Sales Agreement
On March 16, 2018, the Company entered into an Open Market Sale Agreement (the “Sales Agreement”) with Jefferies LLC (“Jefferies”) to sell common shares of the Company, par value of CHF 1/13 per share, with aggregate gross sales proceeds of up to $50,000,000, from time to time, through an at the market offering under which Jefferies will act as sales agent (the “Agent”). On August 7, 2019, the Company amended the Sales Agreement (the “Amendment”) to increase the offer and sale of the common shares by $25,000,000 for an aggregate offering price of up to $75,000,000.
Subject to the terms and conditions of the Sales Agreement, as amended, the Agent has agreed to use its commercially reasonable efforts, consistent with its normal trading and sales practices and applicable law and regulations, to sell all of the common shares so designated by the Company as agent in accordance with an instruction from the Company. The sales, if any, of the common shares under the Sales Agreement, as amended, will be made by any method permitted that is deemed an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act, or, with our prior consent, in negotiated transactions. The Sales Agreement, as amended, provides that the commission payable to the Agent for sales of common shares with respect to which the Agent acts as sales agent shall be up to 3.0% of the gross sales price for such common shares sold pursuant to the Sales Agreement, as amended. The Sales Agreement, as amended, contains customary representations and warranties of the parties and indemnification and contribution provisions under which the Company and the Agent have agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). The Agent and the Company have the right, by giving written notice as specified in the Sales Agreement, as amended, to terminate the Sales Agreement, as amended.
The offering has been registered under the Securities Act pursuant to the Company’s shelf registration statement onForm F-3, asamended (No. 333-222820), as supplemented by the Prospectus Supplement dated March 16, 2018 and the Prospectus Supplement dated August 7, 2019, relating to the sale of the common shares.
The foregoing description of the Sales Agreement is not complete and is qualified in its entirety by reference to the full text of such agreement, a copy of which was filed as Exhibit 1.1 to our Report on Form6-K filed with the U.S. Securities and Exchange Commission on March 16, 2018 and is incorporated by reference herein. The foregoing description of the Amendment is qualified in its entirety by reference to the full text of such amendment, which is filed herewith as Exhibit 1.1 to this Report on Form6-K and is incorporated by reference herein.
A copy of the opinion of Lenz & Staehelin relating to the validity of the securities to be issued pursuant to the Sales Agreement is filed herewith as Exhibit 5.1
Exhibits
Reference is made to the Exhibit Index included hereto.
