |
|
4.1 |
|
03/08/2022 |
2.2 |
|
Form of American Depositary Share (included in Exhibit 2.1) |
|
F-1 |
|
333-260492 |
|
4.2 |
|
03/08/2022 |
2.3 |
|
Warrant Agent Agreement with Computershare Inc. |
|
F-1 |
|
333-260492 |
|
4.4 |
|
03/08/2022 |
2.4 |
|
Form of Warrant Certificate (included in Exhibit 2.3) |
|
F-1 |
|
333-260492 |
|
4.5 |
|
03/08/2022 |
2.5 |
|
Form of Ordinary Share Certificate |
|
F-1 |
|
333-260492 |
|
4.6 |
|
03/08/2022 |
3.1 |
|
Articles of Association of TC BioPharm (Holdings) plc |
|
F-1 |
|
333-260492 |
|
3.2 |
|
03/08/2022 |
4.1 |
|
Form of Representative Warrant |
|
F-1 |
|
333-260492 |
|
4.3 |
|
03/08/2022 |
4.2 |
|
Form of 2014 Share Option Scheme of Registrant |
|
F-1 |
|
333-260492 |
|
10.1 |
|
03/08/2022 |
4.3 |
|
Form of 2021 Share Option Scheme (including sub-plan for U.S. based persons) of Registrant |
|
F-1 |
|
333-260492 |
|
10.2 |
|
03/08/2022 |
4.4 |
|
Form of 2021 Company Share Option Plan (CSOP) of Registrant |
|
F-1 |
|
333-260492 |
|
10.3 |
|
03/08/2022 |
4.5 |
|
Convertible Loan Note, up to $20,000,000 in principal amount |
|
F-1 |
|
333-260492 |
|
10.6 |
|
03/08/2022 |
4.6 |
|
Form of Lock Up Agreement of Pre-IPO Smaller Shareholders |
|
F-1 |
|
333-260492 |
|
10.8 |
|
03/08/2022 |
4.7 |
|
Form of Lock Up Agreement of Pre-IPO Management and Larger Shareholders |
|
F-1 |
|
333-260492 |
|
10.9 |
|
03/08/2022 |
4.8 |
|
Form of Lock Up Agreement of Holders of Convertible Loan Notes |
|
F-1 |
|
333-260492 |
|
10.10 |
|
03/08/2022 |
4.9 |
|
Form of Deed of Indemnity for directors and officer |
|
20-F |
|
001-41231 |
|
4.10 |
|
05/13/2022 |
4,10 |
|
Description of Securities of Registrant |
|
20-F |
|
001-41231 |
|
4.11 |
|
05/13/2022 |
4.11 |
|
Code of Ethics of the Registrant |
|
F-1 |
|
333-260492 |
|
11.1 |
|
03/08/2022 |
4.12 |
|
Form of Pre-Funded Warrant |
|
6-K |
|
001-41231 |
|
10.1 |
|
11/30/2022 |
4.13 |
|
Form of Series A and Series B Ordinary Warrant |
|
6-K |
|
001-41231 |
|
10.2 |
|
11/30/2022 |
4.14 |
|
Form of Placement Agent Warrant |
|
6-K |
|
001-41231 |
|
10.3 |
|
11/30/2022 |
4.15 |
|
Form of Pre-Funded Warrant |
|
6-K |
|
001-41231 |
|
10.1 |
|
03/30/2023 |
4.16 |
|
Form of Placement Agent Warrant |
|
6-K |
|
001-41231 |
|
10.3 |
|
03/30/2023 |
4.17 |
|
Form of Series C Ordinary Warrant |
|
6-K |
|
001-41231 |
|
10.2 |
|
03/30/2023 |
4.18 |
|
Form of Series D Ordinary Warrant |
|
6-K |
|
001-41231 |
|
4.1 |
|
08/31/2023 |
4.19 |
|
Form of Placement Agent Warrant issued in September 2023 |
|
|
|
|
|
|
|
|
5.1 |
|
Opinion of Addleshaw Goddard LLP |
|
|
|
|
|
|
|
|
5.2 |
|
Opinion of Sheppard, Mullin, Richter & Hampton LLP ⸶ |
|
|
|
|
|
|
|
|
10.1 |
|
Form of Securities Purchase Agreement for Nov 2022 Private Placement |
|
6-K |
|
001-41231 |
|
10.4 |
|
11/30/2022 |
10.2 |
|
Form of Registration Rights Agreement for Nov 2022 Private Placement |
|
6-K |
|
001-41231 |
|
10.5 |
|
03/30/2023 |
10.3 |
|
Form of Securities Purchase Agreement |
|
6-K |
|
001-41231 |
|
10.4 |
|
03/30/2023 |
10.4 |
|
Warrant Amendment Agreement, dated March 27, 2023 |
|
6-K |
|
001-41231 |
|
10.5 |
|
03/30/2023 |
10.5 |
|
Warrant Amendment Agreement, dated July 10, 2023 |
|
6-K |
|
001-41231 |
|
10.1 |
|
07/24/2023 |
10.6 |
|
Inducement Letter, dated August 30, 2023 |
|
6-K |
|
001-41231 |
|
10.1 |
|
08/31/2023 |
16.1 |
|
Letter of Ernst & Young LLP, dated November 18, 2022 |
|
6-K |
|
001-41231 |
|
16.1 |
|
11/18/2022 |
21.1 |
|
List of Subsidiaries of Registrant |
|
F-1 |
|
333-260492 |
|
21.1 |
|
03/08/2022 |
23.1 |
|
Consent of Marcum LLP, independent registered public accounting firm |
|
|
|
|
|
|
|
|
23.2 |
|
Consent of Ernst & Young LLP, independent registered public accounting firm |
|
|
|
|
|
|
|
|
23.3 |
|
Consent of Addleshaw Goddard LLP (included in Exhibit 5.1) |
|
|
|
|
|
|
|
|
23.4 |
|
Consent of Sheppard, Mullin, Richter & Hampton LLP (included in Exhibit 5.2) |
|
|
|
|
|
|
|
|
24.1 |
|
Power of Attorney (included as part of the signature page of original filed Registration Statement) |
|
|
|
|
|
|
|
|
107 |
|
Filing Fee Table |
|
|
|
|
|
|
|
|
Item
9. Undertakings
(A) |
The undersigned registrant
hereby undertakes: |
|
(1) |
To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
|
(i) |
To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended, or the Securities Act; |
|
|
|
|
(ii) |
To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or any decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price
set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
|
|
|
|
(iii) |
To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement; |
|
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the registration statement is
on Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934, as amended, or Exchange Act, that are incorporated by reference in the registration statement, or is contained in a form
of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
|
(2) |
That,
for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof. |
|
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(3) |
To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the
termination of the offering. |
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(4) |
To
file a post-effective amendment to the registration statement to include any financial statements required by Item 8.A of Form 20-F
at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required
by Section 10(a)(3) of the Exchange Act need not be furnished, provided that the registrant includes in the prospectus, by means
of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to
ensure that all other information in the prospectus is at least as current as the date of those financial statements. Notwithstanding
the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Exchange Act or Rule 3-19 of Regulation S-K if such financial statements
and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in this Form F-3. |
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(5) |
That,
for the purpose of determining liability under the Securities Act to any purchaser: |
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(i) |
Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and |
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(ii) |
Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities
in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is
at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities
in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration
statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior
to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part
of the registration statement or made in any such document immediately prior to such effective date. |
|
(6) |
That,
for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The
undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration
statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold
to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and
will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424; |
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(ii) |
Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by
the undersigned registrant; |
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(iii) |
The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(B) |
Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue. |
(C) |
The undersigned registrant
hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof. |
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies it has reasonable grounds to believe that it meets all of
the requirements for filing this amended registration statement on Form F-1 with the Securities and Exchange Commission and has duly
caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Glasgow, Scotland, United
Kingdom, on September 29, 2023.
|
TC BIOPHARM (HOLDINGS) PLC |
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|
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By: |
/s/
Bryan Kobel |
|
Name: |
Bryan
Kobel |
|
Title: |
Chief Executive Officer |
POWER
OF ATTORNEY
Each
of the undersigned officers and directors of TC BioPharm (Holdings) PLC hereby constitutes and appoints Bryan Kobel and Martin Thorp,
and each of them any of whom may act without joinder of the other, the individual’s true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for the person and in his or her name, place and stead, in any and all capacities,
to sign this registration statement of TC BioPharm (Holdings) PLC on Form F-1 or Form F-3, and any other registration statement
relating to the same offering (including any registration statement, or amendment thereto, that is to become effective upon filing pursuant
to Rule 462(b) under the Securities Act of 1933, as amended), and any and all amendments thereto (including post-effective amendments
to the registration statement), and to file the same, with all exhibits thereto, and all other documents in connection therewith, with
the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes
as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them,
or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities
and on the dates indicated.
Signature |
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Title |
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Date |
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/s/
Bryan Kobel |
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Chief Executive Officer
and Director (Principal Executive Officer) |
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September 29, 2023 |
Bryan Kobel |
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/s/
Martin Thorp |
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Chief Financial Officer
and Director (Principal Financial and |
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September 29, 2023 |
Martin Thorp |
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Accounting Officer) |
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/s/ Dr
Mark Bonyhadi |
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Non-Executive Director |
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September 29, 2023 |
Dr Mark Bonyhadi |
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/s/ James
Culverwell |
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Non-Executive Director |
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September 29, 2023 |
James Culverwell |
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/s/ Arlene
Morris |
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Chair of the Board and Non-Executive Director |
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September 29, 2023 |
Arlene Morris |
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/s/ Edward
Niemczyk |
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Non-Executive Director |
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September 29, 2023 |
Edward Niemczyk |
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SIGNATURE
OF AUTHORIZED U.S. REPRESENTATIVE OF THE REGISTRANT
Pursuant
to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of the registrant has signed
this registration statement or amendment thereto on September 29, 2023.
|
TC BioPharm
(North America) Inc. |
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By: |
/s/
Bryan Kobel |
|
Name: |
Bryan Kobel |
|
Title: |
Chief Executive Officer
and Director |
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Authorized Representative
in the United States |
Exhibit
4.19
NEITHER
THIS SECURITY NOR THE SECURITIES FOR WHICH THIS SECURITY IS EXERCISABLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS. THIS SECURITY AND THE SECURITIES ISSUABLE UPON EXERCISE
OF THIS SECURITY MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES.
PLACEMENT
AGENT WARRANT TO PURCHASE ORDINARY SHARES
REPRESENTED
BY AMERICAN DEPOSITARY SHARES
TC
BIOPHARM (HOLDINGS) PLC
Warrant
ADSs: ______ |
Initial
Exercise Date: September 5, 2023 |
THIS
PLACEMENT AGENT WARRANT TO PURCHASE ORDINARY SHARES REPRESENTED BY AMERICAN DEPOSITARY SHARES (the “Warrant”) certifies
that, for value received, _____________ or its assigns (the “Holder”) is entitled, upon the terms and subject to the
limitations on exercise and the conditions hereinafter set forth, at any time on or after the date set forth above (the “Initial
Exercise Date”) and on or prior to 5:00 p.m. (New York City time) on March 5, 2029 (the “Termination Date”)
but not thereafter, to subscribe for and purchase from TC BIOPHARM (HOLDINGS) PLC, a public limited company incorporated in Scotland
pursuant to the Companies Act 2006, as amended with company number SC713098 (the “Company”), up to ______ Ordinary
Shares, par value £0.0001 per share (the “Warrant Shares”), represented by _____ ADSs (the ADSs issuable upon
exercise of the Warrant, the “Warrant ADSs”), as subject to adjustment hereunder. The purchase price of one Warrant
ADS under this Warrant shall be equal to the Exercise Price, as defined in Section 2(b). This Warrant is issued pursuant to that certain
Engagemnet Agreement, by and between the Company and H.C. Wainwright & Co., LLC, dated as of November 1, 2022, as amended.
Section
1. Definitions. In addition to the terms defined elsewhere in this Warrant, the following terms have the meanings indicated
in this Section 1:
“Affiliate”
means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control
with a Person, as such terms are used in and construed under Rule 405 under the Securities Act.
“ADS(s)”
means American Depositary Shares issued pursuant to the Deposit Agreement (as defined below), each representing one (1) Ordinary Share.
“Bid
Price” means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs are then
listed or quoted on a Trading Market, the bid price of the ADSs for the time in question (or the nearest preceding date) on the Trading
Market on which the ADSs are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City
time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the ADSs
for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the ADSs are not then listed or quoted for trading
on OTCQB or OTCQX and if prices for the ADSs are then reported on the Pink Open Market (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent bid price per ADS so reported, or (d) in all other cases, the fair market value
of an ADS as determined by an independent appraiser selected in good faith by the Holders of a majority in interest of the Warrants then
outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Board
of Directors” means the board of directors of the Company.
“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized
or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized
or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee”
or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority
so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally
are open for use by customers on such day.
“Commission”
means the United States Securities and Exchange Commission.
“Depositary”
means The Bank of New York Mellon and any successor depositary of the Company, as Depositary under the Deposit Agreement.
“Deposit
Agreement” means the Deposit Agreement, dated as of February 10, 2022, among the Company, The Bank of New York Mellon as Depositary
and the owners and holders of ADSs from time time, as such agreement may be amended or supplemented.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Letter
Agreement” means that certain letter agreement between the initial Holder hereof and the Company, dated as of August 30, 2023,
pursuant to which such initial Holder agreed to exercise one or more warrants to purchase Ordinary Shares represented by ADSs and the
Company agreed to issue to the initial Holder this Warrant.
“Person”
means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability
company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.
“Rule
144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted
from time to time, or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect
as such Rule.
“Ordinary
Share Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to acquire
at any time Ordinary Shares or ADSs, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive, Ordinary
Shares or ADSs.
“Ordinary
Shares” means the ordinary shares of the Company, par value £0.0001 per share, and any other class of securities into
which such securities may hereafter be reclassified or changed.
“Securities
Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary”
means any subsidiary of the Company and shall, where applicable, also include any direct or indirect subsidiary of the Company formed
or acquired after the date hereof.
“Trading
Day” means a day on which the ADSs are traded on a Trading Market.
“Trading
Market” means any of the following markets or exchanges on which the ADSs or Ordinary Shares are listed or quoted for trading
on the date in question: the NYSE American, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market or the
New York Stock Exchange (or any successors to any of the foregoing).
“VWAP”
means, for any date, the price determined by the first of the following clauses that applies: (a) if the ADSs are then listed or quoted
on a Trading Market, the daily volume weighted average price of the ADSs for such date (or the nearest preceding date) on the Trading
Market on which the ADSs are then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day from 9:30 a.m. (New York City
time) to 4:02 p.m. (New York City time)), (b) if OTCQB or OTCQX is not a Trading Market, the volume weighted average price of the ADSs
for such date (or the nearest preceding date) on OTCQB or OTCQX as applicable, (c) if the ADSs are not then listed or quoted for trading
on OTCQB or OTCQX and if prices for the ADSs are then reported on the Pink Open Market (or a similar organization or agency succeeding
to its functions of reporting prices), the most recent bid price per ADS so reported, or (d) in all other cases, the fair market value
of an ADS as determined by an independent appraiser selected in good faith by the holders of a majority in interest of the Warrants then
outstanding and reasonably acceptable to the Company, the fees and expenses of which shall be paid by the Company.
“Warrants”
means this Warrant and other ADS purchase warrants issued by the Company pursuant to the Letter Agreement.
Section
2. Exercise.
a)
Exercise of Warrant. Exercise of the purchase rights represented by this Warrant may be made, in whole or in part, at any time
or times on or after the Initial Exercise Date and on or before the Termination Date by delivery to the Company of a duly executed PDF
copy submitted by e-mail (or e-mail attachment) of the Notice of Exercise in the form annexed hereto (the “Notice of Exercise”).
Within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period (as defined
in Section 2(d)(i) herein) following the date of exercise as aforesaid, the Holder shall deliver to the Company the aggregate Exercise
Price for the Warrant ADSs thereby purchased and specified in the applicable Notice of Exercise by wire transfer or cashier’s check
drawn on a United States bank unless the cashless exercise procedure specified in Section 2(c) below is specified in the applicable Notice
of Exercise. No ink-original Notice of Exercise shall be required, nor shall any medallion guarantee (or other type of guarantee or notarization)
of any Notice of Exercise be required. Notwithstanding anything herein to the contrary, the Holder shall not be required to physically
surrender this Warrant to the Company until the Holder has purchased all of the Warrant ADSs available hereunder and the Warrant has
been exercised in full, in which case, the Holder shall surrender this Warrant to the Company for cancellation as soon as reasonably
practicable of the date on which the final Notice of Exercise is delivered to the Company. Partial exercises of this Warrant resulting
in purchases of a portion of the total number of Warrant ADSs available hereunder shall have the effect of lowering the outstanding number
of Warrant ADSs purchasable hereunder in an amount equal to the applicable number of Warrant ADSs purchased. The Holder and the Company
shall maintain records showing the number of Warrant ADSs purchased and the date of such purchases. The Company shall deliver any objection
to any Notice of Exercise within one (1) Business Day of receipt of such notice. The Holder and any assignee, by acceptance of this
Warrant, acknowledge and agree that, by reason of the provisions of this paragraph, following the purchase of a portion of the Warrant
ADSs hereunder, the number of Warrant ADSs available for purchase hereunder at any given time may be less than the amount stated on the
face hereof.
b)
Exercise Price. The exercise price per ADS under this Warrant shall be £0.4375, subject to adjustment hereunder (the
“Exercise Price”).
c)
Cashless Exercise. If at the time of exercise hereof there is no effective registration statement registering, or the prospectus
contained therein is not available for the resale of the Warrant ADSs by the Holder, then this Warrant may also be exercised, in whole
or in part, at such time by means of a “cashless exercise” in which the Holder shall be entitled to receive a number of Warrant
ADSs equal to the quotient obtained by dividing [(A-B) (X)] by (A), where:
|
(A)
= |
as
applicable: (i) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise if such Notice of
Exercise is (1) both executed and delivered pursuant to Section 2(a) hereof on a day that is not a Trading Day or (2) both executed
and delivered pursuant to Section 2(a) hereof on a Trading Day prior to the opening of “regular trading hours” (as defined
in Rule 600(b) of Regulation NMS promulgated under the federal securities laws) on such Trading Day, (ii) at the option of the Holder,
either (y) the VWAP on the Trading Day immediately preceding the date of the applicable Notice of Exercise or (z) the Bid Price of
the ADSs on the principal Trading Market as reported by Bloomberg L.P. (“Bloomberg”) as of the time of the Holder’s
execution of the applicable Notice of Exercise if such Notice of Exercise is executed during “regular trading hours”
on a Trading Day and is delivered within two (2) hours thereafter (including until two (2) hours after the close of “regular
trading hours” on a Trading Day) pursuant to Section 2(a) hereof or (iii) the VWAP on the date of the applicable Notice of
Exercise if the date of such Notice of Exercise is a Trading Day and such Notice of Exercise is both executed and delivered pursuant
to Section 2(a) hereof after the close of “regular trading hours” on such Trading Day; provided, however, that the VWAP
or Bid Price, as applicable, used in accordance with this Section, shall be converted into British pounds using the U.S. Dollar exchange
rate as reported by Bloomberg L.P. on the relevant date of calculation; |
|
|
|
|
(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
|
|
|
|
(X)
= |
the
number of Warrant ADSs that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such
exercise were by means of a cash exercise rather than a cashless exercise. |
If
Warrant ADSs are issued in such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the
Securities Act, the holding period of the Warrant ADSs being issued may be tacked on to the holding period of this Warrant. The Company
agrees not to take any position contrary to this Section 2(c).
d)
Mechanics of Exercise.
i.
Delivery of Warrant ADSs Upon Exercise. The Company shall deposit the Warrant Shares subject to such exercise with The Bank of
New York Mellon, the Depositary for the ADSs (the “Depositary”) and instruct the Depositary to transmit the Warrant
ADSs purchased hereunder by crediting the Holder’s or its designee’s balance account with The Depository Trust Company through
its Deposit/Withdrawal At Custodian system (“DWAC”) if the Depositary is then a participant in such system and either
(A) there is an effective registration statement with a current prospectus registering for resale of the Warrant Shares represented by
the Warrant ADSs by the Holder or (B) the Warrant Shares represented by the Warrant ADSs are eligible for resale by the Holder without
volume or manner-of-sale limitations pursuant to Rule 144 (assuming cashless exercise of the Warrants), and otherwise by electronic (registered
in book-entry format with the Depositary) or physical delivery to the address specified by the Holder in the Notice of Exercise, in each
case by the date that is the later of (y) the earliest of (i) two (2) Trading Days after the delivery to the Company of the Notice of
Exercise and (ii) the number of Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Notice
of Exercise and (z) one (1) Trading Day after delivery of the aggregate Exercise Price to the Company (such date, the “Warrant
ADS Delivery Date”). Upon delivery of the Notice of Exercise, the Holder shall be deemed for all corporate purposes to have
become the holder of record of the Warrant ADSs with respect to which this Warrant has been exercised, irrespective of the date of delivery
of the Warrant ADSs, provided that payment of the aggregate Exercise Price (other than in the case of a cashless exercise) is received
within the earlier of (i) two (2) Trading Days and (ii) the number of Trading Days comprising the Standard Settlement Period following
delivery of the Notice of Exercise. If the Depository fails for any reason to deliver to the Holder the Warrant ADSs subject to a Notice
of Exercise by the Warrant ADS Delivery Date, the Company shall pay to the Holder, in cash, as liquidated damages and not as a penalty,
for each $1,000 of Warrant ADSs subject to such exercise (based on the VWAP of the ADSs on the date of the applicable Notice of Exercise),
$10 per Trading Day (increasing to $20 per Trading Day on the third Trading Day after the Warrant ADS Delivery Date) for each Trading
Day after such Warrant ADS Delivery Date until such Warrant ADSs are delivered or Holder rescinds such exercise. The Company agrees to
maintain a depositary (and, if applicable, a transfer agent) that is a participant in the FAST program so long as this Warrant remains
outstanding and exercisable. As used herein, “Standard Settlement Period” means the standard settlement period, expressed
in a number of Trading Days, on the Company’s primary Trading Market with respect to the ADSs as in effect on the date of delivery
of the Notice of Exercise.
ii.
Delivery of New Warrants Upon Exercise. If this Warrant shall have been exercised in part, the Company shall, at the request of
a Holder and upon surrender of this Warrant, at the time of delivery of the Warrant ADSs, deliver to the Holder a new Warrant evidencing
the rights of the Holder to purchase the unpurchased Warrant ADSs called for by this Warrant, which new Warrant shall in all other respects
be identical with this Warrant.
iii.
Rescission Rights. If the Company fails to cause the Depositary to transmit to the Holder the Warrant ADSs pursuant to Section
2(d)(i) by the Warrant ADS Delivery Date, then the Holder will have the right to rescind such exercise in respect of the untransmitted
Warrant ADSs (with the effect that the Holder’s right to acquire such Warrant ADSs pursuant to this Warrant shall be restored)
and the Company shall return to the Holder the aggregate Exercise Price paid to the Company for such Warrant ADSs.
iv.
Compensation for Buy-In on Failure to Timely Deliver Warrant ADSs Upon Exercise. In addition to any other rights available to
the Holder, if the Company fails to cause the Depositary to deliver to the Holder the Warrant ADSs in accordance with the provisions
of Section 2(d)(i) above pursuant to an exercise on or before the Warrant ADS Delivery Date, and if after such date the Holder is required
by its broker to purchase (in an open market transaction or otherwise) or the Holder’s brokerage firm otherwise purchases, ADSs
to deliver in satisfaction of a sale by the Holder of the Warrant ADSs which the Holder anticipated receiving upon such exercise (a “Buy-In”),
then the Company shall (A) pay in cash to the Holder the amount, if any, by which (x) the Holder’s total purchase price (including
brokerage commissions, if any) for the ADSs so purchased exceeds (y) the amount obtained by multiplying (1) the number of Warrant ADSs
that the Company failed to deliver to the Holder in connection with the exercise at issue by (2) the price at which the sell order giving
rise to such purchase obligation was executed, and (B) at the option of the Holder, either reinstate the portion of the Warrant in respect
of the equivalent number of Warrant ADSs for which such exercise was not honored and return any amount received by the Company in respect
of the Exercise Price for those Warrant ADSs (in which case such exercise shall be deemed rescinded) or deliver to the Holder the number
of ADSs that would have been issued had the Company timely complied with its exercise and delivery obligations hereunder. For example,
if the Holder purchases ADSs having a total purchase price of $11,000 to cover a Buy-In with respect to an attempted exercise of Warrants
with an aggregate sale price giving rise to such purchase obligation of $10,000, under clause (A) of the immediately preceding sentence
the Company shall be required to pay the Holder $1,000. The Holder shall provide the Company written notice indicating the amounts payable
to the Holder in respect of the Buy-In and, upon request of the Company, evidence of the amount of such loss. Nothing herein shall limit
a Holder’s right to pursue any other remedies available to it hereunder, at law or in equity including, without limitation, a decree
of specific performance and/or injunctive relief with respect to the Company’s failure to timely deliver ADSs upon exercise of
the Warrant as required pursuant to the terms hereof.
v.
No Fractional Shares or Warrant ADSs. No fractional Warrant Shares or Warrant ADSs shall be issued upon the exercise of this Warrant.
As to any fraction of an ADS which the Holder would otherwise be entitled to purchase upon such exercise, the Company shall, at its election,
either pay a cash adjustment in respect of such final fraction in an amount equal to such fraction multiplied by the Exercise Price or
round up to the next whole ADS; provided, however the fraction of an ADS shall not be rounded up to the next whole ADS if such rounding
results in the issue price being lower than the par value of the ADS.
vi.
Charges, Taxes and Expenses. Issuance of Warrant ADSs shall be made without charge to the Holder for any issue or transfer tax
or other incidental expense in respect of the issuance of such Warrant ADSs, all of which taxes and expenses shall be paid by the Company,
and such Warrant ADSs shall be issued in the name of the Holder or in such name or names as may be directed by the Holder; provided,
however, that, in the event that Warrant ADSs are to be issued in a name other than the name of the Holder, this Warrant when
surrendered for exercise shall be accompanied by the Assignment Form attached hereto duly executed by the Holder and the Company may
require, as a condition thereto, the payment of a sum sufficient to reimburse it for any transfer tax incidental thereto. The Company
shall pay all Depositary fees required for same-day processing of any Notice of Exercise and all fees to the Depository Trust Company
(or another established clearing corporation performing similar functions) required for same-day electronic issuance and delivery of
the Warrant ADSs. The Company shall pay all applicable fees and expenses of the Depositary in connection with the issuance of the Warrants
ADSs hereunder, and shall reimburse the Holder for any fees charged to the Holder by the Depositary in connection with the issuance or
holding or sale of the Warrant ADSs.
vii.
Closing of Books. The Company will not close its shareholder books or records in any manner which prevents the timely exercise
of this Warrant, pursuant to the terms hereof; provided, however, that the foregoing shall not be deemed or construed to limit any rights
of the Depositary under the terms and provisions of the deposit agreement among, inter alia, the Company and the Depositary.
e)
Holder’s Exercise Limitations. Notwithstanding anything to the contrary contained herein, the Company shall not effect any
exercise of this Warrant, and a Holder shall not have the right to exercise any portion of this Warrant, pursuant to Section 2 or otherwise,
to the extent that after giving effect to such issuance after exercise as set forth on the applicable Notice of Exercise, the Holder
(together with the Holder’s Affiliates, and any other Persons acting as a group together with the Holder or any of the Holder’s
Affiliates (such Persons, “Attribution Parties”)), would beneficially own in excess of the Beneficial Ownership Limitation
(as defined below). For purposes of the foregoing sentence, the number of Ordinary Shares beneficially owned by the Holder and its Affiliates
and Attribution Parties shall include the number of Ordinary Shares underlying such Warrant ADSs issuable upon exercise of this Warrant
with respect to which such determination is being made, but shall exclude the number of Ordinary Shares underlying Warrant ADSs which
would be issuable upon (i) exercise of the remaining, nonexercised portion of this Warrant beneficially owned by the Holder or any of
its Affiliates or Attribution Parties and (ii) exercise or conversion of the unexercised or nonconverted portion of any other securities
of the Company (including, without limitation, any other Ordinary Share Equivalents) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by the Holder or any of its Affiliates or Attribution Parties. Except
as set forth in the preceding sentence, for purposes of this Section 2(e), beneficial ownership shall be calculated in accordance with
Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder, it being acknowledged by the Holder that the
Company is not representing to the Holder that such calculation is in compliance with Section 13(d) of the Exchange Act and the Holder
is solely responsible for any schedules required to be filed in accordance therewith. To the extent that the limitation contained in
this Section 2(e) applies, the determination of whether this Warrant is exercisable (in relation to other securities owned by the Holder
together with any Affiliates and Attribution Parties) and of which portion of this Warrant is exercisable shall be in the sole discretion
of the Holder, and the submission of a Notice of Exercise shall be deemed to be the Holder’s determination of whether this Warrant
is exercisable (in relation to other securities owned by the Holder together with any Affiliates and Attribution Parties) and of which
portion of this Warrant is exercisable, in each case subject to the Beneficial Ownership Limitation, and the Company shall have no obligation
to verify or confirm the accuracy of such determination. In addition, a determination as to any group status as contemplated above shall
be determined in accordance with Section 13(d) of the Exchange Act and the rules and regulations promulgated thereunder. For purposes
of this Section 2(e), in determining the number of outstanding Ordinary Shares, a Holder may rely on the number of outstanding Ordinary
Shares as reflected in (A) the Company’s most recent annual report on Form 20-F, Report on Form 6-K or other public filings filed
with the Commission, as the case may be, (B) a more recent public announcement by the Company or (C) a more recent written notice by
the Company or the Depositary setting forth the number of Ordinary Shares outstanding. Upon the written or oral request of a Holder,
the Company shall within one (1) Trading Day confirm orally and in writing to the 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 securities
of the Company, including this Warrant, by the Holder or its Affiliates or Attribution Parties since the date as of which such number
of outstanding Ordinary Shares was reported. The “Beneficial Ownership Limitation” shall be 4.99% of the number of
Ordinary Shares outstanding immediately after giving effect to the issuance of the Ordinary Shares issuable upon exercise of this Warrant.
The Holder, upon notice to the Company, may increase or decrease the Beneficial Ownership Limitation provisions of this Section 2(e),
provided that the Beneficial Ownership Limitation in no event exceeds 9.99% of the number of Ordinary Shares outstanding immediately
after giving effect to the issuance of Ordinary Shares upon exercise of this Warrant held by the Holder and the provisions of this Section
2(e) shall continue to apply. Any increase in the Beneficial Ownership Limitation will not be effective until the 61st day
after such notice is delivered to the Company. The provisions of this paragraph shall be construed and implemented in a manner otherwise
than in strict conformity with the terms of this Section 2(e) to correct this paragraph (or any portion hereof) which may be defective
or inconsistent with the intended Beneficial Ownership Limitation herein contained or to make changes or supplements necessary or desirable
to properly give effect to such limitation. The limitations contained in this paragraph shall apply to a successor holder of this Warrant.
Section
3. Certain Adjustments.
a)
Stock Dividends and Splits. If the Company, at any time while this Warrant is outstanding: (i) pays a share dividend or otherwise
makes a distribution or distributions on its ADSs or Ordinary Shares or any other equity or equity equivalent securities payable in ADSs
or Ordinary Shares (which, for avoidance of doubt, shall not include any Ordinary Shares or ADSs issued by the Company upon exercise
of this Warrant), (ii) subdivides outstanding Ordinary Shares or ADSs into a larger number of Ordinary Shares or ADSs, as applicable,
(iii) combines (including by way of reverse share split) outstanding ADSs or Ordinary Shares into a smaller number of Ordinary Shares
or ADSs, as applicable, or (iv) issues by reclassification of ADSs, Ordinary Shares or any shares of capital stock of the Company, then
in each case the Exercise Price shall be multiplied by a fraction of which the numerator shall be the number of ADSs (excluding treasury
shares, if any) outstanding immediately before such event and of which the denominator shall be the number of Ordinary Shares or ADSs,
as applicable, outstanding immediately after such event, and the number of Ordinary Shares or ADSs, as applicable, issuable upon exercise
of this Warrant shall be proportionately adjusted such that the aggregate Exercise Price of this Warrant shall remain unchanged. Any
adjustment made pursuant to this Section 3(a) shall become effective immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision,
combination or re-classification.
b)
[RESERVED]
c)
Subsequent Rights Offerings. In addition to any adjustments pursuant to Section 3(a) above, if at any time the Company grants,
issues or sells any Ordinary Share Equivalents or rights to purchase shares, warrants, securities or other property pro rata to the record
holders of any class of ADSs or Ordinary Shares (the “Purchase Rights”), then the Holder will be entitled to acquire,
upon the terms applicable to such Purchase Rights, the aggregate Purchase Rights which the Holder could have acquired if the Holder had
held the number of ADSs or Ordinary Shares acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date on which a record is taken for
the grant, issuance or sale of such Purchase Rights, or, if no such record is taken, the date as of which the record holders of ADSs
are to be determined for the grant, issue or sale of such Purchase Rights (provided, however, that, to the extent that
the Holder’s right to participate in any such Purchase Right would result in the Holder exceeding the Beneficial Ownership Limitation,
then the Holder shall not be entitled to participate in such Purchase Right to such extent (or beneficial ownership of such ADSs or Ordinary
Shares as a result of such Purchase Right to such extent) and such Purchase Right to such extent shall be held in abeyance for the Holder
until such time, if ever, as its right thereto would not result in the Holder exceeding the Beneficial Ownership Limitation).
d)
Payments to be made to Holder in the event of a Distribution. During such time as this Warrant is outstanding, if the Company
shall declare or make any dividend or other distribution of its assets (or rights to acquire its assets) to holders of Ordinary Shares
or ADSs, by way of return of capital or otherwise (including, without limitation, any distribution of cash, shares or other securities,
property or options by way of a dividend, spin off, reclassification, corporate rearrangement, scheme of arrangement or other similar
transaction) (a “Distribution”), at any time after the issuance of this Warrant, then, in each such case, the Holder
shall be entitled to receive a payment (‘Payment’) equal to the amount that the Holder would have received by way of a Distribution
if the Holder had held the number of ADSs acquirable upon complete exercise of this Warrant (without regard to any limitations on exercise
hereof, including without limitation, the Beneficial Ownership Limitation) immediately before the date of which a record is taken for
such Distribution, or, if no such record is taken, the date as of which the record holders of Ordinary Shares or ADSs are to be determined
for the participation in such Distribution (provided, however, that, to the extent that the Holder’s right to receive
such a payment would result in the Holder exceeding the Beneficial Ownership Limitation, then the Holder shall not be entitled to receive
said Payment (or in the beneficial ownership of any Ordinary Shares or ADSs as a result of such Distribution to such extent) and the
amount of the Payment due shall be held in abeyance for the benefit of the Holder until such time, if ever, as its right thereto would
not result in the Holder exceeding the Beneficial Ownership Limitation).
e)
Fundamental Transaction. If, at any time while this Warrant is outstanding, (i) the Company, directly or indirectly, in one or
more related transactions effects any merger or consolidation of the Company with or into another Person, (ii) the Company (or any Subsidiary),
directly or indirectly, effects any sale, lease, license, assignment, transfer, conveyance or other disposition of all or substantially
all of its assets in one or a series of related transactions, (iii) any, direct or indirect, purchase offer, tender offer or exchange
offer (whether by the Company or another Person) is completed pursuant to which holders of Ordinary Shares (including any Ordinary Shares
underlying the ADSs) are permitted to sell, tender or exchange their shares for other securities, cash or property and has been accepted
by the holders of 50% or more of the outstanding Ordinary Shares or 50% or more of the voting power of the common equity of the Company
(including any Ordinary Shares underlying the ADSs), (iv) the Company, directly or indirectly, in one or more related transactions effects
any reclassification, reorganization or recapitalization of the Ordinary Shares or any compulsory share exchange pursuant to which the
Ordinary Shares effectively converted into or exchanged for other securities, cash or property, or (v) the Company, directly or indirectly,
in one or more related transactions consummates a share purchase agreement or other business combination (including, without limitation,
a reorganization, recapitalization, spin-off, merger or scheme of arrangement) with another Person or group of Persons whereby such other
Person or group acquires 50% or more of the outstanding Ordinary Shares (including any Ordinary Shares underlying the ADSs) or 50% or
more of the voting power of the common equity of the Company (each a “Fundamental Transaction”), occurs or is consummated,
then, upon any subsequent exercise of this Warrant, the Holder shall have the right to receive, for each Warrant Share represented by
each Warrant ADSs that would have been issuable upon such exercise immediately prior to the occurrence of such Fundamental Transaction,
at the option of the Holder (without regard to any limitation in Section 2(e) on the exercise of this Warrant), the number of shares
of capital stock of the successor or acquiring corporation or of the Company, if the Company is the surviving corporation, and any additional
consideration (the “Alternate Consideration”) receivable as a result of such Fundamental Transaction by a holder of
the number of Ordinary Shares (including any Ordinary Shares underlying ADSs) equal to the amount of Warrant Shares represented by the
Warrant ADSs for which this Warrant is exercisable immediately prior to such Fundamental Transaction (without regard to any limitation
in Section 2(e) on the exercise of this Warrant). For purposes of any such exercise, the determination of the Exercise Price shall be
appropriately adjusted to apply to such Alternate Consideration based on the amount of Alternate Consideration issuable in respect of
one Ordinary Share (including any Warrant Shares underlying the ADSs), in such Fundamental Transaction, and the Company shall apportion
the Exercise Price among the Alternate Consideration in a reasonable manner reflecting the relative value of any different components
of the Alternate Consideration. If holders of Ordinary Shares or ADSs are given any choice as to the securities, cash or property to
be received in a Fundamental Transaction, then the Holder shall be given the same choice as to the Alternate Consideration it receives
upon any exercise of this Warrant following such Fundamental Transaction. Notwithstanding anything to the contrary, the Company or any
Successor Entity (as defined below) shall, at the Holder’s option, exercisable at any time concurrently with, or within 30 days
after, the consummation of the Fundamental Transaction (or, if later, the date of the public announcement of the applicable Fundamental
Transaction), purchase this Warrant from the Holder by paying to the Holder an amount of cash equal to the Black Scholes Value (as defined
below) of the remaining unexercised portion of this Warrant on the date of the consummation of such Fundamental Transaction; provided,
however, that, if the Fundamental Transaction is not within the Company’s control, including not approved by the Company’s
Board of Directors, the Holder shall only be entitled to receive from the Company or any Successor Entity the same type or form of consideration
(and in the same proportion), at the Black Scholes Value of the unexercised portion of this Warrant, that is being offered and paid to
the holders of Ordinary Shares and/or ADSs of the Company in connection with the Fundamental Transaction, whether that consideration
be in the form of cash, share or any combination thereof, or whether the holders of of Ordinary Shares and/or ADSs are given the choice
to receive from among alternative forms of consideration in connection with the Fundamental Transaction; provided, further, that if holders
of of Ordinary Shares and/or ADSs of the Company are not offered or paid any consideration in such Fundamental Transaction, such holders
of of Ordinary Shares and/or ADSs will be deemed to have received common shares of the Successor Entity (which Entity may be the Company
following such Fundamental Transaction) in such Fundamental Transaction. “Black Scholes Value” means the value of
this Warrant based on the Black-Scholes Option Pricing Model obtained from the “OV” function on Bloomberg determined as of
the day of consummation of the applicable Fundamental Transaction for pricing purposes and reflecting (A) a risk-free interest rate corresponding
to the U.S. Treasury rate for a period equal to the time between the date of the public announcement of the applicable contemplated Fundamental
Transaction and the Termination Date, (B) an expected volatility equal to the greater of (1) the 30 day volatility, (2) the 100 day volatility
or (3) the 365 day volatility, each of clauses (1)-(3) as obtained from the HVT function on Bloomberg (determined utilizing a 365 day
annualization factor) as of the Trading Day immediately following the public announcement of the applicable contemplated Fundamental
Transaction, (C) the underlying price per share used in such calculation shall be the greater of (i) the sum of the price per share being
offered in cash, if any, plus the value of any non-cash consideration, if any, being offered in such Fundamental Transaction and (ii)
the highest VWAP during the period beginning on the Trading Day immediately preceding the public announcement of the applicable contemplated
Fundamental Transaction (or the consummation of the applicable Fundamental Transaction, if earlier) and ending on the Trading Day of
the Holder’s request pursuant to this Section 3(e) and (D) a remaining option time equal to the time between the date of the public
announcement of the applicable contemplated Fundamental Transaction and the Termination Date and (E) a zero cost of borrow. The payment
of the Black Scholes Value will be made by wire transfer of immediately available funds (or such other consideration) within the later
of (i) five Business Days of the Holder’s election and (ii) the date of consummation of the Fundamental Transaction. The Company
shall cause any successor entity in a Fundamental Transaction in which the Company is not the survivor (the “Successor Entity”)
to assume in writing all of the obligations of the Company under this Warrant and the Letter Agreement in accordance with the provisions
of this Section 3(e) pursuant to written agreements in form and substance reasonably satisfactory to the Holder and approved by the Holder
(without unreasonable delay) prior to such Fundamental Transaction and shall, at the option of the Holder, deliver to the Holder in exchange
for this Warrant, a security of the Successor Entity evidenced by a written instrument substantially similar in form and substance to
this Warrant which is exercisable for a corresponding number of shares of capital stock of such Successor Entity (or its parent entity)
equivalent to the Warrant Shares underlying the Warrant ADSs acquirable and receivable upon exercise of this Warrant (without regard
to any limitations on the exercise of this Warrant) prior to such Fundamental Transaction, and with an exercise price which applies the
exercise price hereunder to such shares of capital stock (but taking into account the relative value of the Ordinary Shares underlying
the Warrant ADSs pursuant to such Fundamental Transaction and the value of such shares of capital stock, such number of shares of capital
stock and such exercise price being for the purpose of protecting the economic value of this Warrant immediately prior to the consummation
of such Fundamental Transaction), and which is reasonably satisfactory in form and substance to the Holder. Upon the occurrence of any
such Fundamental Transaction, the Successor Entity shall be added to the term “Company” under this Warrant (so that from
and after the occurrence or consummation of such Fundamental Transaction, each and every provision of this Warrant and the other Transaction
Documents referring to the “Company” shall refer instead to each of the Company and the Successor Entity or Successor Entities,
jointly and severally), and the Successor Entity or Successor Entities, jointly and severally with the Company, may exercise every right
and power of the Company prior thereto and the Successor Entity or Successor Entities shall assume all of the obligations of the Company
prior thereto under this Warrant and the other Transaction Documents with the same effect as if the Company and such Successor Entity
or Successor Entities, jointly and severally, had been named as the Company herein. For the avoidance of doubt, the Holder shall be entitled
to the benefits of the provisions of this Section 3(e) regardless of whether (i) the Company has sufficient authorized Ordinary Shares
for the issuance of the Warrant Shares and/or (ii) a Fundamental Transaction occurs prior to the Initial Exercise Date.
f)
Calculations. All calculations under this Section 3 shall be made to the nearest cent or the nearest 1/100th of an ADS, as the
case may be. For purposes of this Section 3, the number of Ordinary Shares deemed to be issued and outstanding as of a given date shall
be the sum of the number of Ordinary Shares (including Ordinary Shares underlying ADSs, but excluding treasury shares, if any) issued
and outstanding.
g)
Notice to Holder.
i.
Adjustment to Exercise Price. Whenever the Exercise Price is adjusted pursuant to any provision of this Section 3, the Company
shall promptly deliver to the Holder by email a notice setting forth the Exercise Price after such adjustment and any resulting adjustment
to the number of Warrant ADSs and setting forth a brief statement of the facts requiring such adjustment.
ii.
Notice to Allow Exercise by Holder. If (A) the Company shall declare a dividend (or any other distribution in whatever form) on
the Ordinary Shares or ADSs, (B) the Company shall declare a special nonrecurring cash dividend on or a redemption of the Ordinary Shares
or ADSs, (C) the Company shall authorize the granting to all holders of the Ordinary Shares or ADSs rights or warrants to subscribe for
or purchase any shares of capital stock of any class or of any rights, (D) the approval of any shareholders of the Company shall be required
in connection with any reclassification of the Ordinary Shares or ADSs, any consolidation or merger to which the Company is a party,
any sale or transfer of all or substantially all of the assets of the Company, or any compulsory share exchange whereby the Ordinary
Shares are converted into other securities, cash or property, or (E) the Company shall authorize the voluntary or involuntary dissolution,
liquidation or winding up of the affairs of the Company, then, in each case, the Company shall cause to be delivered by email to the
Holder at its last email address as it shall appear upon the Warrant Register of the Company, at least 20 calendar days prior to the
applicable record or effective date hereinafter specified, a notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution, redemption, rights or warrants, or if a record is not to be taken, the date as of which the holders of
the Ordinary Shares or ADSs of record to be entitled to such dividend, distributions, redemption, rights or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger, sale, transfer or share exchange is expected to become effective
or close, and the date as of which it is expected that holders of the Ordinary Shares (including Warrant Shares underlying Warrant ADSs)
of record shall be entitled to exchange their Ordinary Shares for securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer or share exchange; provided that the failure to deliver such notice or any defect therein or in
the delivery thereof shall not affect the validity of the corporate action required to be specified in such notice. To the extent that
any notice provided in this Warrant constitutes, or contains, material, non-public information regarding the Company or any of the Subsidiaries,
the Company shall simultaneously file such notice with the Commission pursuant to a Report on Form 6-K. The Holder shall remain entitled
to exercise this Warrant during the period commencing on the date of such notice to the effective date of the event triggering such notice
except as may otherwise be expressly set forth herein.
Section
4. Transfer of Warrant.
a)
Transferability. Subject to compliance with any applicable securities laws and the conditions set forth in Section 4(d) hereof,
this Warrant and all rights hereunder are transferable, in whole or in part, upon surrender of this Warrant at the principal office of
the Company or its designated agent, together with a written assignment of this Warrant substantially in the form attached hereto duly
executed by the Holder or its agent or attorney and funds sufficient to pay any transfer taxes payable upon the making of such transfer.
Upon such surrender and, if required, such payment, the Company shall execute and deliver a new Warrant or Warrants in the name of the
assignee or assignees, as applicable, and in the denomination or denominations specified in such instrument of assignment, and shall
issue to the assignor a new Warrant evidencing the portion of this Warrant not so assigned, and this Warrant shall promptly be cancelled.
Notwithstanding anything herein to the contrary, the Holder shall not be required to physically surrender this Warrant to the Company
unless the Holder has assigned this Warrant in full, in which case, the Holder shall surrender this Warrant to the Company within three
(3) Trading Days of the date on which the Holder delivers an assignment form to the Company assigning this Warrant in full. The Warrant,
if properly assigned in accordance herewith, may be exercised by a new holder for the purchase of Warrant ADSs without having a new Warrant
issued.
b)
New Warrants. This Warrant may be divided or combined with other Warrants upon presentation hereof at the aforesaid office of
the Company, together with a written notice specifying the names and denominations in which new Warrants are to be issued, signed by
the Holder or its agent or attorney. Subject to compliance with Section 4(a), as to any transfer which may be involved in such division
or combination, the Company shall execute and deliver a new Warrant or Warrants in exchange for the Warrant or Warrants to be divided
or combined in accordance with such notice. All Warrants issued on transfers or exchanges shall be dated the Initial Exercise Date and
shall be identical with this Warrant except as to the number of Warrant ADSs issuable pursuant thereto.
c)
Warrant Register. The Company shall register this Warrant, upon records to be maintained by the Company for that purpose (the
“Warrant Register”), in the name of the record Holder hereof from time to time. The Company may deem and treat the
registered Holder of this Warrant as the absolute owner hereof for the purpose of any exercise hereof or any distribution to the Holder,
and for all other purposes, absent actual notice to the contrary.
d)
Transfer Restrictions. If, at the time of the surrender of this Warrant in connection with any transfer of this Warrant, the transfer
of this Warrant shall not be either (i) registered pursuant to an effective registration statement under the Securities Act and under
applicable state securities or blue sky laws or (ii) eligible for resale without volume or manner-of-sale restrictions or current public
information requirements pursuant to Rule 144, the Company may require, as a condition of allowing such transfer, that the Holder or
transferee of this Warrant, as the case may be, provides to the Company an opinion of counsel in customary form to the effect that the
transfer of this Warrant does not require registration under the Securities Act.
e)
Representation by the Holder. The Holder, by the acceptance hereof, represents and warrants that it is acquiring this Warrant
and, upon any exercise hereof, will acquire the Warrant ADSs issuable upon such exercise, for its own account and not with a view to
or for distributing or reselling such Warrant ADSs or any part thereof in violation of the Securities Act or any applicable state securities
law, except pursuant to sales registered or exempted under the Securities Act.
Section
5. Miscellaneous.
a)
No Rights as Shareholder Until Exercise; No Settlement in Cash. This Warrant does not entitle the Holder to any voting rights,
dividends or other rights as a shareholder of the Company prior to the exercise hereof as set forth in Section 2(d)(i), except as expressly
set forth in Section 3. Without limiting any rights of a Holder to receive Warrant ADSs on a “cashless exercise” pursuant
to Section 2(c) or to receive cash payments pursuant to Section 2(d)(i) and Section 2(d)(iv) herein, in no event shall the Company be
required to net cash settle an exercise of this Warrant.
b)
Loss, Theft, Destruction or Mutilation of Warrant. The Company covenants that upon receipt by the Company of evidence reasonably
satisfactory to it of the loss, theft, destruction or mutilation of this Warrant or any stock certificate relating to the Warrant ADSs,
and in case of loss, theft or destruction, of indemnity or security reasonably satisfactory to it (which, in the case of the Warrant,
shall not include the posting of any bond), and upon surrender and cancellation of such Warrant or stock certificate, if mutilated, the
Company will make and deliver a new Warrant or stock certificate of like tenor and dated as of such cancellation, in lieu of such Warrant
or stock certificate.
c)
Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required
or granted herein shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding Business
Day.
d)
Authorized Shares.
The
Company covenants that, during the period the Warrant is outstanding, its directors will have authority to allot a sufficient number
of shares to provide for the issuance of the Warrant ADSs and the underlying Ordinary Shares upon the exercise of any purchase rights
under this Warrant. The Company further covenants that its issuance of this Warrant shall constitute full authority to its officers who
are charged with the duty of issuing the Warrant Shares needed for the Depositary to issue the necessary Warrant ADSs upon the exercise
of the purchase rights under this Warrant. The Company will take all such reasonable action as may be necessary to assure that such Warrant
Shares and Warrant ADSs and the underlying Ordinary Shares may be issued as provided herein without violation of any applicable law or
regulation, or of any requirements of the applicable Trading Market upon which the ADSs and Ordinary Shares may be listed. The Company
covenants that all Warrant ADSs and the underlying Ordinary Shares which may be issued upon the exercise of the purchase rights represented
by this Warrant will, upon exercise of the purchase rights represented by this Warrant and payment for such Warrant ADSs in accordance
herewith, be duly authorized, validly issued, fully paid and nonassessable and free from all taxes, liens and charges created by the
Company in respect of the issue thereof (other than any transfer restrictions and taxes in respect of any transfer occurring contemporaneously
with such issue).
Except
and to the extent as waived or consented to by the Holder, the Company shall not by any action, including, without limitation, amending
its articles of association or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Warrant, but will at
all times in good faith assist in the carrying out of all such terms and in the taking of all such actions as may be necessary or appropriate
to protect the rights of Holder as set forth in this Warrant against impairment. Without limiting the generality of the foregoing, the
Company will (i) not increase the par value of any Warrant ADSs above the amount payable therefor upon such exercise immediately prior
to such increase in par value, (ii) take all such action as may be necessary or appropriate in order that the Company may validly and
legally issue fully paid and nonassessable Warrant ADSs and the underlying Ordinary Shares upon the exercise of this Warrant and (iii)
use commercially reasonable efforts to obtain all such authorizations, exemptions or consents from any public regulatory body having
jurisdiction thereof, as may be, necessary to enable the Company to perform its obligations under this Warrant.
Before
taking any action which would result in an adjustment in the number of Warrant ADSs for which this Warrant is exercisable or in the Exercise
Price, the Company shall obtain all such authorizations or exemptions thereof, or consents thereto, as may be necessary from any public
regulatory body or bodies having jurisdiction thereof.
e)
Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Warrant shall be governed
by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts
of law thereof. Each party agrees that all legal proceedings concerning the interpretations, enforcement and defense of the transactions
contemplated by this Warrant (whether brought against a party hereto or their respective affiliates, directors, officers, shareholders,
partners, members, employees or agents) shall be commenced exclusively in the state and federal courts sitting in the City of New York.
Each party hereby irrevocably submits to the 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 herewith or with any transaction contemplated hereby
or discussed herein, 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 improper or is an inconvenient
venue for such proceeding. 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 via registered or certified mail or overnight delivery (with evidence of delivery)
to such party at the address in effect for notices to it under this Warrant 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
other manner permitted by law. If either party shall commence an action, suit or proceeding to enforce any provisions of this Warrant,
the prevailing party in such action, suit or proceeding shall be reimbursed by the other party for their reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation and prosecution of such action or proceeding.
f)
Restrictions. The Holder acknowledges that the Warrant ADSs acquired upon the exercise of this Warrant, if not registered, and
the Holder does not utilize cashless exercise, will have restrictions upon resale imposed by state and federal securities laws.
g)
Nonwaiver and Expenses. No course of dealing or any delay or failure to exercise any right hereunder on the part of Holder shall
operate as a waiver of such right or otherwise prejudice the Holder’s rights, powers or remedies. Without limiting any other provision
of this Warrant, if the Company willfully and knowingly fails to comply with any provision of this Warrant, which results in any material
damages to the Holder, the Company shall pay to the Holder such amounts as shall be sufficient to cover any costs and expenses including,
but not limited to, reasonable attorneys’ fees, including those of appellate proceedings, incurred by the Holder in collecting
any amounts due pursuant hereto or in otherwise enforcing any of its rights, powers or remedies hereunder.
h)
Notices. Any and all notices or other communications or deliveries to be provided by the Holders hereunder including, without
limitation, any Notice of Exercise, shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight
courier service, addressed to the Company, at Maxim 1, 2 Parklands Way, Holytown, Motherwell, M11 4Wr, Scotland, United Kingdom, Attention:
Chief Financial Officer, email address: m.thorp@tcbiopharm.com, or such other email address or address as the Company may specify
for such purposes by notice to the Holders. Any and all notices or other communications or deliveries to be provided by the Company hereunder
shall be in writing and delivered personally, by e-mail, or sent by a nationally recognized overnight courier service addressed to each
Holder at the e-mail address or address of such Holder appearing on the books of the Company. Any notice or other communication or deliveries
hereunder shall be deemed given and effective on the earliest of (i) the time of transmission, if such notice or communication is delivered
via e-mail at the e-mail address set forth in this Section prior to 5:30 p.m. (New York City time) on any date, (ii) the next Trading
Day after the time of transmission, if such notice or communication is delivered via e-mail at the e-mail address set forth in this Section
on a day that is not a Trading Day or later than 5:30 p.m. (New York City time) on any Trading Day, (iii) the second Trading Day following
the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (iv) upon actual receipt by the party to whom
such notice is required to be given. To the extent that any notice provided hereunder constitutes, or contains, material, non-public
information regarding the Company or any Subsidiaries, the Company shall simultaneously file such notice with the Commission pursuant
to a Current Report on Form 6-K.
i)
Limitation of Liability. No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant
to purchase Warrant ADSs, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the
Holder for the purchase price of any ADSs or Ordinary Shares or as a shareholder of the Company, whether such liability is asserted by
the Company or by creditors of the Company.
j)
Remedies. The Holder, in addition to being entitled to exercise all rights granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Warrant. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Warrant and hereby agrees to waive and not to
assert the defense in any action for specific performance that a remedy at law would be adequate.
k)
Successors and Assigns. Subject to applicable securities laws, this Warrant and the rights and obligations evidenced hereby shall
inure to the benefit of and be binding upon the successors and permitted assigns of the Company and the successors and permitted assigns
of Holder. The provisions of this Warrant are intended to be for the benefit of any Holder from time to time of this Warrant and shall
be enforceable by the Holder or holder of Warrant ADSs.
l)
Company Acknowledgement. The Company acknowledges that the Company has received the aggregate par value of the Ordinary Shares
represented by ADSs issuable upon exercise of this Warrant and the Company shall hold such aggregate par value amount in trust pursuant
to the Letter Agreement and shall apply it in payment of the par value of the Ordinary Shares represented by ADSs issued in connection
with exercises of this Warrant pursuant to Section 2(c) herein.
m)
Amendment. This Warrant may be modified or amended or the provisions hereof waived with the written consent of the Company and
the Holder.
n)
Severability. Wherever possible, each provision of this Warrant shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Warrant shall be prohibited by or invalid under applicable law, such provision shall
be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining
provisions of this Warrant.
o)
Headings. The headings used in this Warrant are for the convenience of reference only and shall not, for any purpose, be deemed
a part of this Warrant.
********************
(Signature
Page Follows)
IN
WITNESS WHEREOF, the Company has caused this Warrant to be executed by its officer thereunto duly authorized as of the date first above
indicated.
|
TC
BIOPHARM (HOLDINGS) PLC |
|
|
|
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By: |
|
|
Name: |
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Title: |
|
NOTICE
OF EXERCISE
To: |
TC
BIOPHARM (HOLDINGS) PLC |
(1)
The undersigned hereby elects to purchase ________ Warrant ADSs of the Company pursuant to the terms of the attached Warrant (only if
exercised in full), and tenders herewith payment of the exercise price in full, together with all applicable transfer taxes, if any.
(2)
Payment shall take the form of (check applicable box):
[
] in lawful money of the United States; or
[
] if permitted, the cancellation of such number of Warrant ADSs as is necessary, in accordance with the formula set forth in subsection
2(c), to exercise this Warrant with respect to the maximum number of Warrant ADSs purchasable pursuant to the cashless exercise procedure
set forth in subsection 2(c).
(3)
Please register issue said Warrant ADSs in the name of the undersigned or in such other name as is specified below:
DWAC
Account for Warrant ADSs not bearing a restrictive legend:
DTC
Participant name and number: ________________________
Contact
of DTC Participant: _______________________
Telephone
Number of Participant Contact: _____________________
For
Warrant ADSs bearing a restrictive legend:
Name:_______________________________
Address:______________________________
Tax
ID:_______________________________
Telephone
Number of Holder:______________
(4)
Accredited Investor. The undersigned is an “accredited investor” as defined in Regulation D promulgated under the
Securities Act of 1933, as amended.
[SIGNATURE
OF HOLDER]
Name
of Investing Entity: ________________________________________________________________________
Signature
of Authorized Signatory of Investing Entity: _________________________________________________
Name
of Authorized Signatory: ___________________________________________________________________
Title
of Authorized Signatory: ____________________________________________________________________
Date:
________________________________________________________________________________________
EXHIBIT
B
ASSIGNMENT
FORM
(To
assign the foregoing Warrant, execute this form and supply required information. Do not use this form to purchase Warrant ADSs.)
FOR
VALUE RECEIVED, the foregoing Warrant and all rights evidenced thereby are hereby assigned to
Name: |
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Address: |
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(Please
Print) |
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Phone
Number: |
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Email
Address: |
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Dated:
_______________ __, ______ |
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Holder’s
Signature: |
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Holder’s
Address: |
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Exhibit
5.1
Our reference JACKM/374423-7
29
September 2023
TC
BioPharm (Holdings) plc (Company)
Maxim 1, 2 Parklands Way
Holytown
Motherwell
ML1 4WR
Scotland
United Kingdom
Dear
Sir / Madam
We
are lawyers qualified to practice law in Scotland. We have acted as counsel to the Company to provide this legal opinion in connection
with the Company’s registration statement on Form F-3, filed pursuant to the Securities Act of 1933, as amended
(the “Act”), including all amendments or supplements thereto, filed with the Securities and Exchange Commission (the “Commission”)
under the Act (the “Registration Statement”), which relates to the registration, offering and sale of (a) ordinary shares
of £0.0001 par value each (“Ordinary Shares”) in the form of American Depositary Shares (“ADS”), issued
by the Bank of New York Mellon at the rate of one Ordinary Share for each ADS; (b) warrants to purchase Ordinary Shares pursuant to the
terms of the D Warrant Instrument (as defined below) and (c) warrants to purchase Ordinary Shares pursuant to the terms of the Placement
Agent Warrants (as defined below).
We
have reviewed originals, copies or drafts of the following documents:
1.1 |
The public records of the Company on file and
available for online inspection at the Registrar of Companies in Scotland on 29 September 2023 including: |
|
(a) |
the Company’s original Memorandum and Articles
of Association; |
|
(b) |
the Company’s Articles of Association adopted
on 15 February 2022 and amended on 14 November 2022. |
1.2 |
The minutes of the meeting of the board of directors
of the Company held on 31 August 2023 (the Board Resolutions). |
1.3 |
The resolutions of the shareholders of the Company
passed at the shareholder meetings of the Company which took place on 14 January 2022, 3 February 2022, and 14 November 2022 (Shareholder
Resolutions). |
1.4 |
A certificate from a Director of the Company
dated 29 September 2023 together with its annexures (the Director’s Certificate)). |
1.5 |
An executed copy of the series D warrant to purchase
ordinary shares represented by ADSs by the Company dated 5 September 2023 (D Warrant Instrument). |
Addleshaw
Goddard LLP, Cornerstone, 107 West Regent Street, Glasgow G2 2BA
Tel +44 (0)141 221 2300 Fax +44 (0)141 221 5800 DX GW120 Glasgow
www.addleshawgoddard.com
Addleshaw
Goddard LLP is a limited liability partnership registered in England and Wales (with registered number OC318149) and is authorised and
regulated by the Solicitors Regulation Authority (with authorisation number 440721) and the Law Society of Scotland. A list of members
is open to inspection at our registered office, Milton Gate, 60 Chiswell Street, London EC1Y 4AG. The term partner refers to any individual
who is a member of any Addleshaw Goddard entity or association or an employee or consultant with equivalent standing based on their experience
and/or qualifications.
TC BioPharm (Holdings) plc |
29 September 2023 |
|
(a) |
the placement agent warrant to purchase 15,789
ordinary shares represented by ADSs by the Company dated 5 September 2023 relating to Craig Schwabe; |
|
(b) |
the placement agent warrant to purchase 4,678
ordinary shares represented by ADSs by the Company dated 5 September 2023 relating to Charles Worthman; |
|
(c) |
the placement agent warrant to purchase 299,985
ordinary shares represented by ADSs by the Company dated 5 September 2023 relating to Michael Vasinkevich; and |
|
(d) |
the placement agent warrant to purchase 147,361
ordinary shares represented by ADSs by the Company dated 5 September 2023 relating to Naom Rubinstein. |
(together the Placement
Agent Warrants).
In
giving this opinion we have assumed, without further verification, the completeness and accuracy of all documentation that we have reviewed.
We have also relied upon the following assumptions, which we have not independently verified:
2.1 |
copies of documents, conformed copies or drafts
of documents provided to us are true and complete copies of, or in the final forms of, the originals. |
2.2 |
that the final forms of the D Warrant Instrument
and the Placement Agent Warrants as signed by the parties thereto will conform in all respects to the drafts thereof as filed with the
Registration Statement. |
2.3 |
All signatures, initials and seals are genuine. |
2.4 |
The accuracy and completeness of all factual
representations expressed in or implied by the documents we have examined. |
2.5 |
That all public records of the Company which
we have examined are accurate and that the information disclosed by the online search which we conducted against the Company on 29 September
2023 is true and complete and that such information has not since then been altered and that such searches did not fail to disclose any
information which had been delivered for registration but did not appear on the public records at the date of our searches. |
2.6 |
The Board Resolutions and the Shareholder Resolutions
remain in full force and effect and have not been revoked and that the following the issue of Ordinary Shares pursuant to the D Warrant
Instrument and pursuant to all other instruments to which the Company is party the issued share capital of the Company shall not exceed
£2,000,000 in nominal value. |
2.7 |
There is nothing under any law (other than the
law of the Scotland) which would or might affect the opinions hereinafter appearing. |
|
|
|
Specifically, we have made no independent investigation of
the laws of the USA. |
Based
upon, and subject to, the foregoing assumptions and the qualifications set out in section 4 below, and having regard to such legal considerations
as we consider relevant, we are of the opinion that:
3.1 |
the Company is a public company limited by shares
and registered under the Companies Act 2006 (the “Act”) validly existing under the laws of Scotland, and possesses the capacity
to sue and be sued in its own name. |
TC BioPharm (Holdings) plc |
29 September 2023 |
3.2 |
the Company is authorised to issue the Ordinary
Shares to be issued by the Company for pursuant to the terms of the D Warrant Instrument and the Placement Agent Warrants (Securities). |
3.3 |
the Ordinary Shares underlying the ADSs to be
issued pursuant to the D Warrant Instrument and the Placement Agent Warrants are validly authorised, and are capable of being issued,
fully paid and non-assessable (meaning that no further sums are payable to the Company on such Securities). |
3.4 |
the Securities have been duly authorised for
issue by the shareholders of the Company, and when issued by the Directors of the Company against payment in full, of the consideration,
in accordance with the terms set out in the D Warrant Instrument or the Placement Agent Warrants as applicable (which sum shall in all
circumstances and notwithstanding the terms of such instruments be at least equal to the nominal value of the Securities in cash), and
duly registered in the Company’s register of members (shareholders), such Securities will be validly authorised, issued, fully
paid and non-assessable (meaning that no further sums are payable to the Company on such Securities). |
The
opinions expressed above are subject to the following qualifications:
4.1 |
The obligations of the Company may be subject
to restrictions pursuant to any agreement to which it is party which has not been reviewed by us. |
4.2 |
We make no comment with regard to any references
to foreign law or statutes in the Registration Statement. |
4.3 |
This opinion is given only as to, and based on,
circumstances and matters of fact existing and known to us on the date of this opinion. This opinion only relates to the laws of Scotland
which are in force on the date of this opinion. |
In
connection with the above opinion, we hereby consent:
5.1 |
to the use of our name in the Registration Statement,
the prospectus constituting a part thereof and all amendments thereto under the caption “Legal Matters”; and |
5.2 |
to the filing of this opinion as an exhibit to
the Registration Statement. |
This
opinion may be relied upon by the addressee only. It may not be relied upon by any other person except with our prior written consent.
This
opinion is limited to the matters detailed herein and is not to be read as an opinion with respect to any other matter.
Yours
faithfully
Murray
Jack for |
Addleshaw
Goddard LLP |
Direct
line |
+44
(0)141 574 2371 |
Email
|
murray.jack@addleshawgoddard.com |
Exhibit 5.2
|
Sheppard, Mullin, Richter & Hampton LLP
30 Rockefeller Plaza
New York, New York 10112-0015
212.653.8700 main
212.653.8701 fax
www.sheppardmullin.com |
September 29, 2023
VIA EDGAR
TC Biopharm (Holdings) PLC
Maxim 1, 2 Parklands Way
Holytown, Motherwell, ML1 4WR
Scotland, United Kingdom
Re: Registration Statement on Form F-3
Ladies and Gentlemen:
We have acted as counsel to TC
Biopharm (Holdings) PLC, a public limited company incorporated in Scotland pursuant to the Companies Act 2006, as amended (the “Company”),
in connection with the issuance of this opinion that relates to a Registration Statement on Form F-3 (the “Registration Statement”)
filed by the Company with the United States Securities and Exchange Commission (the “SEC”) under the Securities Act
of 1933, as amended (the “Securities Act”). The Registration Statement covers the resale, by the selling stockholders
listed therein, from time to time pursuant to Rule 415 under the Securities Act as set forth in the Registration Statement, of 12,942,813
american depositary shares (the “ADSs”) of the Company, which consist of (i) up to 12,475,000 ADSs that may be issuable
upon exercise of certain outstanding series D warrants (the “Series D Warrants”), which were issued by the Company
pursuant to a letter agreement dated August 30, 2023 and (ii) up to 467,813 ADSs that may be issuable upon exercise of certain outstanding
placement agent warrants, which were issued by the Company pursuant to an engagement agreement, dated November 1, 2022, as amended (the
“Placement Agent Warrants,” and together with the Series D Warrants, the “Warrants”). Each ADS represents
one ordinary share, £0.0001 par value per ordinary share, of the Company.
This opinion letter is being delivered
in accordance with the requirements of Item 601(b)(5)(i) of Regulation S-K under the Securities Act, and no opinion is expressed herein
as to any matter pertaining to the contents of the Registration Statement or related prospectus.
In connection with the issuance
of this opinion letter, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such records of
the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the
Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinions stated below. As to
any facts relevant to the opinions stated herein that we did not independently establish or verify, we have relied upon statements and
representations of officers and other representatives of the Company and of public officials.
In our examination, we have assumed
(a) the genuineness of all signatures, including endorsements, (b) the legal capacity and competency of all natural persons and, with
respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power
and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments
have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements
or instruments are the valid, binding and enforceable obligations of such parties, (c) the authenticity of all documents submitted to
us as originals, (d) the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic
copies, and the authenticity of the originals of such copies; (e) the accuracy, completeness and authenticity of certificates of public
officials; (f) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents,
certificates and records we have reviewed; (g) that, as set forth in a separate opinion delivered to the Company on the date hereof by
Addleshaw Goddard LLP, UK counsel to the Company, the Warrants have been duly authorized; and (h) the legal capacity for all purposes
relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company,
that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments,
that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered
by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties.
Based upon the foregoing and subject
to the qualifications and assumptions stated herein, we are of the opinion that:
1. The Warrants constitute valid
and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
Our
opinion set forth in paragraph 1 above is subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors’ rights generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant of good faith and fair dealing.
Our opinion is expressly limited
to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the
Company, the Warrants or any other agreements or transactions that may be related thereto or contemplated thereby. We are expressing no
opinion as to any obligations that parties other than the Company may have under or in respect of the Warrants or as to the effect that
their performance of such obligations may have upon any of the matters referred to above. No opinion may be implied or inferred beyond
the opinion expressly stated above.
The opinion we render herein is
limited to those matters governed by New York law as of the date hereof and we disclaim any obligation to revise or supplement the opinion
rendered herein should the above-referenced laws be changed by legislative or regulatory action, judicial decision, or otherwise. We express
no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof. We express
no opinion as to matters governed by any laws other than New York law.
This opinion letter is rendered
as of the date first written above, and we disclaim any obligation to advise you of facts, circumstances, events, or developments that
hereafter may be brought to our attention or that may alter, affect, or modify the opinion expressed herein.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement. We also hereby consent to the reference to our firm under the heading “Legal
Matters” in the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the General Rules and Regulations under the Securities Act. It is understood
that this opinion is to be used only in connection with the offer and sale of the Shares being registered while the Registration Statement
is effective under the Securities Act.
Respectfully submitted,
/s/ Sheppard, Mullin, Richter & Hampton LLP
Sheppard, Mullin, Richter & Hampton LLP
Exhibit
23.1
Independent
Registered Public Accounting Firm’s Consent
We
consent to the incorporation by reference in this Registration Statement of TC BioPharm (Holdings) PLC on Form F-3 of our report dated
May 1, 2023, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to
our audit of the consolidated financial statements of TC BioPharm (Holding) PLC as of December 31, 2022 and for the year ended December
31, 2022 appearing in the Annual Report on Form 20-F of TC BioPharm (Holdings) PLC for the year ended December 31, 2022. Our report
on the consolidated financial statements refers to a retrospective adjustment to the 2021 and 2020 consolidated financial statements
for the November 2022 reverse share split, which we have audited. We also consent to the reference to our firm under the heading “Experts”
in the Prospectus, which is part of this Registration Statement.
/s/
Marcum llp
Marcum
llp
New
York, NY
September
29, 2023
Exhibit
23.2
Consent
of Independent Registered Public Accounting Firm
We
consent to the reference to our firm under the caption “Experts” in the Registration Statement (Form F-3) and related Prospectus
of TC BioPharm (Holdings) plc for the registration of American Depository Shares representing ordinary shares and warrants and to the
incorporation by reference therein of our report dated May 13, 2022, with respect to the consolidated financial statements of TC BioPharm
(Holdings) plc included in its Annual Report (Form 20-F) for the year ended December 31, 2021, filed with the Securities and Exchange
Commission.
/s/
Ernst & Young LLP
Edinburgh,
United Kingdom
September
29, 2023
Exhibit
107
Calculation
of Filing Fee Tables
Form
F-3
(Form
Type)
TC
Biopharm (Holdings) PLC
(Exact
Name of Registrant as Specified in its Charter)
Table
1: Newly Registered Securities
| |
Security Type | |
Security Class Title | |
Fee Calculation or Carry Forward Rule | | |
Amount Registered (1)(2) | | |
Proposed Maximum Offering Price Per Unit (3) | | |
Maximum Aggregate Offering Price | | |
Fee Rate | | |
Amount of Registration Fee | |
Fees to be paid | |
Equity | |
Ordinary Shares, par value £0.0001 per share | |
| 457 | (c) | |
| 12,475,000 | | |
$ | 0.375 | | |
$ | 4,678,125.00 | | |
$ | .00011020 | | |
$ | 515.53 | |
Fees
to be paid | |
Equity | |
Ordinary
Shares, par value £0.0001 per share | |
| 457 | (c) | |
| 467,813 | | |
$ | 0.375 | | |
$ | 175,429.88 | | |
$ | .00011020 | | |
$ | 19.33 | |
| |
Total Offering Amounts | | |
| | | |
$ | 4,853,554.88 | | |
| | | |
| 534.86 | |
| |
Total Fees Previously Paid | | |
| | | |
$ | 0 | | |
| | | |
| | |
| |
Total Fee Offsets | | |
| | | |
$ | 0 | | |
| | | |
| | |
| |
Net Fee Due | | |
| | | |
$ | 534.86 | | |
| | | |
| | |
(1) |
Represents
the maximum number of ordinary shares, represented by American Depositary Shares (“ADSs”), each representing one ordinary
share, offered by the selling shareholder named in this Registration Statement. |
(2) |
This
Registration Statement includes an indeterminate number of additional ordinary shares issuable for no additional consideration pursuant
to any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration,
which results in an increase in the number of outstanding ordinary shares. In the event of a stock split, stock dividend or similar
transaction involving our ordinary shares, in order to prevent dilution, the number of shares registered shall be automatically
increased to cover the additional shares in accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”). |
(3) |
Estimated
in accordance with Rule 457(c) of the Securities Act solely for the purpose of computing the amount of the registration fee. The
maximum price per Security and the maximum aggregate offering price are based on the average of the $0.40 (high) and $0.35
(low) sale price of the Registrant’s ADSs as reported on the Nasdaq Capital Market on September 26, 2023. |
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