UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
6-K
REPORT
OF FOREIGN PRIVATE ISSUER
PURSUANT
TO RULE 13a-16 OR 15d-16
UNDER
THE SECURITIES EXCHANGE ACT OF 1934
For
the month of August 2023
Commission
File Number 001-41231
TC
BIOPHARM (HOLDINGS) PLC
(Translation
of registrant’s name into English)
Maxim
1, 2 Parklands Way
Holytown,
Motherwell, ML1 4WR
Scotland,
United Kingdom
+44
(0) 141 433 7557
(Address
of Principal Executive Offices)
Indicate
by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(1): ____ ☐
Indicate
by check mark if the registrant is submitting the Form 6-K in paper as permitted by Regulation S-T Rule 101(b)(7): ____ ☐
On
August 30, 2023, TC Biopharm (Holdings) PLC (the “Company”), 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 (the “New Warrants”), as described below, to purchase up to 12,475,000 of the
Company’s ordinary shares represented by ADSs (the “New Warrant ADSs”). The Company expects to receive
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
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 467,812 ordinary shares represented by ADSs, which Placement Agent Warrants shall be in the form of the New Warrants,
except that the Placement Agent Warrants shall have an exercise price of £0.4375.
The
closing of the transactions contemplated pursuant to the Inducement Letter is expected to occur on September 5, 2023 (the “Closing
Date”), subject to satisfaction of customary closing conditions. 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
resale of the shares of the Company’s ADSs upon exercise of the Existing Warrants are registered pursuant to the Company’s
registration statement on Form F-1 (File No. 333-270808) and registered for resale pursuant to Company’s registration statement
on Form F-1 (File No. 333-268755).
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. 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).
Terms
of New Warrants
The
following summary of certain terms and provisions of the New Warrants is not complete and is subject to, and qualified in its entirety
by, the provisions of the New Warrants, the form of which is filed as Exhibit 4.1 to this Current Report on Form 6-K and is incorporated
herein by reference. The following description of the New Warrants is qualified in its entirety by reference to such exhibit.
Duration
and Exercise Price
Each
New Warrant will have an exercise price equal to £0.35 per ADS. The New 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
New 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 New 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 New 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 New 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 New Warrants.
Trading
Market
There
is no established trading market for the New Warrants, and the Company does not expect an active trading market to develop. The Company
does not intend to apply to list the New Warrants on any securities exchange or other trading market. Without a trading market, the liquidity
of the New Warrants will be extremely limited.
Rights
as a Stockholder
Except
as otherwise provided in the New Warrants or by virtue of the holder’s ownership of the Company’s ADSs, such holder of New
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 New Warrants. The New Warrants will provide that the holders of the New Warrants have the right to participate
in distributions or dividends paid on the Company’s ADSs.
Fundamental
Transactions
If
at any time the New Warrants are outstanding, the Company, either directly or indirectly, in one or more related transactions effects
a Fundamental Transaction (as defined in the New Warrant), a Holder of New Warrants will be entitled to receive, upon exercise of the
New Warrants, the kind and amount of securities, cash or other property that such holder would have received had they exercised the New
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
New Warrants may be modified or amended or the provisions of the New Warrants waived with the Company’s and the holder’s
written consent.
The
forms of Inducement Letter and New Warrant are attached as Exhibits 10.1 and 4.1, respectively. The description of the terms of the Inducement
Letter and the New Warrant is not intended to be complete and is qualified in its entirety by reference to such exhibits. The Inducement
Letter contains customary representations, warranties and covenants by the Company which were made only for the purposes of such agreements
and as of specific dates, were solely for the benefit of the parties to such agreements and may be subject to limitations agreed upon
by the contracting parties.
The
Company issued the New Warrants and the Placement Agent Warrants pursuant to the exemption from the registration requirements of the
Securities Act available under Section 4(a)(2). Neither the issuance of the New Warrants, the Placement Agent Warrants nor the New Warrant
ADSs or the ADSs issuable upon the exercise of the New Warrants and Placement Agent Warrants have been registered under the Securities
Act and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the
Securities Act and any applicable state securities laws. The description of the New Warrants and the Placement Agent Warrants in this
Form 6-K is incorporated by reference herein.
Neither
this Current Report on Form 6-K nor any exhibit attached hereto is an offer to sell or the solicitation of an offer to buy securities
of the Company.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
Signature
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
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TC
BIOPHARM (HOLDINGS) PLC |
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By: |
/s/
Martin Thorp |
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Name: |
Martin
Thorp |
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Title: |
Chief
Financial Officer |
Date:
August 31, 2023
Exhibit
4.1
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.
SERIES
D WARRANT TO PURCHASE ORDINARY SHARES
REPRESENTED
BY AMERICAN DEPOSITARY SHARES
TC
BIOPHARM (HOLDINGS) PLC
Warrant
ADSs: ______ |
Initial
Exercise Date: _____, 2023 |
THIS
SERIES D 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 February __, 20291 (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).
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.
1 Insert the date that is the five and
one-half (5.5) year anniversary of the Initial Exercise Date, provided that, if such date is not a Trading Day, insert the immediately
following Trading Day
“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 £0.35, 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:
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(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; |
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(B)
= |
the
Exercise Price of this Warrant, as adjusted hereunder; and |
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(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%] [9.99%] 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.
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TC
BIOPHARM (HOLDINGS) PLC |
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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
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Dated:
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Exhibit
10.1
TC
BIOPHARM (HOLDINGS) PLC
August
30, 2023
Holder
of Warrants to Purchase Ordinary Shares Represented by American Depositary Shares
Re: |
Inducement
Offer to Exercise Existing Warrants to Purchase Ordinary Shares Represented by American Depositary Shares |
Dear
Holder:
TC
Biopharm (Holdings) PLC, a public limited company incorporated in Scotland pursuant to the Companies Act 2006 (the “Company”)
is pleased to offer to you (“Holder”, “you” or similar terminology) the opportunity to receive
new warrants to purchase ordinary shares, par value £0.0001 per share, of the Company (the “Ordinary Shares”)
represented by American Depositary Shares of the Company (the “ADSs”) in consideration for you exercising for cash
all of the warrants to purchase Ordinary Shares represented by ADSs held by you (“Existing Warrants”) as set forth
on your signature page hereto. The issuance and/or the resale of the Ordinary Shares represented by ADSs underlying the Existing Warrants
(the “Warrant ADSs”) have been registered pursuant to the Company’s registration statement on Form F-1 (File
No. 333-270808) and registered for resale pursuant to Company’s registration statement on Form F-1 (File No. 333-268755) (collectively,
the “Registration Statements” and, each, a “Registration Statement”) and the ADSs are registered
on a registration statement on Form F-6 (File No. 333-262149) (the “F-6 Registration Statement”). The Registration
Statements and the F-6 Registration Statement are currently effective and, upon your exercise of your Existing Warrants pursuant to this
letter agreement, will be effective for the issuance and/or resale of the Warrant ADSs. No later than the first (1st) Trading
Day following the date hereof, the Company shall file a prospectus supplement to each of the Registration Statements in connection with
the Existing Warrants pursuant to the terms hereunder. Capitalized terms not otherwise defined herein shall have the meanings set forth
in the New Warrants (as defined herein).
In
consideration for you exercising in full for cash all of the Existing Warrants held by you as set forth on your signature page hereto
(the “Warrant Exercise”), the Company hereby offers to issue to you or your designees:
(a)
a new unregistered warrant to purchase Ordinary Shares represented by ADSs (“New Warrants”) pursuant to Section 4(a)(2)
of the Securities Act of 1933, as amended (“Securities Act”), to purchase up to a number of Ordinary Shares represented
by ADSs (the “New Warrant ADSs”) equal to 200% of the number of Warrant ADSs issued pursuant to each Warrant Exercise
hereunder, which New Warrants shall be substantially in the form as set forth in Exhibit A hereto, exercisable at any time on
or after the date of issuance and until the five and one-half year anniversary of the date of issuance, for £0.35 per ADS,
subject to adjustment as provided in the New Warrants.
(b)
The New Warrants certificate(s) will be delivered within two (2) Trading Days following the Execution Time, and such New Warrants, together
with any underlying Ordinary Shares represented by ADSs issued upon exercise of the New Warrants, will, unless and until registered,
contain customary restrictive legends and other language typical for an unregistered warrant and unregistered Ordinary Shares represented
by ADSs. Notwithstanding anything herein to the contrary, 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) 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 parties hereby agree that the Beneficial Ownership Limitation for purposes
of the Existing Warrant is as set forth on the Holder’s signature page hereto.
Expressly
subject to the paragraph immediately following this paragraph below, you may accept this offer by executing the signature page of this
letter, with such acceptance constituting your exercise in full of the Existing Warrants for an aggregate exercise price set forth on
your signature page hereto (the “Warrant Exercise Price”) on or before 7:00 p.m., Eastern Time, on August 30,
2023 (the “Execution Time”).
Additionally,
the Company agrees to the representations, warranties and covenants set forth on Annex A attached hereto. Holder represents and
warrants that, as of the date hereof it is, and on each date on which it exercises any New Warrants it will be, an “accredited
investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act, and agrees that, when issued, the New Warrants
will contain customary restrictive legends, and neither the New Warrants nor the Ordinary Shares represented by ADSs issuable upon exercise
of the New Warrants will be registered under the Securities Act, except as provided in Annex A attached hereto. Also, Holder represents
and warrants that it is acquiring the New Warrants as principal for its own account and has no direct or indirect arrangement or understandings
with any other persons to distribute or regarding the distribution of the New Warrants or the New Warrant ADSs (this representation is
not limiting Holder’s right to sell the New Warrant ADSs pursuant to an effective registration statement under the Securities Act
or otherwise in compliance with applicable federal and state securities laws).
The
Holder understands that the New Warrants and the New Warrant ADSs are not, and, subject to the registration obligations contained in
paragraph d. of Annex A, may never be, registered under the Securities Act, or the securities laws of any state and, accordingly,
each certificate, if any, representing the New Warrants and the New Warrant ADSs shall bear a legend substantially similar to the following:
“THIS
SECURITY HAS NOT 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.”
Upon
the Holder’s exercise of the New Warrants, certificates evidencing the New Warrant ADSs shall not contain any legend (including
the legend set forth above), (i) while a registration statement covering the resale of such New Warrant ADSs is effective under the Securities
Act, (ii) following any sale of such New Warrant ADSs pursuant to Rule 144 under the Securities Act, (iii) if such New Warrant ADSs are
eligible for sale under Rule 144 (assuming cashless exercise of the New Warrants), without the requirement for the Company to be in compliance
with the current public information requirement under Rule 144 as to such New Warrant ADSs and without volume or manner-of-sale restrictions,
(iv) if such New Warrant ADSs may be sold under Rule 144 (assuming cashless exercise of the New Warrants) and the Company is then in
compliance with the current public information requirement under Rule 144 as to such New Warrant ADSs, or (v) if such legend is not required
under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the
Securities and Exchange Commission (the “Commission”) and the earliest of clauses (i) through (v), the “Delegend
Date”)). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Delegend Date
if required by the Company and/or the Transfer Agent to effect the removal of the legend hereunder, or at the request of the Holder,
which opinion shall be in form and substance reasonably acceptable to the Holder. From and after the Delegend Date, such New Warrant
ADSs shall be issued free of all legends. The Company agrees that following the Delegend Date or at such time as such legend is no longer
required under this Section, it will, no later than two (2) Trading Days following the delivery by the Holder to the Company or the Transfer
Agent of a certificate representing the New Warrant ADSs issued with a restrictive legend (such second (2nd) Trading Day,
the “Legend Removal Date”), deliver or cause to be delivered to the Holder a certificate representing such shares
that is free from all restrictive and other legends or, at the request of the Holder, shall credit the account of the Holder’s
prime broker with the Depository Trust Company System as directed by the Holder.
In
addition to the Holder’s other available remedies, the Company shall pay to a Holder, in cash, (i) as partial liquidated damages
and not as a penalty, for each $1,000 of New Warrant ADSs (based on the VWAP of the ADSs on the date such New Warrant ADSs are submitted
to the Transfer Agent) delivered for removal of the restrictive legend, $10 per Trading Day (increasing to $20 per Trading Day five (5)
Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered
without a legend and (ii) if the Company fails to (a) issue and deliver (or cause to be delivered) to the Holder by the Legend Removal
Date a certificate representing the New Warrant ADSs free from all restrictive and other legends and (b) if after the Legend Removal
Date the Holder purchases (in an open market transaction or otherwise) ADSs to deliver in satisfaction of a sale by the Holder of all
or any portion of the number of ADSs, or a sale of a number of ADSs equal to all or any portion of the number of ADSs that the Holder
anticipated receiving from the Company without any restrictive legend, then, an amount equal to the excess of the Holder’s total
purchase price (including brokerage commissions and other out-of-pocket expenses, if any) for the ADSs so purchased (including brokerage
commissions and other out-of-pocket expenses, if any) (the “Buy-In Price”) over the product of (A) such number of
New Warrant ADSs that the Company was required to deliver to the Holder by the Legend Removal Date and for which the Holder was required
to purchase shares to timely satisfy delivery requirements, multiplied by (B) the weighted average price at which the Holder sold that
number of ADSs.
If
this offer is accepted and this letter agreement is executed by you and the Company by the Execution Time, then as promptly as possible
following the Execution Time, but in any event no later than 8:00 a.m., Eastern Time, on the Trading Day following the date hereof, the
Company shall file a Report on Form 6-K with the Commission disclosing all material terms of the transactions contemplated hereunder,
including this letter agreement and New Warrant as exhibits thereto, with the Commission within the time required by the Exchange Act.
From and after the filing of such Report on Form 6-K, as applicable, the Company represents to you that it shall have publicly disclosed
all material, non-public information delivered to you by the Company, or any of its respective officers, directors, employees or agents
in connection with the transactions contemplated hereunder. In addition, effective upon the filing of such Report on Form 6-K, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement, whether written or oral, between
the Company, any of its Subsidiaries or any of their respective officers, directors, agents, employees or Affiliates on the one hand,
and you and your Affiliates on the other hand, shall terminate. The Company represents, warrants and covenants that, upon acceptance
of this offer, the Warrant ADSs issuable upon your exercise of the Existing Warrants shall be issued free of any legends or restrictions
on resale by Holder.
No
later than the second (2nd) Trading Day following the date of the public disclosure of the transactions hereunder, the closing
(“Closing”) shall occur at such location as the parties shall mutually agree. Unless otherwise directed by H.C. Wainwright
& Co., LLC (the “Placement Agent”), settlement of the Warrant ADSs shall occur via “Delivery Versus Payment”
(“DVP”) (i.e., on the Closing Date, the Company shall issue the Warrant ADSs registered in the Holder’s name
and address provided to the Company in writing and released by the Transfer Agent directly to the account(s) at the Placement Agent identified
by the Holder; upon receipt of such Warrant ADSs, the Placement Agent shall promptly electronically deliver such Warrant ADSs to the
Holder, and payment therefor shall concurrently be made to the Company by the Placement Agent (or its clearing firm) by wire transfer
to the Company). The date of the Closing of the exercise of the Existing Warrants shall be referred to as the “Closing Date.”
The
Company acknowledges that each Holder has paid the aggregate par value amount of the Ordinary Shares represented by ADSs issuable upon
exercise of such Holder’s New Warrants and the Company shall hold such aggregate par value amount in trust and shall apply it as
applicable in connection with exercises of such New Warrants pursuant to Section 2(c) therein by such Holder or any assignee of such
New Warrants.
The
Company acknowledges and agrees that the obligations of the Holder under this letter agreement is several and not joint with the obligations
of any other holder or holders of warrants to purchase Ordinary Shares represented by ADSs issued concurrently with the Existing Warrants
(each, an “Other Holder”) under any other agreement which may exist related to the exercise of such warrants to purchase
Ordinary Shares represented by ADSs issued concurrently with the Existing Warrants (“Other Warrant Exercise Agreement”),
and the Holder shall not be responsible in any way for the performance of the obligations of any Other Holder or under any such Other
Warrant Exercise Agreement. Nothing contained in this letter agreement, and no action taken by the Holder or any Other Holder pursuant
hereto, shall be deemed to constitute the Holder and the Other Holders as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption that the Holder and the Other Holders are in any way acting in concert or as a group with respect
to such obligations or the transactions contemplated by this letter agreement and the Company acknowledges that the Holder and the Other
Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this letter agreement
or any Other Warrant Exercise Agreement. The Company and the Holder confirm that the Holder has independently participated in the Company’s
solicitation of, and the mutual negotiation of, the transactions contemplated hereby with the advice of its own counsel and advisors.
The Holder shall be entitled to independently protect and enforce its rights, including, without limitation, the rights arising out of
this letter agreement, and it shall not be necessary for any Other Holder to be joined as an additional party in any proceeding for such
purpose.
The
Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until six (6) months
after the date hereof, that none of the terms offered to any Other Holder with respect to any Other Warrant Exercise Agreement (or any
amendment, modification or waiver thereof) relating to warrants to purchase Ordinary Shares represented by ADSs issued concurrently with
Existing Warrants held by an Other Holder, is or will be more favorable to such Other Holder than those of the Holder and this letter
agreement, unless such terms are concurrently offered to the Holder. If, and whenever on or after the date hereof until six (6) months
after the date hereof, the Company enters into an Other Warrant Exercise Agreement relating to warrants to purchase Ordinary Shares represented
by ADSs issued concurrently with the Existing Warrants, then (i) the Company shall provide notice thereof to the Holder promptly following
the occurrence thereof and (ii) the terms and conditions of this letter agreement shall be, without any further action by the Holder
or the Company, automatically be amended and modified in an economically and legally equivalent manner such that the Holder shall receive
the benefit of the more favorable terms and/or conditions (as the case may be) set forth in such Other Warrant Exercise Agreement (including
the issuance of additional Warrant Shares), provided that, upon written notice to the Company at any time, the Holder may elect not to
accept the benefit of any such amended or modified term or condition, in which event the term or condition contained in this letter agreement
shall apply to the Holder as it was in effect immediately prior to such amendment or modification as if such amendment or modification
never occurred with respect to the Holder. The provisions of this paragraph shall apply similarly and equally to each such Other Warrant
Exercise Agreement.
*****
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Sincerely
yours, |
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TC
BIOPHARM (HOLDINGS) PLC |
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By:
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Name:
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Title: |
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[Holder
Signature Page Follows]
Accepted
and Agreed to:
Name
of Holder: ________________________________________________________
Signature
of Authorized Signatory of Holder: _________________________________
Name
of Authorized Signatory: _______________________________________________
Title
of Authorized Signatory: ________________________________________________
Number
of Existing Warrants:
1.
2.
3.
Aggregate
Exercise Price of Holder’s Existing Warrants being exercised contemporaneously with signing this letter agreement: $_________________
Existing
Warrants Beneficial Ownership Blocker:
1. |
☐
4.99% or ☐ 9.99% |
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2.
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☐
4.99% or ☐ 9.99% |
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3.
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☐
4.99% or ☐ 9.99% |
New
Warrants: (200% of total Existing Warrants being exercised): ___________
New
Warrants Beneficial Ownership Blocker: ☐ 4.99% or ☐ 9.99%
DTC
Instructions:
[Holder
signature page to TCBP Inducement Offer]
Annex
A
Representations,
Warranties and Covenants of the Company. The Company hereby makes the following representations and warranties to the Holder:
a) |
SEC
Reports. The Company has filed all reports, schedules, forms, statements and other documents required to be filed by the Company
under the Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (or such
shorter period as the Company was required by law or regulation to file such material) (the foregoing materials, including the exhibits
thereto and documents incorporated by reference therein “SEC Reports”). As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the Exchange Act and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company has never
been an issuer subject to Rule 144(i) under the Securities Act. |
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b) |
Authorization;
Enforcement. The Company has the requisite corporate power and authority to enter into and to consummate the transactions contemplated
by this letter agreement and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of this
letter agreement by the Company and the consummation by the Company of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of the Company and no further action is required by the Company, its board of directors or its
stockholders in connection therewith. This letter agreement has been duly executed by the Company and, when delivered in accordance
with the terms hereof, will constitute the valid and binding obligation of the Company enforceable against the Company in accordance
with its terms, except (i) as limited by general equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium
and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating
to the availability of specific performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law. |
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c) |
No
Conflicts. The execution, delivery and performance of this letter agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not and will not: (i) conflict with or violate any provision of the Company’s certificate
or articles of incorporation, bylaws or other organizational or charter documents; or (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default) under, result in the creation of any liens, claims,
security interests, other encumbrances or defects upon any of the properties or assets of the Company in connection with, or give
to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of,
any material agreement, credit facility, debt or other material instrument (evidencing Company debt or otherwise) or other material
understanding to which such Company is a party or by which any property or asset of the Company is bound or affected; or (iii) conflict
with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court
or governmental authority to which the Company is subject (including federal and state securities laws and regulations), or by which
any property or asset of the Company is bound or affected, except, in the case of each of clauses (ii) and (iii), such as could not
have or reasonably be expected to result in a material adverse effect upon the business, prospects, properties, operations, condition
(financial or otherwise) or results of operations of the Company, taken as a whole, or in its ability to perform its obligations
under this letter agreement. |
d) |
Registration
Obligations. Within 30 calendar days after the Closing, the Company shall file a registration statement on Form F-3 (or other
appropriate form if the Company is not then F-3 eligible) providing for the resale of the Ordinary Shares represented by the New
Warrant ADSs by the holders of the New Warrants (the “Resale Registration Statement”). The Company shall use commercially
reasonable efforts to cause the Resale Registration Statement to become effective within 90 calendar days following the Closing Date
and to keep the Resale Registration Statement and the F-6 Registration Statement effective at all times until no holder of the New
Warrants owns any New Warrants or New Warrant ADSs. |
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e) |
Trading
Market. The transactions contemplated under this letter agreement comply with all the rules and regulations of the Nasdaq Capital
Market. |
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f) |
Filings,
Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization or order of, give any notice
to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person
in connection with the execution, delivery and performance by the Company of this letter agreement, other than: (i) the filings required
pursuant to this letter agreement; (ii) application(s) or notice to each applicable Trading Market for the listing of the New Warrants
and New Warrant ADSs for trading thereon in the time and manner required thereby, and (iii) the filing of Form D with the Commission
and such filings as are required to be made under applicable state securities laws. |
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g) |
Listing
of ADSs. The Company hereby agrees to use best efforts to maintain the listing or quotation of the ADSs on the Trading Market
on which it is currently listed, and concurrently with the Closing, the Company shall apply to list or quote all of the New Warrant
ADSs on such Trading Market and promptly secure the listing of all of the New Warrant ADSs on such Trading Market. The Company further
agrees, if the Company applies to have the ADSs listed on any other Trading Market, it will then include in such application all
of the New Warrant ADSs, and will take such other action as is necessary to cause all of the New Warrant ADSs to be listed or quoted
on such other Trading Market as promptly as possible. The Company will then take all action reasonably necessary to continue the
listing and trading of its ADSs on a Trading Market and will comply in all respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of the Trading Market. The Company agrees to maintain the eligibility of the ADSs for
electronic transfer through the Depository Trust Company or another established clearing corporation, including, without limitation,
by timely payment of fees to the Depository Trust Company or such other established clearing corporation in connection with such
electronic transfer. |
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h) |
Subsequent
Equity Sales. |
(i)
From the date hereof until forty five (45) days after the Closing Date, neither the Company nor any Subsidiary shall (A) issue,
enter into any agreement to issue or announce the issuance or proposed issuance of any ADSs, Ordinary Shares or Ordinary Share Equivalents
or (B) file any registration statement or any amendment or supplement to any existing registration statement, other than the Resale Registration
Statement referred to herein. Notwithstanding the foregoing, this Section (h)(i) shall not apply in respect of an Exempt Issuance. “Exempt
Issuance” means the issuance of (a) Ordinary Shares, ADSs or options to employees, officers or directors of the Company pursuant
to any stock or option plan duly adopted for such purpose, which issuance was approved by a majority of the non-employee members of the
Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered
to the Company, (b) warrants to the Placement Agent in connection with the transactions pursuant to this letter agreement (the “Placement
Agent Warrants”) and any securities upon exercise of the Placement Agent Warrants and any Ordinary Shares and/or ADSs issuable
upon the exercise or exchange of or conversion of any securities issued hereunder and/or other securities exercisable or exchangeable
for or convertible into ADSs and/or Ordinary Shares issued and outstanding on the date of this letter agreement, provided that such securities
have not been amended since the date of this letter agreement to increase the number of such securities or to decrease the exercise price,
exchange price or conversion price of such securities (other than in connection with stock splits or combinations) or to extend the term
of such securities, and (c) securities issued pursuant to acquisitions or strategic transactions approved by a majority of the disinterested
directors of the Company, provided that such securities are issued as “restricted securities” (as defined in Rule 144) and
carry no registration rights that require or permit the filing of any registration statement in connection therewith during the prohibition
period this Section (h)(i), and provided that any such issuance shall only be to a Person (or to the equityholders of a Person) which
is, itself or through its subsidiaries, an operating company or an owner of an asset in a business synergistic with the business of the
Company and shall provide to the Company additional benefits in addition to the investment of funds, but shall not include a transaction
in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing
in securities. “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, for purposes of this Section (h)(i).
(ii)
From the date hereof until one (1) year following the Closing Date, the Company shall be prohibited from effecting or entering into an
agreement to effect any issuance by the Company nor any Subsidiary of ADSs, Ordinary Shares or Ordinary Share Equivalents (or a combination
of units thereof) involving a Variable Rate Transaction. “Variable Rate Transaction” means a transaction in which
the Company (i) issues or sells any debt or equity securities that are convertible into, exchangeable or exercisable for, or include
the right to receive, additional ADSs and/or Ordinary Shares either (A) at a conversion price, exercise price or exchange rate or other
price that is based upon, and/or varies with, the trading prices of or quotations for the ADSs and/or Ordinary Shares at any time after
the initial issuance of such debt or equity securities or (B) with a conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such debt or equity security or upon the occurrence of specified or contingent
events directly or indirectly related to the business of the Company or the market for the ADSs and/or Ordinary Shares or (ii) enters
into, or effects a transaction under, any agreement, including, but not limited to, an equity line of credit or an “at-the-market
offering”, whereby the Company may issue securities at a future determined price, regardless of whether shares pursuant to such
agreement have actually been issued and regardless of whether such agreement is subsequently canceled; provided, however,
that, after six (6) months following the Closing Date, the entry into and/or issuance of ADSs in an “at the market” offering
with the Placement Agent as sales agent shall not be deemed a Variable Rate Transaction. The Holder shall be entitled to obtain injunctive
relief against the Company to preclude any such issuance, which remedy shall be in addition to any right to collect damages.
i) |
Form
D; Blue Sky Filings. If required, the Company agrees to timely file a Form D with respect to the New Warrants and New Warrant
ADSs as required under Regulation D and to provide a copy thereof, promptly upon request of any Purchaser. The Company shall take
such action as the Company shall reasonably determine is necessary in order to obtain an exemption for, or to qualify the New Warrants
and New Warrant ADSs for, sale to the Holder at Closing under applicable securities or “Blue Sky” laws of the states
of the United States, and shall provide evidence of such actions promptly upon request of any Holder. |
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j) |
Capital
Changes. From the date hereof until forty five (45) days after the Closing Date, the Company shall
not undertake a reverse or forward stock split or reclassification of the Ordinary Shares or the ADSs without the prior written consent
of the Holder. |
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