As filed with the Securities and Exchange Commission on February 7, 2003
Registration No. 333-______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TRINITY BIOTECH PLC
(Exact name of registrant as specified in its charter)
Republic of Ireland None
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification Number)
IDA Business Park
Bray, Co. Wicklow
Ireland
011 353 1 276 9800
(Address and telephone number of Registrant's principal executive office)
Alan J. Bernstein, Esq.
Carter, Ledyard & Milburn
2 Wall Street
New York, New York 10005
(212) 732-3200
(Name, address and telephone number of agent for service)
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Copies to:
Alan J. Bernstein, Esq.
Carter, Ledyard &Milburn
2 Wall Street
New York, New York10005
(212) 732-3200
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Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective, as determined
by market conditions and other factors.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, check the following box. /x/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
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Proposed
Title of each class of securities maximum Proposed Amount of
to be registered Amount to be offering price per maximum aggregate registration
registered share(1) offering price(1) fee
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Class A Ordinary Shares, nominal 4,133,333 $1.675 $6,923,332.70 $637
value $.0109
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(1) Estimated solely for the purpose of computing the amount of the registration
fee in accordance with Rule 457(c) under the Securities Act of 1933, on the
basis of the average of the high and the low prices ($1.75 and $1.60,
respectively) of one ADR representing one Class A Ordinary Share as reported
by Nasdaq on February 5, 2003
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The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429 under the Securities Act of 1933, the prospectus
herein is being filed as a combined prospectus satisfying the requirements of
that Act and the rules and regulations thereunder for the registrant's offering
registered on its Registration Statement on Form F-3, Registration No.
333-11360. Accordingly, this Registration Statement being currently filed shall
act, upon effectiveness, as a post-effective amendment to the said earlier
Registration Statement.
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PROSPECTUS
Subject to Completion, dated February 7, 2003
4,467,034 Class A Ordinary Shares
TRINITY BIOTECH PLC
Class A Ordinary Shares Represented by American Depositary Receipts
The American Depositary Receipts of Trinity Biotech trade in the United
States on the Nasdaq SmallCap Stock Market under the symbol "TRIB." On February
5, 2003, the last reported sale price of an American Depositary Receipt of
Trinity Biotech, as reported by Nasdaq, was $1.67.
These American Depositary Receipts are being sold by the selling
shareholders named in this prospectus on terms fixed at the time of the sale.
See "Summary of Risks" beginning on page 5 to read about certain
factors you should consider before buying American Depositary Receipts.
----------------
Neither the Securities and Exchange Commission nor any other regulatory
body has approved or disapproved of these securities or passed upon the accuracy
or adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
Prospectus dated February ___, 2003.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities, and it is not soliciting an offer to buy these
securities, in any state where the offer or sale is not permitted.
Table of Contents
About Trinity Biotech.....................................................2
Where You Can Find More Information.......................................2
Enforceability of Civil Liabilities Against Foreign Persons...............3
Currency Translation......................................................4
Notice Regarding Forward-Looking Statements...............................4
Summary of Risks..........................................................5
Recent Developments.......................................................8
Use of Proceeds..........................................................10
Selling Shareholders.....................................................11
Plan of Distribution.....................................................12
Legal Matters............................................................14
Experts..................................................................14
About Trinity Biotech
Trinity Biotech plc, an Irish public limited company, was formed in
January 1992 to acquire, develop, manufacture and market rapid and laboratory
based diagnostic tests for the detection of various infectious diseases and
other medical conditions. In addition, we manufacture and market diagnostic
tests through our U.S. subsidiaries, Trinity Biotech (USA) Corp., MarDx
Diagnostics Inc. and Trinity Biotech Distribution, Inc. (f/k/a Biopool U.S.,
Inc.). Our address is IDA Business Park, Bray, Co. Wicklow, Ireland, telephone
number 011 353 1 276 9800.
Where You Can Find More Information
We file annual and special reports and other information with the SEC.
You may read and copy any document we file at the SEC's public reference rooms
in Washington, D.C., New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference rooms.
-2-
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus, and later information that we file
with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until the selling shareholders sell all the shares. This
prospectus is part of a registration statement we filed with the SEC
(Registration No 333-______).
o Annual Report on Form 20-F for the year ended December 31, 2001
o Report on Form 6-K for the period ended June 30, 2002, filed on
February 7, 2003
You may request a copy of these filings, at no cost, by writing or
telephoning us at the following address:
Corporate Secretary
Trinity Biotech plc
IDA Business Park
Bray, Co. Wicklow
Ireland
011 353 1 276 9800
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. You should not assume that the
information in this prospectus or any supplement is accurate as of any date
other than the date on the front of those documents.
Trinity is a "foreign private issuer" as defined in Rule 3b-4 under the
Securities Exchange Act of 1934. As a result, our proxy solicitations are not
subject to the disclosure and procedural requirements of Regulation 14A under
the Exchange Act and transactions in Trinity's equity securities by its officers
and directors are exempt from Section 16 of the Exchange Act. In addition,
Trinity is not required under the Exchange Act to file periodic reports and
financial statements as frequently or as promptly as U.S. companies whose
securities are registered under the Exchange Act.
Our ADRs are listed for quotation on the Nasdaq SmallCap Market, and
reports and other information filed by us can be inspected at the offices of
Nasdaq. Each ADR represents one Class A Ordinary Share of Trinity.
Enforceability of Civil Liabilities Against Foreign Persons
We are a public limited company organized under the laws of the
Republic of Ireland. Several of our directors and officers and certain experts
named in the registration statement are residents of Ireland or other non-U.S.
jurisdictions. Substantial portions of the assets of these persons and of
Trinity are located in Ireland or other non-U.S. jurisdictions.
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We have appointed Alan Bernstein of Carter, Ledyard & Milburn as our
agent to receive service of process in any legal action against us. However, it
may not be possible for investors to effect service of process upon Trinity or
its non-U.S. directors, officers or experts named in the registration statement
or to enforce any judgment obtained against these persons in U.S. courts. Also,
it may not be possible to enforce U.S. securities laws or judgments obtained in
U.S. courts against these persons in a non-U.S. jurisdiction.
Currency Translation
Trinity publishes its financial statements in United States dollars.
Unless otherwise specified, all references to "U.S. dollars", "dollars", "$" or
"U.S. $" are to United States dollars and references to "Euro," or "(euro)" are
to the European Euro. This prospectus contains translations of certain Euro
amounts into U.S. dollars at a specified rate. U.S. dollar equivalent
information for Euros is based on the Interbank rate for September 30, 2002. The
average exchange rate for January 31, 2003 was U.S. $1.0815 per 1 Euro. No
representation is made that the Euro or U.S. dollar amounts shown in this
prospectus could have been or could be converted into U.S. dollars or Euros, as
the case may be, at any particular rate or at all.
Notice Regarding Forward-Looking Statements
This prospectus and the documents incorporated in it by reference
contain forward-looking statements which involve known and unknown risks and
uncertainties. We include this notice for the express purpose of permitting
Trinity to avail itself of the protections of the safe harbor provided by the
Private Securities Litigation Reform Act of 1995 for all such forward looking
statements. Examples of forward-looking statements include: (1) projections of
capital expenditures, revenues, growth, prospects, financial resources and other
financial matters; (2) statements of our plans or objectives; and (3) statements
using the words "anticipate," "believe," "estimate," "expect," "may," "intend,"
"plan," "project," "understand" and other verbs suggesting uncertainty.
Our ability to predict results of Trinity's operations or the effects
of certain events on Trinity's operating results is inherently uncertain.
Therefore, we caution you to consider carefully the matters described under the
caption "Summary of Risks" and certain other matters discussed in this
prospectus, the documents incorporated by reference in this prospectus, and
other publicly available sources. Such risks and many other factors beyond the
control of Trinity's management could cause the actual results, performance or
achievements of Trinity to be materially different from any future results,
performance or achievements that may be expressed or implied by the
forward-looking statements.
-4-
Summary of Risks
Before you invest in our shares, you should be aware that there are
various risks, including those described below. You should consider carefully
these risks together with all of the other information included in this
prospectus before you decide to purchase our shares.
Potential Fluctuations in Results
o Trinity's operating results may fluctuate as a result of many factors
including size and timing of orders, the competitive conditions in the
industry, loss of significant customers, delays in the development of
new products, currency fluctuations and general economic conditions.
Future Need for Capital
o Up to now Trinity has funded its operations through the sale of its
shares and securities convertible into shares, revenues from operations
and bank borrowings. In addition to our regular expenses, we are
obligated to repay two promissory notes described below in the section
"Recent Developments - Sale of Convertible Notes" beginning in the year
2004. The proceeds of the notes were used to make the purchase price
payment for the asset acquisition on November 27, 2002 described below
in the section "Recent Developments - Acquisitions". The total amount
for these payments is approximately $4 million (including interest).
Also, we will have to make the future purchase price payments described
below in the section "Recent Developments - Acquisitions". We expect
that our current working capital and sales revenues will fund our
operations and payment obligations for the foreseeable future. However,
if our capital requirements are greater than expected, or if our
revenues are not sufficient to fund our operations, we may need to find
additional financing which may not be available on attractive terms or
at all. Any future financing could have an adverse effect on our
current shareholders or the price of our shares in general.
Uncertainty of Product Development
o The diagnostic test industry is characterized by ongoing technological
developments and changing customer requirements. As a result, Trinity's
success and continued growth depend, in part, on its ability in a
timely manner to develop or acquire rights to, and successfully
introduce into the marketplace, enhancements of existing products or
new products that incorporate technological advances, meet customer
requirements and respond to products developed by Trinity's
competition. There can be no assurance that Trinity will be successful
in developing or acquiring such rights to products on a timely basis or
that such products will adequately address the changing needs of the
marketplace.
Changing Market Conditions
o The healthcare industry is in transition with a number of changes that
affect the market for diagnostic test products. Changes in the
healthcare industry delivery system have resulted in major
consolidation among reference laboratories and in the formation of
multi-hospital alliances, reducing the number of institutional
customers for diagnostic test products. There can be no assurance that
Trinity will be able to enter into and/or sustain contractual or other
marketing or distribution arrangements on a satisfactory commercial
basis with these institutional customers.
-5-
Uncertainty of Government Regulatory Approvals
o Sales of our products are subject to regulation by health authorities
in countries where they are marketed. We must obtain regulatory
approval for any products which are successfully developed prior to
their commercial sale. These approvals may take several years and may
never be obtained.
Dependence Upon Sales to Major Customer
o During the one year period ended December 31, 2001 and the nine months
ended September 30, 2002, approximately 27% and 20% respectively of
Trinity's revenues were derived from a distribution agreement between
our U.S. subsidiaries and Carter Wallace, Inc. In 2001, Carter Wallace
was acquired by Medpointe, Inc. The loss or interruption of the
distribution agreements with Carter Wallace could be expected to have a
material adverse effect on Trinity.
Dependence on Key Personnel
o Trinity's success is dependent on certain key management personnel.
Competition for qualified employees among biotechnology companies is
intense, and the loss of key personnel, or the inability to attract and
retain the additional highly skilled employees required for the
expansion of our activities, could adversely affect our business.
Market Competition and Technological Obsolescence
o The diagnostics industry is extremely competitive. Trinity is competing
directly with companies which have greater capital resources and larger
marketing and business organizations than Trinity. Trinity's ability to
grow revenue and earnings may be adversely impacted by competitive
product and pricing pressures and by its inability to gain or retain
market share as result of the action of competitors. The Company has
significantly invested in research and development but there can be no
guarantees that its R&D programs will not be rendered technologically
obsolete or financially non-viable by the technological advances of its
competitors.
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Ongoing Litigation
o On December 19, 2002, Trinity filed a lawsuit against Xtrana, Inc. in
the United States District Court for the Southern District of New York
in connection with an Asset Purchase Agreement entered into between
Trinity and Xtrana on November 9, 2001. After the Asset Purchase
Agreement was finalized, Xtrana entered into a consent judgment with
Instrumentation Laboratories ("IL") in which it admitted that one of
the products listed in the Asset Purchase Agreement (identified as
"Bioclot") infringed on patents held by IL. Trinity has asserted claims
against Xtrana for breach of contract, breach of the implied covenant
of good faith and fair dealing, unjust enrichment, common law fraud,
negligent misrepresentation and violation of the Delaware Consumer
Fraud Act as a result of misrepresentations made by Xtrana regarding
the IL lawsuit and for entering into the consent judgment. Trinity
seeks not less than $1,200,000 for each of its claims and punitive
damages not less than $3,000,000 on its claims for common law fraud and
violation of the Delaware Consumer Fraud Act. On or about January 17,
2003, Xtrana filed counterclaims for tortious interference with
prospective economic advantage, breach of contract for failure to pay
promissory notes in connection with the Asset Purchase Agreement,
breach of covenant of good faith and fair dealing and seeking a
declaratory judgment that Trinity is obligated to make payments under
the promissory notes. Xtrana seeks not less than $27,000,000 for each
of its claims and punitive damages not less than $30,000,000 on its
claims for tortious interference and breach of covenant of good faith
and fair dealing. Management sees no valid basis for alleging damages
against Trinity.
Patent Protection
o We can provide no assurance that the patents Trinity may apply for will
be obtained or that existing patents will not be challenged. The
patents owned by Trinity and its subsidiaries may be challenged by
third parties through litigation and could adversely affect the value
of our patents. We can provide no assurance that our patents will
continue to be commercially valuable.
o Also, our technologies could be subject to claims of infringement of
patents or proprietary technology owned by others. The cost of
enforcing our patent and technology rights against infringers or
defending our patents and technologies against infringement charges by
others may be high and could adversely affect our business.
o Trade secrets and confidential know-how are important to our scientific
and commercial success. Although we seek to protect our proprietary
information through confidentiality agreements and other contracts, we
can provide no assurance that others will not independently develop the
same or similar information or gain access to our proprietary
information.
-7-
Dependence Upon Suppliers
o The primary raw materials required for Trinity's test kits consist of
antibodies, antigens or other reagents, glass fibre and packaging
materials to be acquired from third parties. Although Trinity does not
expect to be dependent upon any one source for these raw materials,
alternative sources of antibodies with the specificity and sensitivity
desired by Trinity may not be available. Such unavailability could
affect the quality of our products and our ability to meet orders for
specific products.
Risk of Product Liability
o Trinity may be subject to claims for personal injuries or other damages
resulting from its products or services. There can be no assurance that
our product liability insurance is sufficient to protect us against
liability that could have a material adverse effect on our business.
Risk of Foreign Exchange Fluctuations
o Trinity records its transactions and prepares its financial statements
in U.S. dollars. A substantial portion of our expenses are denominated
in Euros. However, Trinity's revenues are primarily denominated in U.S.
dollars. As a result, we are affected by fluctuations in currency
exchange rates, especially the exchange rate between the U.S. dollar
and the Euro. Fluctuations between these and other exchange rates may
adversely affect our earnings and assets.
Penny Stock Regulations and Restrictions on Marketability
o SEC regulations concerning "penny stock" apply to our shares. These
regulations impose sales practice requirements on broker-dealers who
sell our shares to persons other than established customers and
"accredited investors" as defined in SEC regulations. For transactions
covered by the regulations, broker-dealers must make a suitability
determination and receive a written agreement from the purchaser prior
to the sale. These regulations may affect the ability of broker-dealers
to sell our shares in the secondary market and thus adversely affect
our share price.
Recent Developments
Sale of Convertible Notes
On November 27, 2002, we issued Convertible Notes with an aggregate
principal amount of $3,500,000 and warrants to purchase an aggregate of 50,000
of our Class A Ordinary Shares for an aggregate sale price of $3,500,000 to The
Tail Wind Fund Ltd. and Solomon Strategic Holdings, Inc., $1,000,000 of which
was paid for through the surrender of a debenture issued to The Tail Wind Fund
Ltd. in 1999. The Notes are divided into two tranches, designated Tranche A, in
the principal amount of $2,500,000, and Tranche B, in the principal amount of
$1,000,000. Tranche A matures on July 2, 2007 and Tranche B matures on December
31, 2005. Tranche A bears annual interests at the rate of 5.25%, unless Trinity
is unable to grant a mortgage for the benefit of the investors on a recently
acquired facility in Lemgo, Germany by March 12, 2003, in which event Tranche A
shall bear annual interest at the rate of 6.00%. Tranche B bears annual
interests at the rate of 6.00%. Trinity shall pay the interest accrued under
both tranches quarterly in arrears on the first business day of each consecutive
calendar quarter beginning on January 2, 2003.
-8-
Commencing January 2, 2004, Trinity is required to repay quarterly in
the aggregate U.S. $200,000 in principal amount plus accrued interest due under
Tranche A of the Notes, either in cash or in Class A Ordinary Shares at
Trinity's option, subject to certain exceptions.
The Notes are convertible into our Class A Ordinary Shares. The holders
of the Notes may exercise this right to convert at any time and from time to
time before we repay the Notes. The number of shares to be received upon
conversion is calculated by dividing the amount of the Notes being converted by
$1.50. However, if Trinity does not grant the above described mortgage by March
12, 2002, this conversion price will be $1.25.
As part of the sale of the Notes, we issued Warrants to buy 50,000 of
our Class A Ordinary Shares to the purchasers of the Notes. These Warrants allow
the purchasers to buy these shares at $1.50 each any time until November 27,
2007. However, if Trinity does not grant the above described mortgage by March
12, 2003, this exercise price shall be $1.25. In addition, The Tail Wind Fund
Ltd. still holds a five year warrant issued to it on December 27, 1999 which
grants the right to purchase 333,701 shares. The resale of these shares has been
registered under a registration statement on Form F-3, Registration No.
333-11360.
We agreed to file a registration statement with the SEC covering the
public sale of 175% of the shares which we may issue if the Notes are converted
in full and 100% of the shares issuable upon full exercise of the Warrants. Such
registration statement also covers shares issued in payment of principal or
interest on the Notes. This prospectus forms a part of that registration
statement. We agreed to use our best efforts to have this registration statement
declared effective by the SEC. If (i) after the registration statement has been
declared effective, sales cannot be made for any reason, (ii) the ADRs to be
registered are not listed on the Nasdaq National or SmallCap Market, the New
York State Exchange, or the American State Exchange, or (iii) Trinity does not
issue the shares upon conversion of the Notes or exercise of the Warrants,
Trinity must pay liquidated damages in an amount equal to 2% of the principal
outstanding with the Notes after and as long as one of these events have
occurred and continue.
Acquisitions
Effective as of November 27, 2002, Trinity and several of its
subsidiaries acquired from Sigma certain assets of its clinical chemistry and
cardiac chemistry business lines for a total purchase price of $4,350,000, of
which $2,540,000 was paid on November 27, 2002, $1,010,000 is payable on May 27,
2003 and $800,000 is payable on November 27, 2003.
-9-
Effective as of August 26, 2002, Trinity and several of its
subsidiaries acquired from Sigma Diagnostics, Inc., a Missouri based company,
certain assets of Sigma's coagulation business line, including Sigma's
coagulation products facility in Amelung, Germany, for a total purchase price of
$1,300,000.
In December 2001, Trinity acquired the assets and goodwill of the
Biopool hemostasis business of Biopool US Inc. for a consideration of $6.3
million before costs comprising US$3.7 million in cash and $2.6 million in
deferred consideration. The first installment of the deferred consideration in
the amount of $0.9 million was paid recently and two additional installments of
$1.1 million and $0.6 million are payable on December 21, 2003 and 2004,
respectively.
Use of Proceeds
Trinity will not receive any additional proceeds from the sale of the
shares offered by this prospectus. However, we will receive the proceeds of any
exercise of the Warrants as discussed above for cash, which proceeds will be
used for working capital and general corporate purposes. If the investors
exercise all of the Warrants, Trinity would receive proceeds of $75,000 if the
exercise price of $1.50 applies and $62,500 if the exercise price of $1.25
applies.
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Selling Shareholders
Number of Shares Number of Shares Number of Shares
Name of Shareholder Beneficially Owned Being Offered Owned After Offering
------------------- ------------------ ------------- --------------------
The Tail Wind Fund Ltd. 2,373,701(1) 3,873,701(3) 0
Solomon Strategic 343,334(2) 593,333(4) 0
Holdings Inc.
(1) Includes 2,000,000 shares issuable upon conversion of the
Notes issued to the selling shareholder on November 27, 2002,
40,000 shares issuable upon exercise of the Warrants issued to
the selling shareholder on November 27, 2002, and 333,701
shares issuable upon exercise of the five year warrant issued
to the selling shareholder on December 27, 1999, the resale of
which shares has been registered under the registration
statement on Form F-3, registration no. 333-11360.
(2) Includes 333,334 shares issuable upon conversion of the
Notes issued to the selling shareholder on November 27, 2002
and 10,000 shares issuable upon exercise of the Warrants
issued to the selling shareholder on November 27, 2002.
(3) Representing 175% of the shares issuable upon conversion
of the Notes issued to the selling shareholder on November 27,
2002, 100% of the shares issuable upon exercise of the
Warrants issued to the selling shareholder on November 27,
2002, and the shares issuable upon exercise of the five year
warrant issued to the selling shareholder on December 27,
1999.
(4) Representing 175% of the shares issuable upon conversion
of the Notes issued to the selling shareholder on November 27,
2002 and 100% of the shares issuable upon exercise of the
Warrants issued to the selling shareholder on November 27,
2002.
The table above represents the number of Class A Ordinary shares
beneficially owned by each selling shareholder assuming for each selling
shareholder the conversion of the Notes and exercise of the warrants described
above in "Recent Developments" at a conversion and exercise price of $1.50.
The registration statement of which this prospectus forms a part covers
up to 4,133,333 Class A Ordinary Shares represented by ADRs issued or issuable
upon conversion of, exchange for or in payment of principal or interest on, the
Notes issued to the selling stockholders and upon exercise of the Warrants
issued to the selling stockholders on November 27, 2002.
None of the selling shareholders has held any position, office or other
material relationship with Trinity or any of its affiliates within the past
three years other than as a result of his or its ownership of Trinity shares,
debentures or warrants. The shares may be offered from time to time by the
selling shareholders named above. However, the selling shareholders are under no
obligation to sell any portion of their shares. All information about share
ownership has been furnished by the selling shareholders. Because the selling
shareholders may sell all or part of their shares, no estimate can be given for
the number of shares that will be held by any selling shareholder upon
termination of this offering.
-11-
Plan of Distribution
Trinity is registering all of the shares on behalf of the selling
shareholders. "Selling shareholders," as used in this prospectus, includes
anyone who receives the shares from the named selling shareholders after the
date of this prospectus. The selling shareholders may sell their shares from
time to time. The selling shareholders will act independently of Trinity in
making decisions about the timing, manner and size of each sale. The selling
shareholders may sell shares on one or more exchanges or in the over-the-counter
market or otherwise, at prices and at terms then prevailing or at prices related
to the then current market price, or in negotiated transactions. The selling
shareholders may use one or more, or a combination, of the following methods to
sell their shares:
o purchases by a broker-dealer as principal and the resale by
such broker or dealer for its account pursuant to this
prospectus;
o ordinary brokerage transactions and transactions in which the
broker solicits purchasers;
o block trades in which the broker-dealer so engaged will
attempt to sell the shares as agent but may position and
resell a portion of the block as principal to facilitate the
transaction;
o in options transactions;
o for shares that qualify for resale under Rule 144 of the
Securities Act of 1933, or the Securities Act, under that rule
rather than this prospectus; or in privately negotiated
transactions; and/or
o in any other manner permitted under law.
The selling shareholders may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
these transactions, broker-dealers may engage in short sales of the shares in
the course of hedging the positions they assume with the selling shareholders.
The selling shareholders also may sell shares short and redeliver the shares to
close out these short positions. The selling shareholders may enter into option
or other transactions with broker-dealers which require the delivery to the
broker-dealer of the shares. The broker-dealer may then resell or otherwise
transfer these shares through this prospectus. The selling shareholders also may
loan or pledge the shares to a broker-dealer. The broker-dealer may sell the
shares so loaned, or upon a default the broker-dealer may sell the pledged
shares by use of this prospectus.
In effecting sales, broker-dealers engaged by the selling shareholders
may arrange for other broker-dealers to participate. Broker-dealers will receive
commissions or discounts from the selling shareholders in amounts to be
negotiated immediately prior to the sale. In offering the shares covered by this
prospectus, the selling shareholders and any broker-dealers who execute sales
for the selling shareholders may be deemed to be "underwriters" within the
meaning of the Securities Act in connection with such sales. Any profits
realized by the selling shareholders and the compensation of any broker-dealers
may be deemed to be underwriting discounts and commissions. Because the selling
shareholders may be deemed to be underwriters, they will be subject to the
prospectus delivery requirements of the Securities Act. The selling shareholders
have advised Trinity that they have not entered into any agreements,
understandings or arrangements with any underwriters or broker-dealers regarding
the sale of the shares. No underwriter or coordinating broker is acting in
connection with the selling shareholders' proposed sale of shares.
-12-
The selling shareholders will sell their shares only through registered
or licensed brokers or dealers if required under applicable state securities
laws. In addition, in some states the selling shareholders may not sell their
shares unless the shares have been registered or qualified for sale in the
applicable state or the selling shareholders comply with an available exemption
from the registration or qualification requirements.
Under applicable rules and regulations of the Securities Exchange Act
of 1934, or the Exchange Act, any person engaged in the distribution of the
shares may not simultaneously engage in market making activities with respect to
Trinity's common stock for a period of two business days before the commencement
of this distribution. In addition, the selling shareholders will be subject to
applicable provisions of the Exchange Act and the associated rules and
regulations under the Exchange Act, including Regulation M, which provisions may
limit the timing of the selling shareholders' purchases and sales of shares of
Trinity's common stock. Trinity will make copies of this prospectus available to
the selling shareholders and has informed the selling shareholders of the need
for delivery of copies of this prospectus to potential purchasers at or before
the time of any sale of the shares.
If Trinity enters into any material arrangement with a broker-dealer
for the sale of any shares offered by this prospectus, through a block trade,
special offering, exchange distribution or a purchase by a broker or dealer,
Trinity will file a supplement to this prospectus, if required, pursant to Rule
424(b) under the Securities Act, disclosing
o the name of the participating broker-dealer(s),
o the number of ADRs involved,
o the price at which such shares were sold,
o the commission paid or discounts or concessions allowed to the
broker-dealer(s), where applicable,
o whether the broker-dealer(s) conducted any investigation to
verify the information in or incorporated by reference in this
prospectus, and
o other material facts of the transaction.
Trinity has agreed to reimburse in certain circumstances the selling
shareholders against certain liabilities, including liabilities under the
Securities Act. The selling shareholders have agreed to reimburse in certain
circumstances Trinity and certain related persons against certain liabilities,
including liabilities under the Securities Act.
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Expenses of this offering (other than brokerage commissions) are
payable by Trinity and are estimated not to exceed $10,000. Trinity has also
agreed to indemnify certain of the selling shareholders and related persons
against certain liabilities, including liabilities under the Securities Act of
1933.
The last reported sale price per share for Trinity's ADRs on the Nasdaq
SmallCap Market was $1.67 per ADR on February 5, 2003.
Legal Matters
The validity of the shares will be passed upon for Trinity by O'Donnell
Sweeney, Dublin, Ireland.
Experts
Ernst & Young, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 20-F for the year
ended December 31, 2001, as set forth in their report, which is incorporated by
reference in this prospectus and elsewhere in the registration statement. Our
financial statements are incorporated by reference in reliance on Ernst &
Young's report, given on their authority as experts in accounting and auditing.
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4,467,034 Class A Ordinary Shares
TRINITY BIOTECH PLC
Class A Ordinary Shares Represented by American Depositary Receipts
You should rely only on the information contained in this prospectus. We have
not authorized anyone to provide you with information that is different. The
prospectus does not contain an offer to sell or the solicitation of an offer to
buy any securities other than the ordinary shares, or contain an offer to sell
or the solicitation of an offer to buy the ordinary shares in any circumstances
which would be unlawful. By delivering this prospectus to you and by selling the
ordinary shares with it, we do not mean to imply that no change has occurred in
the affairs of Trinity Biotech since the date of this prospectus or that the
information contained in this prospectus is correct as of any time after that
date.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Trinity's Articles of Association provide that every Director, Managing
Director, agent secretary or other officer of Trinity shall be entitled to be
indemnified out of the assets of Trinity against all losses or liabilities which
he may sustain or incur in or about the execution of the duties of his office or
otherwise in relation thereto, including any liability incurred by him in
defending any proceeding, whether civil or criminal, in which judgment is given
in his favor or in which he is acquitted, and no Director other officer shall be
liable for any loss, damage or misfortune which may happen to or be incurred by
Trinity in the execution of the duties of his office or in relation thereto.
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Item 9. Exhibits.
Exhibit
Number Description of Exhibit
------ ----------------------
5 Opinion of O'Donnell Sweeney
23.1 Consent of Ernst & Young, Independent Auditors, Dublin, Ireland.
23.2 Consent of O'Donnell Sweeney (contained in Exhibit 5).
24 Power of Attorney (included in the signature page of this Registration Statement)
99.1 Purchase Agreement dated November 27, 2007 among Trinity Biotech plc, The Tail Wind Fund
Ltd., and Solomon Strategic Holdings, Inc.
99.2 Convertible Note of Trinity Biotech plc in the Original Principal Amount of US$3,000,000
issued on November 27, 2002 to The Tail Wind Fund Ltd.
99.3 Convertible Note of Trinity Biotech plc in the Original
Principal Amount of US$500,000 issued on November 27, 2002
to Solomon Strategic Holdings, Inc.
99.4 Registration Rights Agreement by and among Trinity Biotech plc, The Tail Wind Fund Ltd.,
and Solomon Strategic Holdings, Inc., dated November 27, 2002.
99.5 Warrant of The Tail Wind Fund Ltd. to Purchase 40,000 Class A Ordinary Shares of Trinity
Biotech plc, dated November 27, 2002.
99.6 Warrant of Solomon Strategic Holdings, Inc. to Purchase 10,000 Class A Ordinary Shares of
Trinity Biotech plc, dated November 27, 2002.
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Item 10. Undertakings.
The undersigned Registrant hereby undertakes as follows:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (i) and (ii) above do not apply if
the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4) To file a post-effective amendment to this Registration Statement to
include any financial statements required by Rule 319 of Regulation S-X
at the start of any delayed offering or throughout a continuous
offering, provided that a post-effective amendment need not be filed to
include financial statements and information required by Section
10(a)(3) of the Securities Act or Rule 31a of Regulation S-X if such
financial statement and information are contained in periodic reports
filed with or furnished to the Commission by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated
by reference in this Registration Statement.
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(5) That, for purposes of determining any liability under the Securities
Act, each filing of the Registrant's annual report pursuant to Section
13(a) or 15(d) of the Exchange Act that is incorporated by reference in
this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(6) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(7) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the provisions referred to in Item 15, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the
Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form F-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Dublin, Ireland on the 7th day of February, 2003.
TRINITY BIOTECH PLC
By: /s/ Ronan O'Caoimah
---------------------------------------------
Ronan O'Caoimh
Chairman and Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes Ronan
O'Caoimh his true and lawful attorney-in-fact with full power to execute in the
name of such person, in the capacities stated below, and to file, such one or
more amendments to this Registration Statement as the Registrant deems
appropriate, and generally to do all such things in the name and on behalf of
such person, in the capacities stated below, to enable the Registrant to comply
with the provisions of the Securities Act of 1933, as amended, and all
requirements of the Securities and Exchange Commission thereunder, and hereby
ratifies and confirms the signature of such person as it may be signed by such
attorney-in-fact to any and all amendments to this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and the above power of attorney have been signed below by
the following persons in the capacities indicated on February 7, 2003.
Signature Title
--------- -----
/s/ Ronan O'Caoimh Chairman, Chief Executive Officer and Director
---------------------------------------------- (Principal Executive Officer)
Ronan O'Caoimh
/s/ Denis Burger Non-executive Director
---------------------------------------------- (Authorized U.S. representative)
Denis Burger
/s/ Brendan Farrell President and Director
----------------------------------------------
Brendan Farrell
/s/ James Walsh Chief Operating Officer and Director
----------------------------------------------
James Walsh
/s/ Rory Nealon Chief Financial Officer
----------------------------------------------
Rory Nealon
/s/ Peter Coyne Non-executive Director
----------------------------------------------
Peter Coyne
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EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
5 Opinion of O'Donnell Sweeney
23.1 Consent of Ernst & Young, Independent Auditors, Dublin, Ireland.
23.2 Consent of O'Donnell Sweeney (contained in Exhibit 5).
24 Power of Attorney (included in the signature page of this Registration Statement)
99.1 Purchase Agreement dated November 27, 2007 among Trinity Biotech plc, The Tail Wind Fund
Ltd., and Solomon Strategic Holdings, Inc.
99.2 Convertible Note of Trinity Biotech plc in the Original Principal Amount of US$3,000,000
issued on November 27, 2002 to The Tail Wind Fund Ltd.
99.3 Convertible Note of Trinity Biotech plc in the Original Principal Amount of US$500,000
issued on November 27, 2002 to Solomon Strategic Holdings, Inc.
99.4 Registration Rights Agreement by and among Trinity Biotech plc, The Tail Wind Fund Ltd.,
and Solomon Strategic Holdings, Inc., dated November 27, 2002.
99.5 Warrant of The Tail Wind Fund Ltd. to Purchase 40,000 Class A Ordinary Shares of Trinity
Biotech plc, dated November 27, 2002.
99.6 Warrant of Solomon Strategic Holdings, Inc. to Purchase 10,000 Class A Ordinary Shares of
Trinity Biotech plc, dated November 27, 2002.
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