Asfiled with the Securities and Exchange Commission on May 17, 2024
RegistrationNo. 333-
UNITEDSTATES
SECURITIESAND EXCHANGE COMMISSION
Washington,D.C. 20549
FORMF-1
REGISTRATIONSTATEMENT
UNDER
THESECURITIES ACT OF 1933
GeneticTechnologies Limited
(Exactname of registrant as specified in its charter)
Australia 2836 Not applicable
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
60-66Hanover Street
Fitzroy
Victoria3065 Australia
Tel:011613-9415-1135
(Address,including zip code, and telephone number, including area code, of
registrant's principal executive offices)
SimonMorriss
60-66Hanover Street
Fitzroy,Victoria, 3065, Australia
Tel:011613-9415-1135
(Name,address, including zip code, and telephone number, including area code,
of agent for service)
Copiesto:
Darrin M. Ocasio, Esq. Andrew Gaffney
Avital Perlman, Esq. K&L Gates
Sichenzia Ross Ference Carmel LLP Level 25, 525 Collins Street
1185 Avenue of the Americas, 31st Floor Melbourne, Victoria, 3000
New York, NY 10038 +61.3.9205.2000
(212) 930-9700
Approximatedate of commencement of proposed sale to the public:
As soon as practicable after this registration statement is declared effective.
Ifany of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under theSecurities Act of
1933, check the following box.
Ifthis Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the followingbox and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering.
Ifthis Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list theSecurities Act
registration statement number of the earlier effective registration statement
for the same offering.
Ifthis Form is a post-effective amendment filed pursuant to Rule 462(d) under
the Securities Act, check the following box and list theSecurities Act
registration statement number of the earlier effective registration statement
for the same offering.
Indicateby check mark whether the registrant is an emerging growth company as
defined in Rule 405 of the Securities Act of 1933.
Emerginggrowth company
Ifan emerging growth company that prepares its financial statements in
accordance with U.S. GAAP, indicate by check mark if the registranthas elected
not to use the extended transition period for complying with any new or
revised financial accounting standards† providedpursuant to Section
7(a)(2)(B) of the Securities Act.
Theregistrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until theregistrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effectivein accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the registration statement shall
become effectiveon such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
Theinformation in this preliminary prospectus is not complete and may be
changed. The selling shareholders may not sell these securitiesuntil the
registration statement filed with the Securities and Exchange Commission is
effective. This preliminary prospectus is not anoffer to sell these securities
and we are not soliciting an offer to buy these securities in any state or
jurisdiction where the offeror sale is not permitted.
PRELIMINARY PROSPECTUS SUBJECT TO COMPLETION DATED MAY 17, 2024
30,000,000Ordinary Shares represented by 1,000,000 American Depositary Shares
Thisprospectus relates to the resale, by the selling shareholders identified
in this prospectus, of up to an aggregate of 30,000,000 ordinaryshares, no par
value of Genetic Technologies Limited, represented by 1,000,000 American
Depository Shares, or ADSs, issuable upon theexercise of warrants issued in a
private placement on April 22, 2024 (the "Private Placement").
Theselling shareholders are identified in the table commencing on page 11.
Each ADS represents thirty (30) ordinary shares. No ADSs arebeing registered
hereunder for sale by us. We will not receive any proceeds from the sale of
the ADSs by the selling shareholders. Allnet proceeds from the sale of the
ordinary shares represented by ADSs covered by this prospectus will go to the
selling shareholders.However, we may receive the proceeds from any exercise of
warrants if the holders do not exercise the warrants on a cashless basis.
See"Use of Proceeds."
Theselling shareholders may sell all or a portion of the ordinary shares
represented by ADSs from time to time in market transactions throughany market
on which our ADSs are then traded, in negotiated transactions or otherwise,
and at prices and on terms that will be determinedby the then prevailing
market price or at negotiated prices directly or through a broker or brokers,
who may act as agent or as principalor by a combination of such methods of
sale. See "Plan of Distribution".
OurADSs are listed on the Nasdaq Capital Market, or Nasdaq, under the symbol
"GENE" and our ordinary shares are listed on theAustralian Securities
Exchange, or ASX, under the symbol "GTG." On May 17, 2024, the last reported
sale price of ourADSs are listed on the Nasdaq Capital Market was $2.28 per
ADS.
Thesecurities offered in this prospectus involve a high degree of risk. See
"Risk Factors" beginning on page 8 of this prospectusto read about factors you
should consider before purchasing any of our securities.
Neitherthe U.S. Securities and Exchange Commission, the ASX, any U.S. state
securities commission, nor any other foreign securities commissionhas approved
or disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contraryis a criminal offense.
Thedate of this prospectus is , 2024.
TABLEOF CONTENTS
About this Prospectus ii
Cautionary Statement Regarding Forward-Looking Statements iii
Prospectus Summary 1
Risk Factors 8
Use of Proceeds 9
Capitalization 10
Selling Shareholders 11
Description of Share Capital 12
Plan of Distribution 23
Legal Matters 25
Experts 25
Where You Can Find More Information 25
Incorporation By Reference 26
Enforceability of Civil Liabilities 27
i
ABOUTTHIS PROSPECTUS
Thisprospectus is part of a registration statement that we filed with the SEC.
As permitted by the rules and regulations of the SEC, theregistration
statement filed by us includes additional information not contained in this
prospectus. You may read the registration statementand the other reports we
file with the SEC at the SEC's website or its offices described below under
the heading "Where YouCan Find More Information".
Youshould rely only on the information that is contained in this prospectus or
that is incorporated by reference into this prospectus. Wehave not authorized
anyone to provide you with information that is in addition to or different
from that contained in, or incorporatedby reference into, this prospectus. If
anyone provides you with different or inconsistent information, you should not
rely on it.
Weare not offering to sell or solicit any security other than the ordinary
shares represented by ADSs offered by this prospectus. In addition,we are not
offering to sell or solicit any securities to or from any person in any
jurisdiction where it is unlawful to make this offerto or solicit an offer
from a person in that jurisdiction. The information contained in this
prospectus is accurate as of the date onthe front of this prospectus only,
regardless of the time of delivery of this prospectus or of any sale of our
ordinary shares. Our business,financial condition, results of operations and
prospects may have changed since that date.
Thisprospectus contains summaries of certain provisions contained in some of
the documents described herein, but reference is made to theactual documents
for complete information. All of the summaries are qualified in their entirety
by the actual documents. Copies of someof the documents referred to herein
have been filed, will be filed or will be incorporated herein by reference as
exhibits to the registrationstatement, and you may obtain copies of those
documents as described below under the section entitled "Where You Can Find
MoreInformation."
Ourfinancial statements are prepared and presented in accordance with
International Financial Reporting Standards ("IFRS") asissued by the
International Accounting Standards Board. Our historical results do not
necessarily indicate our expected results for anyfuture periods.
Marketdata and certain industry data and forecasts used throughout this
prospectus were obtained from sources we believe to be reliable, includingmarket
research databases, publicly available information, reports of governmental
agencies and industry publications and surveys. Wehave relied on certain data
from third-party sources, including internal surveys, industry forecasts and
market research, which we believeto be reliable based on our management's
knowledge of the industry. Forecasts are particularly likely to be inaccurate,
especiallyover long periods of time. In addition, we do not necessarily know
what assumptions regarding general economic growth were used in preparingthe
third-party forecasts we cite. Statements as to our market position are based
on the most currently available data. While we arenot aware of any
misstatements regarding the industry data presented in this prospectus, our
estimates involve risks and uncertaintiesand are subject to change based on
various factors, including those discussed under the heading "Risk Factors" in
this prospectus.
Certainfigures included in this prospectus have been subject to rounding
adjustments. Accordingly, figures shown as totals in certain tablesmay not be
an arithmetic aggregation of the figures that precede them.
Inthis prospectus, unless the context otherwise requires:
references to "ADSs" refer to American
Depositary Shares representing ordinary shares;
references to the "Company," "we," "our", "GTG" and "Genetic Technologies"
refer to Genetic Technologies Limited and its consolidated subsidiaries;
references to "dollars," "U.S. dollars,"
"USD" and "$" are to United States Dollars;
references to "ordinary shares," "our shares" and
similar expressions refer to our Ordinary Shares; and
references to the "SEC" are to the United
States Securities and Exchange Commission.
Wehave not taken any action to permit a public offering of the securities
outside the United States or to permit the possession or distributionof this
prospectus outside the United States. Persons outside the United States who
come into possession of this prospectus must informthemselves about and
observe any restrictions relating to the offering of the securities and the
distribution of this prospectus outsideof the United States.
ii
CAUTIONARYSTATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Thisprospectus contains statements that constitute forward-looking statements.
Many of the forward-looking statements contained in this prospectuscan be
identified by the use of forward-looking words such as "anticipate,"
"believe," "could," "estimate,""expect," "intend," "plan," "potential" and
"should," among others.
Forward-lookingstatements appear in a number of places in this prospectus and
include, but are not limited to, statements regarding our intent, belief,or
current expectations. Forward-looking statements are based on our management's
beliefs and assumptions and on information currentlyavailable to our
management. Such statements are subject to substantial risks and uncertainties,
and actual results may differ materiallyfrom those expressed or implied in the
forward-looking statements due to various important factors, including, but
not limited to, thoseidentified under "Risk Factors." In light of the
significant uncertainties in these forward-looking statements, you shouldnot
regard these statements as a guarantee by us or any other person that we will
achieve our objectives and plans in any specified timeframe, or at all.
Forward-lookingstatements include, but are not limited to, statements about:
the commercialization of our patented Multi Risk test launched in 2023 for cancer,
cardiovascular and metabolic risk assessment tests in the U.S and Australia;
our competitive position in the molecular risk assessment and predictive testing area including
a launch of the world's first comprehensive hereditary breast and ovarian cancer test;
our continued collaboration plans to research,
develop, and launch our product candidates;
the size and growth potential of the current
and new market opportunities for our products;
our ability to raise additional capital;
our expectations regarding our ability to obtain
and maintain intellectual property protection;
our ability to attract and retain
qualified employees and key personnel;
our ability to retain and maintain relationship with third party
consultants and advisors and their ability to perform adequately;
our estimates regarding future revenue, expenses
and needs for additional financing; and
regulatory developments in the United States, China and other
jurisdictions and our compliance with such regulations.
Forward-lookingstatements speak only as of the date they are made, and we do
not undertake any obligation to update them in light of new informationor
future developments or to release publicly any revisions to these statements
in order to reflect later events or circumstances orto reflect the occurrence
of unanticipated events, except as may be required under applicable.
Inaddition, statements that "we believe" and similar statements reflect our
beliefs and opinions on the relevant subject. Thesestatements are based upon
information available to us as of the date of this prospectus, and while we
believe such information formsa reasonable basis for such statements, such
information may be limited or incomplete, and our statements should not be
read to indicatethat we have conducted an exhaustive inquiry into, or review
of, all relevant information. These statements are inherently uncertain,and
investors are cautioned not to unduly rely upon these statements.
Youshould read this prospectus and the documents that we reference in this
prospectus and have filed as exhibits to the registration statement,of which
this prospectus is a part, completely and with the understanding that our
actual future results may be materially differentfrom what we expect. We
qualify all of our forward-looking statements by these cautionary statements.
iii
PROSPECTUSSUMMARY
Thissummary highlights selected information contained elsewhere or
incorporated by reference in this prospectus. The summary may not containall
the information that you should consider before investing in our ADSs or
ordinary shares. You should read the entire prospectus carefully,including
"Risk Factors" contained in this prospectus and the documents incorporated by
reference herein, before making aninvestment decision.
Overview
GeneticTechnologies Limited (ASX: GTG; Nasdaq: GENE) was founded in 1989 and
listed on the ASX in 2000 and the NASDAQ in 2005. We are one ofthe major
players in guideline driven genomics-based tests in health, wellness, and
serious disease through its geneType, EasyDNA, andAffinity DNA brands. In
addition to our patented GeneType polygenic based risk tests, our portfolio
includes pharmacogenomics, Non-InvasivePrenatal Testing (NIPT), carrier screen
testing, oncogenetic diseases, and pet care. The company operates in the USA,
Europe, and AsiaPacific under various revenue models.
GTGoffers cancer predictive testing and assessment tools to help physicians to
improve health outcomes for people around the world. TheCompany's patented
polygenic risk scores (PRS) platform is a proprietary risk stratification tool
developed over the past decadeintegrating clinical and genetic risk delivering
actionable outcomes for physicians and individuals. Sporadic disease occurs in
peoplewith no family history of that disease and with no inherited change in
their DNA making the risk difficult to predict with traditionalmethods.
Atthe forefront in risk prediction in oncology, cardiovascular, and metabolic
diseases, Genetic Technologies continues to develop its pipelineof risk
assessment products. The recent introduction of geneType Multi-Risk test risk
assessments in one test covering breast cancer,colorectal cancer, prostate
cancer, ovarian cancer, coronary artery disease and Type-2 diabetes, has now
been successfully expanded toinclude pancreatic cancer, melanoma, and atrial
fibrillation. This non-invasive saliva-based test can predict a person's risk
ofup to 70% of annual mortalities and morbidities before onset. These tests
along with integration of recently acquired DNA based productsunderpin a broad
and complementary portfolio of genomic based tests creating a significant
competitive advantage.
GTGacquired two direct-to consumer e-commerce DNA testing businesses: EasyDNA
(2021), with over 70 websites in 40 countries and 6 brandidentities; and
Affinity DNA (2022), with a variety of DNA tests including lifestyle, health,
and wellbeing genomics-based tests, plusanimal testing relating to allergies
and intolerances via online marketplaces, including Amazon.
InMay 2019, the Company announced that it had developed two cancer risk
assessment tests branded as GeneType for Breast Cancer and GeneTypefor
Colorectal Cancer. The breast cancer test provides substantial improvement
over the Company's legacy breast cancer test BREVAGen
plus
,by incorporating multiple additional clinical risk factors. This test will
provide healthcare providers and their patients with a 5-yearand lifetime risk
assessment of the patient developing breast cancer. The colorectal cancer test
will provide healthcare providers andtheir patients with a 5-year, 10-year,
and lifetime risk assessment of the patient developing colorectal cancer.
InJune 2020, the Company received US Patent No: US 10,683,549, Methods for
assessing risk of developing breast cancer. The Company is thefirst company in
the world to successfully commercialize a polygenic risk test for breast
cancer. The granted patent covers the Company'sproprietary panels of single
nucleotide polymorphisms (SNPs) and the combination of clinical and phenotypic
risk models to create themost comprehensive risk assessment tool on the
market: GeneType for Breast Cancer.
InFebruary 2022 the Company received US Patent No: US 11,257,569, Methods of
assessing risk of developing a severe response to Coronavirusinfection. The
granted US patent covers the proprietary technology incorporated into GTG's
geneType COVID-19 Risk Test, which providesa probability that a person will
develop severe symptoms requiring hospitalization should they become infected.
1
Duringthe 2023 financial year the Company continued to develop other risk
assessment tests, and improve existing tests across a range of diseases,includin
g:
breast cancer
pancreatic cancer
melanoma
colorectal cancer
ovarian cancer
prostate cancer
coronary artery disease
atrial fibrillation
type 2 diabetes
TheCompany's Genetic Testing Business
Followingthe acquisition of Genetype AG in 1999 and the subsequent renaming to
Genetic Technologies Limited, the Company focused on establishinga genetic
testing business, which over the following decade saw it become the largest
provider of paternity and related testing servicesin Australia. The Company's
service testing laboratory in Melbourne became the leading non-Government
genetic testing service providerin Australia. The genetic testing services of
the Company expanded to include at certain times:
medical testing
animal testing
forensic testing
plant testing
Theacquisition of GeneType AG also provided the Company with ownership rights
to a potentially significant portfolio of issued patents.During the
intervening years, this portfolio has since been expanded by both organic
growth and the acquisition of intellectual propertyassets from third parties.
The patent portfolio is constantly reviewed to ensure that the Company
maintains potentially important patentsbut at the same time keeps costs to a
minimum by no longer pursuing less commercially attractive and relevant
intellectual property.
Astrategic alliance with Myriad Genetics Inc. delivered to the Company
exclusive rights in Australia and New Zealand to perform DNA testingfor
susceptibility to a range of cancers. In April 2003, the Company established
its cancer susceptibility testing facility within itsAustralian laboratory. In
June 2003, this facility was granted provisional accreditation by the National
Association of Testing Authorities,Australia ("NATA").
InNovember 2003, the Company joined the world-wide genetic testing network
GENDIA as the sole reference laboratory for the network in Australiaand New
Zealand. GENDIA consists of more than 50 laboratories from around the world,
each contributing expertise in their respectivedisciplines to create a network
capable of providing more than 2,000 different genetic tests. This provided
the Company with the abilityto offer comprehensive testing services to its
customer base in the Asia-Pacific region as well as increasing its exposure to
other markets.
InApril 2010 the Company purchased various assets from Perlegen Sciences, Inc.
of Mountain View, California, which included a breast cancernon-familial risk
assessment test, BREVAGenTM. The Company then began validating the test in our
Australian laboratory and initiatedthe process for obtaining CLIA
certification which would enable the Company to undertake the testing of
samples received from the U.S.market. By July 2010, a new U.S. subsidiary
named Phenogen Sciences Inc. (renamed GeneType Inc. on April 3, 2023) had been
incorporatedby the Company in Delaware to market and distribute the BREVAGenTM
test across the United States.
InOctober 2014, the Company announced the U.S. release of BREVAGen
plus
, an easy-to-use predictive risk test for the millions ofwomen at risk of
developing sporadic, or non-hereditary, breast cancer, representing a marked
enhancement in accuracy and broader patientapplicability, over its first
generation BREVAGenTM product. The Company also made a pivotal change of sales
and marketing emphasistoward large comprehensive breast treatment and imaging
centers, which are more complex entities with a longer sales cycle, but
higherpotential.
2
GeneTypefor Breast Cancer
Theidentification in 2007 of a number of genetic biomarkers, consisting of
single nucleotide polymorphisms (SNPs), each with an associatedsmall relative
risk of breast cancer, led to the development of the first commercially
available genetic risk test for sporadic breastcancer, BREVAGen. The Company
launched the product in the U.S. in June 2011. In October 2014, we released
our next generation breastcancer risk assessment test, BREVAGen
plus
. This new version of the test incorporated a 10-fold expanded panel of SNPs
known tobe associated with the development of sporadic breast cancer,
providing an increase in predictive power relative to its first-generationpredec
essor test. In addition, the new test was clinically validated in a broader
population of women including, African American andHispanic women. This
increased the applicable market applicable to the first-generation test beyond
Caucasian women, and simplified themarketing process in medical clinics and
breast health centers in the U.S.
Theexpanded panel of SNPs incorporated into our breast cancer tests were
identified from multiple large-scale genome-wide association studiesand
subsequently tested in case-control studies utilizing specific Caucasian,
African American and Hispanic patient samples.
BREVAGen
plus
was a clinically validated, predictive risk test for sporadic breast cancer
which examined a woman's clinical risk factors,combined with seventy-seven
scientifically validated SNPs to allow for more personalized breast cancer
risk assessment and risk management.
InMay 2019, we announced the development of our next generation breast cancer
risk assessment test, `GeneType for Breast Cancer'.The new breast cancer test
provided substantial improvement over our legacy breast cancer test BREVAGen
plus
by incorporating keyclinical risk factors: family history, mammographic breast
density and polygenic risk. This test will provide healthcare providers
andtheir patients with a 5-year and lifetime risk assessment of the patient
developing breast cancer.
Germlinegenetic testing for mutations in BRCA1 and BRCA2 allows for the
identification of individuals at significantly increased risk for breastand
other cancers. However, such mutations are relatively rare in the general
population and account for less than 10% of all breastcancer cases. The
remaining 90% of non-familial or sporadic breast cancer have to be defined by
other genetic/clinical markers commonto the population at large and this is
where we have focused our attention.
The`GeneType for Breast Cancer' test is aimed at risk detection of non-BRCA
related sporadic breast cancer (that is, for thosewomen who do not have an
identified family history of breast cancer). Importantly, this means that the
Company's new test covers95% of women.
InJune 2020, the Company received the approval for its U.S. patent number US
10,683,549, "Methods for Assessing Risk of DevelopingBreast Cancer." The
granted patent covers the Company's proprietary panels of single nucleotide
polymorphisms (SNPs) andthe combination of clinical and phenotypic risk models
to create the most comprehensive risk assessment tool on the market:
GeneTypefor Breast Cancer.
GeneTypefor Colorectal Cancer
Nextgeneration risk assessments combine multiple clinical and genetic risk
factors to better stratify individuals at increased risk of developingdisease.
`GeneType for Colorectal Cancer' incorporates the most impactful risk factors
in order to define an individual'srisk of developing colorectal cancer, so the
healthcare provider can make screening and preventative care recommendations
that are tailoredto their patient's personalized risk.
Colorectalcancer is the third most diagnosed cancer in the U.S., yet 1 in 3
adults are not receiving the appropriate colorectal cancer screeningfor their
age. In addition, rates of colorectal cancer among 20-49-year-olds is steadily
increasing. Identifying patients who aremost at risk for colorectal cancer can
lead to enhanced screening protocols and better outcomes. Most individuals
diagnosed with colorectalcancer do not have a significant family history of
the disease. `GeneType for Colorectal Cancer' evaluates the genometricrisk of
developing colorectal cancer for men and women over age 30 who do not have a
known pathogenic gene variant.
Insporadic colorectal cancer, no single gene mutation is causal of disease.
Rather, common DNA variations or SNPs, each contribute a smallbut measurable
risk of developing disease. `GeneType for Colorectal Cancer' analyses a
patient's DNA for more than40 SNPs that have been clinically validated in
their association with colorectal cancer. By combining the effects of all of
these SNPsinto a single polygenic risk score (PRS), `GeneType for Colorectal
Cancer' will provide a superior risk stratification overstandard risk
assessments that incorporate only clinical factors.
3
`GeneTypefor Colorectal Cancer' is clinically validated for men and women of
30 years of age or older and for individuals of Caucasian descent.The Company
intends to provide updates as it continuously improves its tests and add fully
validated models for additional ethnicities.
CommercialLaunch of GeneType Multi-Risk Test
TheGeneType brand was re-launched globally in October 2021 following
redevelopment of the Company's websites, marketing and advertising,media
releases and announcements to the ASX and NASDAQ. The commercial launch of the
GeneType Multi Risk Test in February 2022 includedthe first phase launch to
cover risk assessment for six serious diseases including breast, colorectal,
prostate, and ovarian cancers,coronary artery disease and Type-2 diabetes
covering more than 50% of all serious diseases, all in one test sample. The
GeneType Multi-Testreceived simultaneous NATA accreditation and CMS
certification in Australia and USA respectively. The first phase of the
GeneType Multi-Testbecame available to Health Care Professionals (HCPs) in
February 2022.
InMarch 2023 the Company announced that the geneType multi-risk test had been
expanded to include three new diseases: Melanoma, pancreaticcancer, and Atrial
Fibrillation, taking the total number of diseases covered by the test to nine.
Centers for Medicare & Medicaid(CMS) approved the use of test for U.S.
customers in March which was followed by the approval of test for the
Australian market in September2023 by the National Association of Testing
Authority (NATA).
CommercialLaunch of GeneType Comprehensive Hereditary Breast and Ovarian
Cancer (HBOC) Test
Inearly 2023 we announced that the Company would develop and launch a `World
First' Comprehensive Risk Assessment Test whichevaluates a women's risk of
developing breast and/or ovarian cancer either from a hereditary genetic
mutation or from the far morecommon familial or sporadic cancer. Combined with
other clinical risk factors the test provides a comprehensive risk assessment
in asimple saliva test. This announced to the market in March 2024.
GlobalMarket Expansion Opportunities
InNovember 2023, the Company announced its plan to launch its three brands,
EasyDNA, Affinity DNA, and geneType, via the United Kingdom(U.K.) pharmacy
channel in April 2024. The U.K. National Pharmacy Association is driving an
initiative to make at home testing accessiblein Pharmacy versus General
Practice. Secondly, the Company is accelerating its plan to broaden our
geneType brand into Southeast Asiaand in discussions on several initiatives
with potential partners.
ScientificPublications and Peer Reviewed Manuscripts
Overthe past 12 months our clinical and scientific team continue to lead the
Company's innovation, successfully publishing six peerreviewed manuscripts.
The data highlighting the clinical validity and utility of our patented
geneType technology. Our talented teamcontinue to collaborate with world
leading institutions to advance our innovation.
Direct-to-ConsumerChannel of Lifestyle Genetic Tests
TheCompany's acquisition of EasyDNA, in April 2024, provide the Company
direct-to-consumer channel for the sale and distribution oflifestyle genetic
tests. This was followed by the acquisition of Affinity DNA in August 2022.
Both EasyDNA & Affinity DNA brand oftests can be completed by the customer
without the need to consult a healthcare professional. The laboratory testing
of the EasyDNA andAffinity DNA genetic tests are performed by contracted
laboratories in the US, Europe and Australia. EasyDNA and Affinity DNA
customersorder their tests online using our network of websites covering 40
countries.
4
RecentInformation
April2024 - New Precision Oncology Tests
OnApril 17, the company announced the establishment of a precision oncology
division and a portfolio of new diagnostic tests under itsgeneType precision
oncology brand. The tests will provide information to medical oncologists,
helping determine which therapies willhave the most efficacious impact in
treating a range of cancers.
April2024 - GTG to pilot GeneType in Breast Screen centers across the U.S.
OnApril 11, the company announced it was establishing a clinical implementation
study with breast imaging centers across New York, Miamiand Houston. This
initiative will pilot the integration of the geneType test into breast imaging
centers, assisting in the streamliningof care that is currently fragmented.
March2024 - GTG to develop Worlds Most Advanced Comprehensive Risk Test
OnMarch 22 the company announced the development of the Company's most
advanced risk assessment test for serious diseases, buildingon the success of
the Comprehensive Hereditary Breast and Ovarian Cancer (HBOC) test. This
latest innovation will be a world first;including over 200 high penetrant
genes to unlock the hereditary disease risk to its current multi-test
associated with the most commoncancers, cardiovascular disease, and type 2
diabetes. This ground-breaking innovation enables doctors to identify nearly
100% of peopleat risk of disease going beyond family history.
February2024 - Launch U.S. Customer Digital Media Sales Campaign
OnFebruary 28 the company Announced the launch of a wide-reaching customer -
targeted digital advertising campaign in the UnitedStates. This comprehensive
program will drive Consumer Initiated Testing (CIT) for the company's geneType
Risk Assessment Tests.The campaign will commence end of March 2024 and will
scale up throughout the remainder of the year. The U.S. wellness testing
marketis projected to reach $4.9 billion by 2032 from $878.9 million in 2022
with an annual growth rate of 18.86%. GTG's strategy ensuresthat the company's
geneType Risk Assessment test portfolio will be able to access this segment.
of this rapidly growing marketin the U.S.
February2023 Registered Offering
OnFebruary 7, 2023, the Company announced the closing of its registered direct
offering with several institutional investors for the purchaseand sale of
3,846,155 ADSs, each representing six hundred (600) ordinary shares of the
Company, at a purchase price of $1.30 per ADS.H.C. Wainwright & Co. acted as
the exclusive placement agent for the offering. The gross proceeds to the
Company from this offeringwere approximately $5 million, before deducting the
placement agent's fees and other offering expenses payable by the Company.
MRFFGrant
OnSeptember 11, 2023, GTG announced that it had been named National Research
Partner for a Medical Research Future Fund (MRFF) GenomicsHealth Futures
Mission Grant which was awarded to a group of renowned national and
international research and charity organizations.The grant will provide
funding for the CASSOWARY Trial: a randomized controlled trial of the clinical
utility and cost-effectivenessof a multi-cancer polygenic risk score in
general practice. The Cassowary Trial is a collaboration between international
investigatorsfrom GTG (Industry partner), University of Melbourne and Queen
Mary University of London, The Royal Melbourne Hospital, Royal MarsdenNHS
Foundation Trust, and the Daffodil Centre.
5
ShareConsolidation and ADS Ratio Change
OnNovember 22, 2023, we held our 2023 Annual General Meeting of shareholders
(the "2023 Annual Meeting"). At the 2023 AnnualMeeting, our shareholders
approved a share consolidation of all classes of securities, including
ordinary shares at a ratio of one (1)for every parcel of one hundred (100)
securities held, such that each hundred ordinary shares of the Company would
be combined into oneordinary share of the Company (the "Local Consolidation").
Inconnection with the
Local Consolidation
, the Company also simultaneously adjusted its ADSRatio from the then-existing
ratio of one ADS representing 600 ordinary shares to one ADS representing 30
ordinary shares (the "RatioChange"). Both the
Local Consolidation
and the Ratio Change became effective at theopen of trading on December 14,
2023. Our ordinary shares continue to be traded on the ASX, under the symbol
"GTG." The ADSscontinue to be traded on The Nasdaq Stock Exchange under the
symbol "GENE".
Onthe effective date of the Ratio Change, ADS holders were required on a
mandatory basis to surrender their old ADSs to the depositoryfor cancellation
and exchange at a rate of one "new" ADS (CUSIP 37185R406) for every five "old"
ADSs (CUSIP 37185R307)surrendered. Holders of ADSs in the Direct Registration
System or in brokerage accounts had their ADSs automatically exchanged with
nofurther action. No fraction of an ADS was issued.
April2024 Financing
OnApril 18, 2024, we entered into a definitive agreement (the "Purchase
Agreement") with institutional investors providingfor the issuance of (i)
16,800,000 ordinary shares represented by 560,000 ADSs, and (ii) pre-funded
warrants to purchase up to an aggregate13,200,000 ordinary shares represented
by 440,000 ADSs, in a registered direct offering at an offering price of $2.00
per ADS and $1.999per pre-funded warrant, for aggregate gross proceeds of
approximately $2 million. Each pre-funded warrant is exercisable for one ADSat
an exercise price of $0.001 per share. The pre-funded warrants are immediately
exercisable and may be exercised at any time untilall of the pre-funded
warrants are exercised in full. The offering closed on April 22, 2024. In
addition, under the Purchase Agreement,the investors received unregistered
warrants to purchase up to an aggregate of 30,000,000 ordinary shares
represented by 1,000,000 ADSsat an exercise price of $2.00 per ADS (the
"Private Placement"). The warrants will be immediately exercisable and will
expirefive years following the date of issuance. The warrants may be exercised
on a cashless basis if there is no effective registration statementregistering
the ADSs underlying the warrants.
CorporateInformation
Ourcorporate headquarters and laboratory are located at 60-66 Hanover Street,
Fitzroy, Victoria, 3065, Australia and our telephone numberis 61 3 8412 7000.
The offices of our U.S. subsidiary, geneType Inc., are located at 1300 Baxter
Street, Suite 255, Charlotte, NorthCarolina 28269 and the office telephone
number is (877) 992-7382. Our website address is www.genetype.com. The
information in our websiteis not incorporated by reference into this
prospectus and should not be considered as part of this prospectus.
6
THEOFFERING
ADSs Offered Up to an aggregate of 30,000,000 ordinary
shares, no par value per share, of
the Company, represented by 1,000,000
ADSs issuable upon the exercise of the
warrants issued under the Private Placement.
The selling shareholders are identified
in the table commencing on page 11.
Each ADS represents 30 ordinary shares.
ADS 3,219,089
Outstanding at May 14, 2024 ADS.
Use of proceeds We will not receive any proceeds from the sale of the ordinary
shares represented by ADSs by the selling shareholders.
All net proceeds from the sale of the ordinary shares
represented by ADSs covered by this prospectus will
go to the selling shareholders. However, we may receive
the proceeds from any exercise of warrants if the holders
do not exercise the warrants on a cashless basis. See the
section of this prospectus titled "Use of Proceeds."
NASDAQ Symbol for ADSs GENE
Risk factors Before investing in our securities,
you should carefully read and
consider the "Risk Factors" beginning
on page 8 of this prospectus.
Theabove is based on 3,219,089 ADSs representing 96,572,670 ordinary shares
outstanding as of May 14, 2024 which doesnot include the following:
45,842,668
ordinary shares issuable upon exercise of outstanding warrants at exercises prices between $0.10 and $1.04; and
400,000
performance ordinary shares issuable to Directors and Senior Management on the achievement of share price targets.
Unlessotherwise indicated, all information in this prospectus assumes no
exercise of the outstanding options, performance shares or any ofthe options
or warrants described above.
7
RISKFACTORS
Aninvestment in our securities involves significant risk. Before making an
investment in our securities, you should carefully considerthe risk factors
set forth in our most recent Annual Report on Form 20-F on file with the SEC,
which is incorporated by reference intothis prospectus, as well as the
following risk factors, which supplement or augment the risk factors set forth
in our Annual Report onForm 20-F. Before making an investment decision, you
should carefully consider these risks as well as other information we include
orincorporate by reference in this prospectus. The risks and uncertainties not
presently known to us or that we currently deem immaterialmay also materially
harm our business, operating results and financial condition and could result
in a complete loss of your investment.
RisksRelated to this Offering
Thesale of a substantial amount of our ordinary shares or ADSs, including
resale of the ADSs issuable upon the exercise of the warrantsheld by the
selling shareholders in the public market could adversely affect the
prevailing market price of our ADSs.
Weare registering for resale 30,000,000 ordinary shares represented by
1,000,000 ADSs issuable upon the exercise of warrants held by theselling
shareholders. Sales of substantial amounts of shares of our ordinary shares or
ADSs in the public market, or the perception thatsuch sales might occur, could
adversely affect the market price of our ordinary shares, and the market value
of our other securities.We cannot predict if and when selling shareholders may
sell such shares in the public markets. Furthermore, in the future, we may
issueadditional ordinary shares or ADSs or other equity or debt securities
convertible into ordinary shares or ADSs. Any such issuance couldresult in
substantial dilution to our existing shareholders and could cause our stock
price to decline.
8
USEOF PROCEEDS
Wewill not receive any proceeds from the sale of the ordinary shares
represented by ADSs by the selling shareholders. All net proceedsfrom the sale
of the ordinary shares represented by ADSs and the warrants covered by this
prospectus will go to the selling shareholders.We expect that the selling
shareholders will sell their ordinary shares represented by ADSs as described
under "Plan of Distribution."
Wemay receive proceeds from the exercise of the warrants and issuance of the
warrant ADSs to the extent that these warrants are exercisedfor cash.
Warrants, however, are exercisable on a cashless basis under certain
circumstances. If all of the warrants mentioned abovewere exercised for cash
in full, the proceeds would be approximately $2,000,000. We intend to use the
net proceeds of such warrant exercise,if any, for research and development,
general and administrative expenses, and for working capital purposes .
Pendingapplication of the net proceeds for the purposes as described above, we
expect to invest the net proceeds in short-term, interest-bearingsecurities,
investment grade securities, certificates of deposit or direct or guaranteed
obligations of the U.S. government.
9
CAPITALIZATION
Thefollowing table sets forth our capitalization:
on an actual basis as of December 31, 2023; and
on an adjusted basis, giving additional effect to completion of the April
2024 financing, based on an aggregate of (i) 16,800,000 ordinary shares
represented by 560,000 ADSs at the offering price of $2.00 per ADS, and (ii)
13,200,000 ordinary shares represented by 440,000 ADSs underlying pre-funded
warrants, at the offering price of $1.999 per pre-funded warrant, assuming
full exercise of the pre-funded warrants sold in the April 2024 financing,
after deducting the placement agent fees and estimated offering expenses
payable by us, resulting in net proceeds of approximately $1,555,000.
Thefollowing depiction of our capitalization on an adjusted basis as of
December 31, 2023 reflects the net proceeds from April 2024 financing,and does
not reflect exercise of any options or warrants or any other transactions
impacting our capital structure subsequent to December31, 2023. The adjusted
amounts shown below are unaudited and represent management's estimate. The
information in this table shouldbe read in conjunction with and is qualified
by reference to the financial statements and notes thereto and other financial
informationincorporated by reference into this prospectus.
December 31, 2023 (A$)
Actual As Adjusted (1)
Cash and cash equivalents $ 3,729,200 $ 6,113,274
Other Assets:
Current Assets $ 1,986,551 $ 1,986,551
Non-current Assets $ 2,751,111 $ 2,751,111
Liabilities:
Current liabilities $ 3,421,787 $ 3,421,787
Non-current liabilities $ 232,940 $ 232,940
Equity:
Share capital $ 161,342,707 $ 161,342,707
Other reserves $ 4,247,549 $ 4,247,549
Retained earnings $ (160,778,121 ) $ (160,778,121 )
Total equity $ 4,812,135 $ 7,196,209
Total capitalization $ 4,812,135 $ 7,192,209
(1) On an as adjusted basis to give effect to the proceeds from the sale of 560,000 ADSs
and 440,000 pre-funded warrants, in the April 2024 offering after deducting estimated
offering expenses payable by us, translated from U.S. dollars into Australian dollars at
A$1.00 to US$0.6523, which was the average exchange rate for the month of April 2024.
Theabove table is based on 115,417,246 ordinary shares outstanding as of
December 31, 2023 and excludes the following:
4,630,168 ordinary shares issuable upon exercise of outstanding
warrants at exercises prices between $0.10 and $1.04;
400,000 performance shares issuable to directors and senior
management on the achievement of share price targets;
30,000,000 ordinary shares represented by 1,000,000 ADSs issuable upon exercise of the warrants to be issued to the
investors in a private placement concurrently with the April offering, at an exercise price of $2.00 per ADS; and
1,950,000 ordinary shares represented by 65,000 ADSs
issuable upon the exercise of warrants to be issued to the
placement agent (or its designees) as compensation in connection
with the April offering, at an exercise price of $2.50 per ADS.
10
SELLINGSHAREHOLDERS
Theordinary shares represented by ADSs being offered by the selling
shareholders are those ordinary shares represented by ADSs issuableupon
exercise of warrants previously issued in connection with our private
placement that closed in April 2024. For additional informationregarding the
issuance of those ADSs and warrants to purchase ADSs, see "Prospectus Summary
- April 2024 Financing."We are registering the ordinary shares represented by
ADSs in order to permit the selling shareholders to offer the ordinary shares
representedby ADSs for resale from time to time. Other than with respect to
the sale of our securities to the selling shareholders in our April2024
financing and in previous financings except for the ownership of the
warrants issued, and the ADSs issued and issuable,pursuant to prior
financings, the selling shareholders have not had any material relationship
with us within the past three years.
Thetable below lists the selling shareholders and other information regarding
the beneficial ownership of the ordinary shares by each ofthe selling
shareholders. The second column lists the number of ordinary shares
beneficially owned by each selling stockholder, basedon its ownership of ADSs
and warrants to purchase ADSs, as of May 14, 2024, assuming exercise of the
warrants held by the sellingshareholders on that date, without regard to any
limitations on conversions or exercises. The third column lists the maximum
number ofordinary shares being offered in this prospectus by the selling
shareholders. The fourth and fifth columns list the amount of ordinaryshares
owned after the offering, by number of ordinary shares and percentage of
outstanding ordinary shares (assuming for the purposeof such percentage,
96,572,670 shares represented by 3,219,089 ADS outstanding as of May 14, 2024)
assuming in bothcases the sale of all of the ordinary shares offered by the
selling shareholders pursuant to this prospectus, and without regard to
anylimitations on conversions or exercises.
Underthe terms of the warrants issued under the private placement, a selling
stockholder may not exercise the warrants to the extent suchexercise would
cause such selling stockholder, together with its affiliates, to beneficially
own a number of ordinary shares which wouldexceed 4.99% or 9.99% of our then
outstanding ordinary shares following such exercise, excluding for purposes of
such determination ordinaryshares not yet issuable upon exercise of the
warrants which have not been exercised. The number of shares does not reflect
this limitation.The selling shareholders may sell all, some or none of their
ordinary shares represented by ADSs or warrants in this offering. See "Planof
Distribution."
Selling Shareholder Number of Maximum Number of Percentage
Ordinary Shares Number of Ordinary of
Owned Ordinary Shares Ordinary
Prior to Shares to Owned After Shares
Offering be Sold the Offering Owned
Pursuant After the
to this Offering
Prospectus
Armistice Capital, LLC 39,385,000 26,250,000 (3) 13,135,000 13.60 %
(1)
Intracoastal Capital, LLC 5,940,000 3,750,000 (4) 2,190,000 2.27 %
(2)
* Denotes less than 1%
(1) The securities are directly held by Armistice Capital Master Fund Ltd., a Cayman Islands exempted
company (the "Master Fund"), and may be deemed to be beneficially owned by: (i) Armistice Capital, LLC
("Armistice Capital"), as the investment manager of the Master Fund; and (ii) Steven Boyd, as the Managing
Member of Armistice Capital. The warrants are subject to a beneficial ownership limitation of 4.99%,
which such limitation restricts the Selling Stockholder from exercising that portion of the warrants
that would result in the Selling Stockholder and its affiliates owning, after exercise, a number of
shares of common stock in excess of the beneficial ownership limitation. The address of Armistice Capital
Master Fund Ltd. is c/o Armistice Capital, LLC, 510 Madison Avenue, 7th Floor, New York, NY 10022.
(2) Mitchell P. Kopin ("Mr. Kopin") and Daniel B. Asher ("Mr. Asher"), each
of whom are managers of Intracoastal Capital LLC ("Intracoastal"),
have shared voting control and investment discretion over the
securities reported herein that are held by Intracoastal.
As a result, each of Mr. Kopin and Mr. Asher may be deemed to have
beneficial ownership (as determined under Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
of the securities reported herein that are held by Intracoastal.
(3) Represents 26,250,000 ordinary shares represented by 875,000 ADSs
issuable upon exercise of warrants issued in our April 2024 financing.
(4) Represents 3,750,000 ordinary shares represented by 125,000 ADSs
issuable upon exercise of warrants issued in our April 2024 financing.
11
DESCRIPTIONOF SHARE CAPITAL
OrdinaryShares
Ourconstituent document or governing rules is a Constitution. Our Constitution
is subject to the terms of the Listing Rules of the ASX andthe
Australian Corporations Act 2001
. The rights and restrictions attaching to ordinary shares are derived through
a combinationof our Constitution, the common law applicable to Australia, the
Listing Rules of the Australian Securities Exchange, the
CorporationsAct 2001
and other applicable law. A general summary of some of the rights and
restrictions attaching to ordinary shares are summarizedbelow. Each ordinary
shareholder is entitled to receive notice of and to be present, to vote and to
speak at general meetings.
Weencourage you to read our Constitution which is included as an exhibit to
this registration statement of which this prospectus formsa part. We do not
have a limit on our authorized share capital and do not recognize the concept
of par value under Australian law. Subjectto restrictions on the issue of
securities in our Constitution, the Corporations Act 2001 and the Listing
Rules of the Australian SecuritiesExchange and any other applicable law, we
may at any time issue shares and grant options or warrants on any terms, with
the rights andrestrictions and for the consideration that the board of
directors determine.
Dividends
Holdersof ordinary shares are entitled to receive such dividends as may be
declared by the board of directors. All dividends are declared andpaid
according to the amounts paid up on the shares in respect of which the
dividend is paid. As of the date of this prospectus, therehave been no
dividends paid to holders of ordinary shares.
Anydividend unclaimed after a period of twelve years from the date of
declaration of such dividend shall be paid to, and held by, the PublicTrustee
of Victoria. The payment by the board of directors of any unclaimed dividend,
interest or other sum payable on or in respectof an ordinary share into a
separate account shall not constitute us as a trustee in respect thereof.
Constitution
Ourconstituent document is a Constitution which is similar in nature to the
by-laws of a company incorporated under the laws of the U.S.Our Constitution
does not provide for or prescribe any specific objects or purposes of the
Company. Our Constitution is subject to theterms of the Listing Rules of the
Australian Securities Exchange and the
Corporations Act 2001
. Our Constitution may be amendedor repealed and replaced by special
resolution of shareholders, which is a resolution passed by at least 75% of
the votes cast by shareholderswho vote by person or proxy at a duly convened
shareholders meeting.
ShareholdersMeetings
Wemust hold an annual general meeting within five months of the end of each
fiscal year. Our end of fiscal year is currently June 30 eachyear. At the
annual general meeting, shareholders typically consider the annual financial
report, directors' report and auditor'sreport and vote on matters, including
the election of directors, the appointment of the auditor (if necessary) and
fixing the aggregatelimit of non-executive directors' remuneration. We may
also hold other meetings of shareholders from time to time. The annual
generalmeeting must be held in addition to any other meetings which we may
hold.
12
Theboard of directors may call and arrange a meeting of shareholders, when and
where they decide. The directors must call a meeting of shareholderswhen
requested by shareholders who hold at least 5% of the votes that may be cast
at the meeting or as otherwise required by the CorporationsAct 2001.
Shareholders with at least 5% of the votes that may be cast at a meeting may
also call and hold a general meeting, subjectto the notification requirements
of the
Corporations Act 2001
.
Unlessapplicable law or our Constitution requires a special resolution, a
resolution of shareholders is passed if more than 50% of the votesat the
meeting are cast in favor of the resolution by shareholders in person or proxy
entitled to vote upon the relevant resolution.A special resolution is passed
if the notice of meeting sets out the intention to propose the special
resolution and it is passed ifat least 75% of the votes at the meeting are
cast by shareholders in person or proxy entitled to vote upon the relevant
resolution.
Aspecial resolution usually involves more important questions affecting the
Company as a whole or the rights of some or all of our shareholders.Special
resolutions are required in a variety of circumstances under our Constitution
and the
Corporations Act 2001
, includingwithout limitation:
to change our name;
to amend or repeal and
replace our Constitution;
to approve the terms of
issue of preference shares;
to approve the variation of class
rights of any class of shareholders;
to convert one class of shares
into another class of shares;
to approve certain buy backs of shares;
to approve a selective capital
reduction of our shares;
to approve financially assisting a
person to acquire shares in the Company;
to remove and replace our auditor;
to change our company type;
with the leave of an authorized Australian
court, to approve our voluntary winding up;
to confer on a liquidator of the Company either a general authority or a particular
authority in respect of compensation arrangements of the liquidator; and
to approve an arrangement entered into between a company
about to be, or in the course of being, wound up.
ShareholderVoting Rights
Ata general meeting, every shareholder present (in person or by proxy,
attorney or representative) and entitled to vote has one vote ona show of
hands. Every shareholder present (in person or by proxy, attorney or
representative) and entitled to vote has one vote perfully paid ordinary share
and that portion of a vote for any partly paid share that the amount paid on
the partly paid share bears tothe total amounts paid and payable, on a poll.
This is subject to any other rights or restrictions which may be attached to
any shares.In the case of an equality of votes on a resolution at a meeting
(whether on a show of hands or on a poll), the chairman of the meetinghas a
deciding vote in addition to any vote that the chairman of the meeting has in
respect of that resolution.
13
Issueof Shares and Changes in Capital
Subjectto our Constitution, the Corporations Act 2001, the Listing Rules of
the Australian Securities Exchange and any other applicable law,we may at any
time issue shares and grant options or warrants on any terms, with preferred,
deferred or other special rights and restrictionsand for the consideration and
other terms that the directors determine. Our power to issue shares includes
the power to issue bonus shares(for which no consideration is payable to the
Company), preference shares (including redeemable preference shares) and
partly paid shares.
Pursuantto the Listing Rules of the Australian Securities Exchange, our Board
may in their discretion issue securities to persons who are notrelated parties
of our Company, without the approval of shareholders, if such issue, when
aggregated with securities issued by us duringthe previous 12-month period
would be an amount that would not exceed 15% of our issued share capital at
the commencement of the 12-monthperiod (or a combined limit of up to 25% of
our issued share capital, subject to certain conditions, if prior approval for
the additional10% is obtained from shareholders at our annual meeting of
shareholders). Other allotments of securities require approval by an
ordinaryresolution of shareholders unless these other allotments of securities
fall under a specified exception under the Listing Rules.
TheCompany may issue preference shares, by approval of a special majority,
which is a resolution of which notice has been given and thathas been passed
by at least 75% of the voting rights represented at the meeting, in person, by
proxy, or by written ballot and entitledto vote on the resolution. There are
no preference shares issued or allotted as at the date of this prospectus.
Subjectto the requirements of our Constitution, the Corporations Act 2001, the
Listing Rules of the Australian Securities Exchange and any otherapplicable
law, we may:
consolidate or divide our share
capital into a larger or smaller
number by resolution passed by
shareholders at a general meeting;
reduce our share capital by special resolution passed by at least 75% of the votes cast by
shareholders who vote by person or proxy at a duly convened shareholders meeting (and are
not otherwise excluded by law) provided that the reduction is fair and reasonable to our
shareholders as a whole, and does not materially prejudice our ability to pay creditors;
undertake an equal access buyback of our ordinary shares by
ordinary resolution of shareholders (although if we have bought
back less than 10% of our shares over the period of the previous
12 months, shareholder approval may not be required); and
undertake a selective buyback of certain shareholders' shares by special resolution passed by
at least 75% of the votes cast by shareholders who vote by person or proxy at a duly convened
shareholders meeting (and are not otherwise excluded by law), with no votes being cast in favor of
the resolution by any person whose shares are proposed to be bought back or by their associates.
Incertain circumstances, including the division of a class of shares into
further classes of shares, the issue of additional shares orthe issue of a new
class of shares, we may require the approval of any class of shareholders
whose rights are varied or are taken tobe varied by special resolution of
shareholders generally and by special resolution of the holder of shares in
that class whose rightsare varied or taken to be varied.
Dividendsmay be paid on shares of one class but not another and at different
rates for different classes.
ExchangeControls
Australiahas largely abolished exchange controls on investment transactions.
The Australian dollar is freely convertible into U.S. dollars. Inaddition,
there are currently no specific rules or limitations regarding the export from
Australia of profits, dividends, capital orsimilar funds belonging to foreign
investors, except that certain payments to non-residents must be reported to
the Australian Cash TransactionReports Agency, which monitors such
transaction, and amounts on account of potential Australian tax liabilities
may be required to bewithheld unless a relevant taxation treaty can be shown
to apply.
14
AustralianTakeover Law
InAustralia, under the
Corporations Act 2001
, a person is prohibited from acquiring a "relevant interest" in the
issuedvoting shares in an Australia listed company if that acquisition results
in any person's voting power in that company increasing:
a) from 20% to more than 20%; or
b) from a starting point that is above 20% and below 90%,
unlessthe acquisition is made under one of the statutory exceptions set out in
the
Corporations Act 2001
.
A"relevant interest" is a wide and complex concept and includes the power to
vote in relation to voting shares or to controlthe disposal of voting shares.
Themost common exceptions under the
Corporations Act 2001
which allow a person to obtain control of a Company are:
an off-market takeover bid, which is a written
offer to all shareholders detailing the terms
on which voting shares will be purchased,
which complies with the requirements of the
Corporations Act 2001
;
a market takeover bid, which involves a broker
standing in the market and purchasing all
voting shares in a company at a certain price
on behalf of the bidder in accordance with the
Corporations Act 2001
; and
a scheme of arrangement, which is a court-approved form of transaction
between a company and its shareholders to bind a company's
shareholder to a form of rearrangement of their rights and obligations.
This form of transaction will only be binding if approved by:
over 50% of shareholders by number; and
at least 75% of the total number of votes cast by shareholders.
Othercommon exceptions used by persons who are not also seeking control include:
where shareholder approval by way of ordinary resolution (i.e. over 50%) is obtained for acquisitions of shares above 20%. The
bidder and the shareholders from whom the acquisition is to be made would be excluded from voting on such a resolution; and
an exception known as "creep" in which a person who has a voting power in the Company of at least 19% throughout the
6 months before the acquisition may acquire up to a further 3% of the Company's shares over the next six months.
SubstantialShareholder Notices
Aperson must also give notice to the Company and the ASX if they, acquire an
interest in 5% or more in the voting shares of the Company(
Substantial Holding
). Further notice of any changes of a Substantial Holding by 1% or more within
2 days of the change or within24 hours is the person has submitted a takeover
bid or if the person ceases to be a substantial holder.
ProportionalTakeover Provisions
Aproportional takeover bid is an off-market offer or bid to purchase a
proportion of securities in a certain bid class (
ProportionalTakeover Bid
).
15
Section648G of the
Corporations Act 2001
allows a company to include in its constitution provisions preventing the
registration of atransfer of securities resulting from a Proportional Takeover
Bid, unless the relevant holders of the securities approve the bid (
ProportionalTakeover Provisions
). Under the Corporations Act Proportional Takeover Provisions may only apply
for a maximum period of three years,unless renewed earlier by shareholder
approval passed by way of a special resolution. A special resolution requires
approval of 75% ofthe votes cast by shareholders present and eligible to vote
(in person, by proxy, by attorney or, in the case of a corporate Shareholder,by
a corporate representative).
TheCompany's Constitution contains Proportional Takeover Provisions. Under
these provisions where an offer has been made under a ProportionalTakeover Bid
for the securities in the Company the Directors must convene a meeting of the
holders of the relevant class of securitiesto vote on a resolution to approve
that bid. The meeting must be held and the resolution voted on at least 14
days before the last dayof the bid period. To be passed the resolution must be
approved by a majority of votes at the meeting excluding votes by the bidder
andits associates.
However,under the Corporations Act if the meeting is not held in time then a
resolution to approve the Proportional Takeover Bid will be deemedto have been
passed. If the resolution to approve the takeover bid is passed (or deemed to
have been passed) the transfer of Shares resultingfrom the acceptance of an
offer under the bid will be permitted and the transfer will be registered.
Ifthe resolution is rejected the registration of any transfers of securities
arising from an offer under the Proportional Takeover Bidwill be prohibited
and the bid will be deemed to be withdrawn.
TheForeign Acquisitions and Takeovers Act 1975
UnderAustralian law, in certain circumstances foreign persons are prohibited
from acquiring more than a limited percentage in an Australiancompany without
notice from the Australian Treasurer confirming that there is no objection to
the Transaction (
FIRB Approval
).These limitations are set forth in the Australian Foreign Acquisitions and
Takeovers Act 1975 (Cth), or the FATA.
Underthe FATA, as currently in effect, any foreign person (excluding foreign
government investors), together with associates, or parties actingin concert,
is prohibited from holding an interest of 20% or more in any Australian
company if either the value of the Company'stotal assets or total issued
securities exceeds A$310 million (or A$1,339 million in the case of investors
from the U.S. and other countrieswith which Australia has a free trade
agreement) without first obtaining FIRB Approval. "Associates" is a broadly
definedterm under the Takeovers Act and includes:
spouses, lineal ancestors and descendants, and siblings;
partners, officers of companies, the company, employers and employees, and corporations;
their shareholders related through substantial shareholdings or voting power;
corporations whose directors are controlled by the person, or who control a person; and
associations between trustees and substantial beneficiaries of trust estates.
Thedetermination of whether a person has acquired a 20% interest must be
conducted on a fully diluted basis as well as an undiluted basis.This means
that the interest of other convertible securities like options, warrants and
units should be included when determining a person'spercentage on a fully
diluted basis.
Foreigngovernment investors will require FIRB Approval prior to holding a
direct interest in the Company irrespective of the value of the consideration,or
the value of the Company's total assets or total issued securities. The term
"direct interest" means an interestof at least 10%, or an interest of at least
5% if the person who acquires the interest has entered a legal arrangement
relating to thebusinesses of the person and the Company beyond the supply of
goods or services on ordinary commercial terms; or an interest of any
percentagein the Company if the person who acquired the interest is in a
position to influence or participate in the central management and controlor
determine the policy of the Company i.e. if board representation or special
veto rights beyond those afforded to shareholders areacquired.
16
Ifthe necessary approvals are not obtained, the Treasurer may make orders
including orders requiring the acquirer to dispose of the securitiesit has
acquired within a specified period of time. Significant criminal and civil
penalties may also apply if a person proceeds withoutFIRB Approval, where it
is required in breach of the FATA.
Additionally,if a foreign person (excluding foreign government investors)
acquires a holding of a direct interest in the Company the Treasurer hasthe
power to "call in" such acquisitions anytime over a period of 10 years
following the acquisition unless FIRB Approvalhas voluntarily been obtained.
Once"called in", an investment will be reviewed under the national security
test to determine if it raises national securityconcerns, consistent with the
same process as those investors who notify on a mandatory basis. So foreign
persons would still have theopportunity to make submissions.
Whileit is expected that the overwhelming majority of investments will not be
called-in for review guidance has been released outlining theinvestment areas
in which investors are encouraged to voluntarily apply for FIRB Approval to
obtain certainty on the likelihood of theTreasurer operating the call in
power. Relevantly, voluntary notification is encouraged for investments in
pathology providers that wouldresult in the applicant holding sensitive
personal information (including medical and personal contact details) relating
to greater than100,000 Australian individuals.
Toobtain FIRB Approval an application will need to be made setting out
(amongst other things) the proposal, the person and their upstreamownership
details and the relevant particulars of the acquisition/shareholding. The
Australian Treasurer then has 30 days to considerthe application and make a
decision. However, the Australian Treasurer may extend the period by up to a
further 90 days by publishingan interim order. Applications are assessed
against a national interest test, which includes national security,
competition, data security,economic and government policies including
taxation, unless FIRB Approval is voluntarily obtained, in which case just the
national securitytest is applied.
Ifthe level of foreign ownership exceeds 40% at any time, we would be
considered a foreign person under the Takeovers Act. In such event,we would be
required to obtain the approval of the Australian Treasurer for us, together
with our associates, to acquire (i) more than20% of an Australian company or
business with assets totaling over A$266 million; or (ii) any direct or
indirect ownership in Australianresidential real estate and certain
non-residential real estate.
Thepercentage of foreign ownership in us would also be included determining
the foreign ownership of any Australian company or businessin which it may
choose to invest. Since we have no current plans for any such acquisition and
do not own any property, any such approvalsrequired to be obtained by us as a
foreign person under the Takeovers Act will not affect our current or future
ownership or lease ofproperty in Australia.
OurConstitution does not contain any additional limitations on a non-resident's
right to hold or vote our securities.
Australianlaw requires any off-market transfer of our shares to be made in
writing. Otherwise, while our ordinary shares remain listed on the
ASX,transfers take place electronically through the ASX's exchange process and
requirements. No stamp duty will be payable in Australiaon the transfer of
ADSs.
LiquidationRights
Aftersatisfaction of the claims of creditors, preferential payments to holders
of outstanding preference shares and subject to any specialrights or
restrictions attached to shares, on a winding up, any available assets must be
used to repay the capital contributed by theshareholders and any surplus must
be distributed among the shareholders in proportion to the number of fully
paid shares held by them.For this purpose, a partly paid share is treated as a
fraction of a share equal to the proportion which the amount paid bears to
thetotal issue price of the share before the winding up began.
17
Ifwe experience financial problems, the directors may appoint an administrator
to take over our operations to see if we can come to anarrangement with our
creditors. If we cannot agree with our creditors, Genetic Technologies Limited
may be wound up.
Areceiver, or receiver and manager, may be appointed by order of a court or
under an agreement with a secured creditor to take over someor all of the
assets of a company. A receiver may be appointed, for example, because an
amount owed to a secured creditor is overdue.
Wemay be wound up by order of a court, or voluntarily if our shareholders pass
a special resolution to do so. A liquidator is appointedwhen a court orders a
company to be wound up or the shareholders of a company pass a resolution to
wind up the company. A liquidatoris appointed to administer the winding up of
a company.
Descriptionof American Depositary Shares
TheBank of New York Mellon, as depositary, will register and deliver ADSs.
Each ADS represents 30 ordinary shares (or a right to receive30 ordinary
shares) deposited with HSBC Bank Australia Limited, as custodian for the
depositary. Each ADS also represents any other securities,cash or other
property which may be held by the depositary. The depositary's corporate trust
office at which the ADSs are administered,and its executive offices, are
located at 240 Greenwich Street, New York, New York 10286.
Youmay hold ADSs either (A) directly (i) by having an American depositary
receipt, which is a certificate evidencing a specific number ofADSs,
registered in your name, or (ii) by holding ADSs in the Direct Registration
System, or (B) indirectly through your broker or otherfinancial institution.
If you hold ADSs directly, you are an ADS holder. This description assumes you
hold the ADSs directly. If youhold the ADSs indirectly, you must rely on the
procedures of your broker or other financial institution to assert the rights
of ADR holdersdescribed in this section. You should consult with your broker
or financial institution to find out what those procedures are.
TheDirect Registration System is a system administered by DTC pursuant to
which the depositary may register the ownership of uncertificatedADSs, which
ownership shall be confirmed by periodic statements issued by the depositary
to the ADS holders entitled thereto.
Asan ADS holder, we will not treat you as one of our shareholders and you will
not have shareholder rights. Australian law governs shareholderrights. The
depositary will be the holder of the shares underlying the ADSs. As a holder
of ADSs, you will have ADS holder rights. Adeposit agreement among us, the
depositary and you, as an ADS holder, and the beneficial owners of ADSs set
out ADS holder rights aswell as the rights and obligations of the depositary.
New York law governs the deposit agreement and the ADSs.
Thefollowing is a summary of the material provisions of the deposit agreement.
For more complete information, you should read the entiredeposit agreement and
the form of American depositary receipt. Directions on how to obtain copies of
those documents are provided under"Where You Can Find Additional Information."
Dividendsand Other Distributions
Ifwe Pay a Dividend or Other Distribution, How Will You Receive Dividends and
Other Distributions on the Shares?
Inthe event that we pay a cash dividend or make another distribution, the
depositary has agreed to pay to you the cash dividends or otherdistributions
it or the custodian receives on shares or other deposited securities, after
deducting its fees and expenses. You will receivethese distributions in
proportion to the number of shares the ADSs represent.
Cash
. The depositary will convert any cash dividend or other cash distribution we pay
on the shares into U.S. dollars, if it can do so on a reasonable basis and can
transfer the U.S. dollars to the United States. If that is not possible or if
any government approval is needed and cannot be obtained, the deposit agreement
allows the depositary to distribute the foreign currency only to those ADR
holders to whom it is possible to do so. It will hold the foreign currency it
cannot convert for the account of the ADS holders who have not been paid. It
will not invest the foreign currency and it will not be liable for any interest.
18
Before making a distribution,
any withholding taxes, or other
governmental charges that must
be paid will be deducted. The
depositary will distribute only
whole U.S. dollars and cents
and will round fractional cents
to the nearest whole cent.
If exchange rates fluctuate during a time
when the depositary cannot convert the
foreign currency, you may lose some or
all of the value of the distribution.
Shares
. The depositary may distribute additional ADSs
representing any shares we distribute as a dividend or free
distribution. The depositary will only distribute whole
ADSs. It will sell shares which would require it
to deliver a fractional ADS and distribute the net
proceeds in the same way as it does with cash. If the
depositary does not distribute additional ADSs, the
outstanding ADSs will also represent the new shares.
Rights to Purchase Additional Shares
. If we offer holders of our securities any rights to subscribe
for additional shares or any other rights, the depositary may
make these rights available to you. If the depositary decides
it is not legal and practical to make the rights available
but that it is practical to sell the rights, the depositary will
use reasonable efforts to sell the rights and distribute the
proceeds in the same way as it does with cash. The depositary
will allow rights that are not distributed or sold to lapse.
In that case, you will
receive no value for them.
If the depositary makes rights available
to you, it will exercise the rights
and purchase the shares on your behalf.
The depositary will then deposit
the shares and deliver ADSs to you. It
will only exercise rights if you pay
it the exercise price and any other
charges the rights require you to pay.
U.S. securities laws may restrict transfers and
cancellation of the ADSs represented by shares purchased
upon exercise of rights. For example, you may not be
able to trade these ADSs freely in the United States.
In this case, the depositary may deliver restricted
depositary shares that have the same terms as the
ADSs described in this section except for changes
needed to put the necessary restrictions in place.
Other Distributions
. The depositary will send to you anything else we distribute on deposited securities
by any means it thinks is legal, fair and practical. If it cannot make the
distribution in that way, the depositary has a choice. It may decide to sell
what we distributed and distribute the net proceeds, in the same way as it does
with cash. Or, it may decide to hold what we distributed, in which case ADSs will
also represent the newly distributed property. However, the depositary is not
required to distribute any securities (other than ADSs) to you unless it receives
satisfactory evidence from us that it is legal to make that distribution.
Thedepositary is not responsible if it decides that it is unlawful or
impractical to make a distribution available to any ADS holders. Wehave no
obligation to register ADSs, shares, rights or other securities under the
Securities Act. We also have no obligation to takeany other action to permit
the distribution of ADSs, shares, rights or anything else to ADS holders.
This means that you may not receivethe distributions we make on our shares or
any value for them if it is illegal or impractical for us to make them
available to you.
Deposit,Withdrawal and Cancellation
HowAre ADSs Issued?
Thedepositary will deliver ADSs if you or your broker deposits shares or
evidence of rights to receive shares with the custodian. Upon paymentof its
fees and expenses and of any taxes or charges, such as stamp taxes or stock
transfer taxes or fees, the depositary will registerthe appropriate number of
ADSs in the names you request and will deliver the ADSs to or upon the order
of the person or persons entitledthereto.
19
HowDo ADS Holders Cancel an ADS?
Youmay turn in the ADSs at the depositary's corporate trust office. Upon
payment of its fees and expenses and of any taxes or charges,such as stamp
taxes or stock transfer taxes or fees, the depositary will deliver the shares
and any other deposited securities underlyingthe ADSs to you or a person you
designate at the office of the custodian. Or, at your request, risk and
expense, the depositary willdeliver the deposited securities at its corporate
trust office, if feasible.
VotingRights
HowDo You Vote?
Youmay instruct the depositary to vote the deposited securities, but only if
we ask the depositary to ask for your instructions.
Otherwise,you won't be able to exercise your right to vote unless you withdraw
the shares. However, you may not know about the meeting enoughin advance to
withdraw the shares.
Ifwe ask for your instructions, the depositary will notify you of the upcoming
vote and arrange to deliver our voting materials to you.The materials will (1)
describe the matters to be voted on and (2) explain how you may instruct the
depositary to vote the shares orother deposited securities underlying the ADSs
as you direct. For instructions to be valid, the depositary must receive them
on or beforethe date specified. The depositary will try, as far as practical,
subject to the laws of Australia and our Constitution, to vote or tohave its
agents vote the shares or other deposited securities as you instruct. The
depositary will only vote or attempt to vote as youinstruct or as described
below. Notwithstanding anything to the contrary contained in the deposit
agreement, the depositary will notexercise a discretionary proxy in respect of
the deposited securities for which it has not timely received instructions.
Ifwe ask the depositary to solicit your instructions but the depositary does
not receive voting instructions from you by the specifieddate, it will
consider you to have authorized and directed it to give a discretionary proxy
to a person designated by us to vote thenumber of ordinary shares represented
by your ADSs. The depositary will give a discretionary proxy in those
circumstances to vote onall questions as to be voted upon unless we notify the
depositary that:
we do not wish to receive a discretionary proxy;
there is substantial shareholder opposition to the particular questions; or
the particular question would have an adverse impact on our shareholders.
Weare required to notify the depositary if one or more of the conditions
specified above exists.
Wecannot assure you that you will receive the voting materials in time to
ensure that you can instruct the depositary to vote your shares.In addition,
the depositary and its agents are not responsible for failing to carry out
voting instructions or for the manner of carryingout voting instructions. This
means that you may not be able to exercise your right to vote and there may be
nothing you can do if yourshares are not voted as you requested.
Inorder to give you a reasonable opportunity to instruct the depositary as to
the exercise of voting rights relating to deposited securities,if we request
the depositary to act, we will try to give the depositary notice of any such
meeting and details concerning the mattersto be voted upon sufficiently in
advance of the meeting date.
Feesand Expenses
Persons Depositing or For:
Withdrawing Shares Must Pay:
US$5.00 (or less) per 100 Issuance of ADSs, including
ADSs (or portion issuances resulting from
of 100 ADSs) a distribution of shares or
rights or other property
Cancellation of ADSs for
the purpose of withdrawal,
including if the deposit
agreement terminates
US$0.02 (or less) per ADS Any cash
distribution to you
A fee equivalent to the fee that would Distribution of securities
be payable if securities distributed distributed to holders of deposited
to you had been shares and the shares securities which are distributed
had been deposited for issuance of ADSs by the depositary to ADS holders
Expenses of the depositary Cable, telex and facsimile
transmissions (when
expressly provided in
the deposit agreement)
Converting foreign
currency to U.S. dollars
Taxes and other governmental charges the depositary As necessary
or the custodian have to pay on any ADS or
share underlying an ADS, for example, stock
transfer taxes, stamp duty or withholding taxes
Any charges incurred by As necessary
the depositary or its
agents for servicing the
deposited securities
US$0.02 (or less) Depositary services
per ADS per year
20
Thedepositary collects its fees for issuance and cancellation of ADSs directly
from investors depositing shares or surrendering ADSs forthe purpose of
withdrawal or from intermediaries acting for them. The depositary collects
fees for making distributions to investorsby deducting those fees from the
amounts distributed or by selling a portion of distributable property to pay
the fees. The depositarymay collect its annual fee for depositary services by
deduction from cash distributions or by directly billing investors or by
chargingthe book-entry system accounts of participants acting for them. The
depositary may generally refuse to provide fee-attracting servicesuntil its
fees for those services are paid.
Paymentof Taxes
Youwill be responsible for any taxes or other governmental charges payable on
the ADSs or on the deposited securities represented by anyof the ADSs. The
depositary may refuse to register any transfer of the ADSs or allow you to
withdraw the deposited securities representedby the ADSs until such taxes or
other charges are paid. It may apply payments owed to you or sell deposited
securities represented bythe ADSs to pay any taxes owed and you will remain
liable for any deficiency. If the depositary sells deposited securities, it
will,if appropriate, reduce the number of ADSs to reflect the sale and pay to
you any proceeds, or send to you any property, remaining afterit has paid the
taxes.
Reclassifications, Recapitalizations Then:
and Mergers If we:
Change the nominal or par value The securities received by the depositary
of our shares Reclassify, will become deposited securities. Each
split up or consolidate any ADS will automatically represent its equal
of the deposited securities share of the new deposited securities.
Recapitalize, reorganize, The depositary may, and will if we ask it to,
merge, liquidate, sell all or deliver new ADRs or ask you to surrender
substantially all of our assets, your outstanding ADRs in exchange for new ADRs
or take any similar action identifying the new deposited securities.
Amendmentand Termination
HowMay the Deposit Agreement Be Amended?
Wemay agree with the depositary to amend the deposit agreement and the ADSs
without your consent for any reason. If an amendment adds orincreases fees or
charges, except for taxes and other governmental charges or expenses of the
depositary for registration fees, facsimilecosts, delivery charges or similar
items, or prejudices a substantial right of ADS holders, it will not become
effective for outstandingADSs until 30 days after the depositary notifies ADS
holders of the amendment.
At the time an amendment becomes effective, you areconsidered, by continuing
to hold the ADS, to agree to the amendment and to be bound by the ADRs and the
deposit agreement as amended.
HowMay the Deposit Agreement Be Terminated?
Thedepositary will terminate the deposit agreement at our direction by mailing
a notice of termination to the ADS holders then outstandingat least 90 days
prior to the date fixed in such notice for such termination. The depositary
may also terminate the deposit agreementby mailing a notice of termination to
us and the ADS holders then outstanding if at any time 90 days shall have
expired after the depositaryshall have delivered to our company a written
notice of its election to resign and a successor depositary shall not have
been appointedand accepted its appointment.
21
Aftertermination, the depositary and its agents will do the following under
the deposit agreement but nothing else: collect dividends andother
distributions on the deposited securities, sell rights and other property, and
deliver shares and other deposited securities uponcancellation of ADSs. One
year after termination, the depositary may sell any remaining deposited
securities by public or private sale.After that, the depositary will hold the
money it received on the sale, as well as any other cash it is holding under
the deposit agreementfor the
pro rata
benefit of the ADS holders that have not surrendered their ADSs. It will not
invest the money and has no liabilityfor interest. The depositary's only
obligations will be to account for the money and other cash. After termination
our only obligationswill be to indemnify the depositary and to pay fees and
expenses of the depositary that we agreed to pay.
Limitationson Obligations and Liability
Limitson Our Obligations and the Obligations of the Depositary; Limits on
Liability to Holders of ADSs
Thedeposit agreement expressly limits our obligations and the obligations of
the depositary. It also limits our liability and the liabilityof the
depositary. We and the depositary:
are only obligated to take the actions specifically set forth
in the deposit agreement without negligence or bad faith;
are not liable if either of us is prevented or delayed by law or circumstances
beyond our control from performing our obligations under the deposit agreement;
are not liable if either of us exercises
discretion permitted under the deposit agreement;
have no obligation to become involved in a lawsuit or other proceeding related to the ADSs or the deposit agreement on your
behalf or on behalf of any other party if it involves expenses or liability unless you furnish satisfactory indemnity; and
may rely upon the advice of or information from legal counsel, accountants, any person presenting shares for deposit and any other
holder of ADSs or any other person if we believe in good faith such person is competent to give such advice or information.
In the deposit agreement, we and the depositary agree
to indemnify each other under certain circumstances.
Requirementsfor Depositary Actions
Beforethe depositary will deliver or register a transfer of an ADS, make a
distribution on an ADS, or permit withdrawal of shares, the depositarymay
require:
payment of stock transfer or other taxes or other governmental charges and transfer or registration
fees charged by third parties for the transfer of any shares or other deposited securities;
satisfactory proof of the identity and genuineness of any
signature or other information it deems necessary; and
compliance with regulations it may establish, from time to time, consistent
with the deposit agreement, including presentation of transfer documents.
22
Thedepositary may refuse to deliver ADSs or register transfers of ADSs
generally when the transfer books of the depositary or our transferbooks are
closed or at any time if the depositary or we think it advisable to do so.
YourRight to Receive the Shares Underlying Your ADRs
Youhave the right to cancel the ADSs and withdraw the underlying shares at any
time except:
When temporary delays arise because: (i) the depositary has closed its transfer books or we have closed our transfer books; (ii)
the transfer of shares is blocked to permit voting at a shareholders' meeting; or (iii) we are paying a dividend on our shares.
When you or other ADS holders seeking to withdraw shares
owe money to pay fees, taxes and similar charges.
When it is necessary to prohibit withdrawals in order to comply with any laws or governmental
regulations that apply to ADSs or to the withdrawal of shares or other deposited securities.
This right of withdrawal may not be limited by
any other provision of the deposit agreement.
PLANOF DISTRIBUTION
Weare registering the ordinary shares represented by ADSs issuable upon
exercise of the warrants issued in the April 2024 Private Placementto permit
the resale of these ordinary shares represented by ADSs by the holders of
these warrants from time to time after the date ofthis prospectus. We will not
receive any of the proceeds from the sale by the selling shareholders of the
ordinary shares representedby ADSs other than proceeds from the cash exercise
of the warrants. We will bear all fees and expenses incident to our obligation
toregister the ordinary shares represented by ADSs.
Theselling shareholders may sell all or a portion of the ordinary shares
represented by ADSs beneficially owned by them and offered herebyfrom time to
time directly or through one or more underwriters, broker-dealers or agents.
If the ordinary shares represented by ADSsare sold through underwriters or
broker-dealers, the selling shareholders will be responsible for underwriting
discounts or commissionsor agent's commissions. The ordinary shares
represented by ADSs may be sold in one or more transactions at fixed prices,
at prevailingmarket prices at the time of the sale, at varying prices
determined at the time of sale, or at negotiated prices. These sales may
beeffected in transactions, which may involve crosses or block transactions,
on any national securities exchange or quotation service on which
the securities may be listed or quoted at the time of sale;
in the over-the-counter market;
in transactions otherwise than on these exchanges
or systems or in the over-the-counter market;
through the writing of options, whether such options
are listed on an options exchange or otherwise;
ordinary brokerage transactions and transactions
in which the broker-dealer solicits purchasers;
block trades in which the broker-dealer will attempt to sell the shares as agent but may
position and resell a portion of the block as principal to facilitate the transaction;
purchases by a broker-dealer as principal and
resale by the broker-dealer for its account;
an exchange distribution in accordance
with the rules of the applicable exchange;
23
privately negotiated transactions;
short sales;
sales pursuant to Rule 144;
broker-dealers may agree with the selling security holders to sell
a specified number of such shares at a stipulated price per share;
a combination of any such
methods of sale; and
any other method permitted
pursuant to applicable law.
Ifthe selling shareholders effect such transactions by selling ordinary shares
represented by ADSs to or through underwriters, broker-dealersor agents, such
underwriters, broker-dealers or agents may receive commissions in the form of
discounts, concessions or commissions fromthe selling shareholders or
commissions from purchasers of the ordinary shares represented by ADSs for
whom they may act as agent orto whom they may sell as principal (which
discounts, concessions or commissions as to particular underwriters,
broker-dealers or agentsmay be in excess of those customary in the types of
transactions involved). In connection with sales of ordinary shares
represented byADSs or otherwise, the selling shareholders may enter into
hedging transactions with broker-dealers, which may in turn engage in
shortsales of the ordinary shares represented by ADSs in the course of hedging
in positions they assume. The selling shareholders may alsosell ordinary
shares represented by ADSs short and deliver ordinary shares represented by
ADSs covered by this prospectus to close outshort positions and to return
borrowed shares in connection with such short sales. The selling shareholders
may also loan or pledge ordinaryshares represented by ADSs to broker-dealers
that in turn may sell such shares.
Theselling shareholders may pledge or grant a security interest in some or all
of the warrants or ADSs owned by them and, if they defaultin the performance
of their secured obligations, the pledgees or secured parties may offer and
sell the ordinary shares represented byADSs from time to time pursuant to this
prospectus or any amendment to this prospectus under Rule 424(b)(3) or other
applicable provisionof the Securities Act of 1933, as amended, amending, if
necessary, the list of selling shareholders to include the pledgee,
transfereeor other successors in interest as selling shareholders under this
prospectus. The selling shareholders also may transfer and donatethe ordinary
shares represented by ADSs in other circumstances in which case the
transferees, donees, pledgees or other successors ininterest will be the
selling beneficial owners for purposes of this prospectus.
Theselling shareholders and any broker-dealer participating in the
distribution of the ordinary shares represented by ADSs may be deemedto be
"underwriters" within the meaning of the Securities Act, and any commission
paid, or any discounts or concessions allowedto, any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act.
At the time a particularoffering of the ordinary shares represented by ADSs is
made, a prospectus supplement, if required, will be distributed which will
setforth the aggregate amount of ordinary shares represented by ADSs being
offered and the terms of the offering, including the name ornames of any
broker-dealers or agents, any discounts, commissions and other terms
constituting compensation from the selling shareholdersand any discounts,
commissions or concessions allowed or reallowed or paid to broker-dealers.
Underthe securities laws of some states ordinary shares represented by ADSs
may be sold in such states only through registered or licensedbrokers or
dealers. In addition, in some states ordinary shares represented by ADSs may
not be sold unless such ordinary shares havebeen registered or qualified for
sale in such state or an exemption from registration or qualification is
available and is complied with.
24
Therecan be no assurance that any selling shareholder will sell any or all of
the ordinary shares represented by ADSs registered pursuantto the registration
statement, of which this prospectus forms a part.
Theselling shareholders and any other person participating in such
distribution will be subject to applicable provisions of the ExchangeAct, and
the rules and regulations thereunder, including, without limitation,
Regulation M of the Exchange Act, which may limit the timingof purchases and
sales of any of the ordinary shares represented by ADSs by the selling
shareholders and any other participating person.Regulation M may also restrict
the ability of any person engaged in the distribution of the ordinary shares
represented by ADSs to engagein market-making activities with respect to the
ordinary shares represented by ADSs. All of the foregoing may affect the
marketabilityof the ordinary shares represented by ADSs and the ability of any
person or entity to engage in market-making activities with respectto the
ordinary shares represented by ADSs.
Wewill pay all expenses of the registration of the ordinary shares represented
by ADSs, estimated to be $63,000 in total,including, without limitation,
Securities and Exchange Commission filing fees and expenses of compliance with
state securities or "bluesky" laws; provided, however, that a selling
shareholder will pay all underwriting discounts and selling commissions, if
any.
Oncesold under the registration statement, of which this prospectus forms a
part, the ordinary shares represented by ADSs will be freelytradable in the
hands of persons other than our affiliates.
LEGALMATTERS
SichenziaRoss Ference Carmel LLP, New York, New York, has passed upon certain
legal matters regarding the securities offered hereby under U.S.law, and K&L
Gates LLP has passed upon certain legal matters regarding the securities
offered hereby under Australian law.
EXPERTS
Theconsolidated financial statements incorporated by reference in this
prospectus and elsewhere in the registration statement forthe years ended June
30, 2023 and 2022, have been incorporated by reference in reliance upon the
report of Grant Thornton Audit PtyLtd, independent registered public
accountants, upon the authority of said firm as experts in accounting and
auditing.
WHEREYOU CAN FIND MORE INFORMATION
Wehave filed with the SEC a registration statement on Form F-1 and relevant
exhibits and schedules, under the Securities Act covering theordinary shares
represented by ADSs to be sold in this offering. This prospectus, which
constitutes a part of the registration statement,summarizes material
provisions of contracts and other documents that we refer to in the
prospectus. Since this prospectus does not containall of the information
contained in the registration statement, you should read the registration
statement and its exhibits and schedulesfor further information with respect
to us and our ordinary shares and the ADSs. Our SEC filings, including the
registration statement,are also available to you on the SEC's Web site at
http://www.sec.gov.
Weare subject to the information reporting requirements of the Exchange Act
that are applicable to foreign private issuers, and under thoserequirements we
file reports with the SEC. Those other reports or other information may be
inspected without charge at the locationsdescribed above. As a foreign private
issuer, we are exempt from the rules under the Exchange Act related to the
furnishing and contentof proxy statements, and our officers, directors and
principal shareholders are exempt from the reporting and short-swing profit
recoveryprovisions contained in Section 16 of the Exchange Act. In addition,
we are not required under the Exchange Act to file annual, quarterlyand
current reports and financial statements with the SEC as frequently or as
promptly as United States companies whose securities areregistered under the
Exchange Act. However, we file with the SEC, within four months after the end
of each fiscal year, or such applicabletime as required by the SEC, an annual
report on Form 20-F containing financial statements audited by an independent
registered publicaccounting firm, and submit to the SEC, on Form 6-K,
unaudited quarterly financial information for the first three quarters of each
fiscalyear within 60 days after the end of each such quarter, or such
applicable time as required by the SEC.
25
INCORPORATIONOF CERTAIN INFORMATION BY REFERENCE
Weare allowed to incorporate by reference the information we file with the
SEC, which means that we can disclose important informationto you by referring
to those documents. The information incorporated by reference is considered to
be part of this prospectus. We incorporateby reference in this prospectus the
documents listed below, and any future Annual Reports on Form 20-F or Reports
on Form 6-K (to thatextent that such Form 6-K indicates that it is intended to
be incorporated by reference herein) filed with the SEC pursuant to the
ExchangeAct prior to the termination of the offering. The documents we
incorporate by reference are:
(1) our annual report on
Form 20-F
for the year ended June 30, 2023, filed
with the SEC on August 30, 2023;
(2) our Form 6-Ks furnished with the SEC on
August 30, 2023
;
August 31, 2023
;
September 11, 2023
;
September 11, 2023
;
September 27, 2023
,
October 30, 2023
;
November 21, 2023
;
November 24, 2023
;
November 24, 2023
;
December 1, 2023
;
December 6, 2023
;
December 7, 2023
;
December 12, 2023
;
December 19, 2023
;
December 27, 2023
;
December 28, 2023
;
January 5, 2024
;
January 9, 2024
;
January 31, 2024
;
February 7, 2024
;
February 15, 2024
;
February 20, 2024
;
February 26, 2024
(except pages 20 and 21 of Exhibit 99.1),
March 7, 2024
;
March 21, 2024
;
March 22, 2024
;
March 25, 2024
;
March 26, 2024
;
April 8, 2024
;
April 11, 2024
;
April 17, 2024
;
April 19, 2024
;
April 22, 2024
;
April 23, 2024
;
April 23, 2024
;
April 23, 2024
,
April 23, 2024
;
April 30, 2024
; and
May 06, 2024
.
(3) the description of our securities contained in
Exhibit 4.1
to our Annual Report on Form 20-F for the year ended June 30, 2020 filed with the SEC on October
22, 2020, and any amendment or report filed for the purpose of further updating that description.
Theinformation relating to us contained in this prospectus does not purport to
be comprehensive and should be read together with the informationcontained in
the documents incorporated or deemed to be incorporated by reference in this
prospectus.
Asyou read the above documents, you may find inconsistencies in information
from one document to another. If you find inconsistencies betweenthe documents
and this prospectus, you should rely on the statements made in the most recent
document. All information appearing in thisprospectus is qualified in its
entirety by the information and financial statements, including the notes
thereto, contained in the documentsincorporated by reference herein.
Wewill provide to each person, including any beneficial owner, to whom this
prospectus is delivered, a copy of these filings, at no cost,upon written or
oral request to us at the following address:
SimonMorriss
60-66Hanover Street
Fitzroy,Victoria, 3065, Australia
Tel:011613-9415-1135
Youalso may access the incorporated reports and other documents referenced
above on our website at
www.genetype.com
. The informationcontained on, or that can be accessed through, our website is
not part of this prospectus.
Youshould rely only on the information contained or incorporated by reference
in this prospectus. We have not authorized any other personto provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely onit. We are not making an offer to sell
these securities in any jurisdiction where the offer or sale is not permitted.
You should assumethat the information appearing in this prospectus is accurate
only as of the date on the front cover of this prospectus, or such
earlierdate, that is indicated in this prospectus. Our business, financial
condition, results of operations and prospects may have changed sincethat date.
26
ENFORCEABILITYOF CIVIL LIABILITIES
Weare a public limited company incorporated under the laws of Australia. All
of our directors and executive officers are non-residentsof the United States,
and all or substantially all of the assets of such persons are located outside
the United States. As a result,it may not be possible for you to:
effect service of process within the United States upon
any of our directors and executive officers or on us;
enforce in U.S. courts judgments obtained against any of our directors and executive officers or us in the
U.S. courts in any action, including actions under the civil liability provisions of U.S. securities laws;
enforce in U.S. courts judgments obtained against any of our directors and executive officers or us in courts of jurisdictions
outside the United States in any action, including actions under the civil liability provisions of U.S. securities laws; or
to bring an original action in an Australian court to enforce liabilities against
any of our directors and executive officers or us based upon U.S. securities laws.
Youmay also have difficulties enforcing in courts outside the United States
judgments obtained in the U.S. courts against any of our directorsand
executive officers or us, including actions under the civil liability
provisions of the U.S. securities laws.
27
30,000,000Ordinary Shares represented by 1,000,000 American Depositary Shares
Prospectus
,2024
PARTII
INFORMATIONNOT REQUIRED IN PROSPECTUS
Item6. Indemnification of Directors, Officers and Employees
Exceptas hereinafter set forth, there is no provision of the Company's
Constitution or any contract, arrangement or statute under whichany director
or officer of the Company is insured or indemnified in any manner against
liability which he may incur in his capacity assuch.
Rule35 of the Company's Constitution provides:
Tothe extent permitted by law:
(a)the company must indemnify each Director and Secretary and each former
Director and Secretary, and may indemnify any other officer orformer officer
of the Company (as that term is defined in section 9 of the Corporations Act
2001 (Cth)), against any liability (otherthan legal costs) incurred in acting
as a Director, Secretary, or, where applicable, other officer of the company
other than:
(i)a liability owed to the company or a related body corporate;
(ii)a liability for a pecuniary penalty order under section 1317G or a
compensation order under section 1317H of the Corporations Act 2001(Cth); or
(iii)a liability that did not arise out of conduct in good faith;
(b)the company must indemnify each Director and Secretary and each former
Director and Secretary who is or was, at the request of the company,serving as
a director or secretary of another company against any liability (other than
legal costs) incurred in acting as a directoror secretary of the other company
other than:
(i)a liability owed to the other company or a Related Body Corporate;
(ii)a liability for a pecuniary penalty order under section 1317G or a
compensation order under section 1317H of the Corporations Act 2001(Cth); or
(iii)a liability that did not arise out of conduct in good faith;
(c)the company must indemnify each Director and Secretary, and each former
Director and Secretary, and may indemnify any other officer orformer officer,
for costs and expenses incurred by a Director, Secretary or, where applicable,
other officer of the company, in defendingan action for a liability incurred
in acting as a Director, Secretary or, where applicable, other officer of the
company, except forlegal costs incurred:
(i)in defending or resisting any proceedings, whether civil or criminal, in
which the Director, Secretary or, where applicable, other officerof the
company, is found to have a liability for which they could not be indemnified
under clause (a) above;
(ii)in defending or resisting criminal proceedings in which the Director,
Secretary or, where applicable, other officer of the company, isfound guilty;
(iii)in defending or resisting proceedings brought by the ASIC or by a
liquidator for a court order if the grounds for making the order arefound by
the court to have been established, except for costs incurred in responding to
actions taken by the ASIC or a liquidator aspart of an investigation before
commencing proceedings for the court order; or
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1
(iv)in connection with proceedings for relief to the Director, Secretary or,
where applicable, other officer of the company, under the Actin which the
relief is denied by the court;
(d)the company must indemnify each Director and Secretary and each former
Director and Secretary who is or was, at the request of the company,serving as
a director or secretary of another company for costs and expenses incurred by
the Director or Secretary in defending an actionfor a liability incurred in
acting as a director or secretary of the other company, except for legal costs
incurred:
(i)in defending or resisting any proceedings, whether civil or criminal, in
which the Director or Secretary is found to have a liabilityfor which they
could not be indemnified under clause (b) above;
(ii)in defending or resisting criminal proceedings in which the Director or
Secretary is found guilty;
(iii)in defending or resisting proceedings brought by the ASIC or by a
liquidator for a court order if the grounds for making the order arefound by
the court to have been established, except for costs incurred in responding to
actions taken by the ASIC or a liquidator aspart of an investigation before
commencing proceedings for the court order; or
(iv)in connection with proceedings for relief to the Director or Secretary
under the Corporations Act 2001 (Cth) in which the relief is deniedby the
court; and
(e)the company must make a payment, or agree to make a payment, whether by way
of advance, loan or otherwise, for any reasonable legal costsincurred by a
Director, Secretary or, where applicable, other officer of the company, on the
condition that the Director, Secretary or,where applicable, other officer of
the company, must repay the amount paid by the company to the extent that the
company is found tobe not able to indemnify the Director, Secretary or, where
applicable, other officer of the company, for those legal costs.
Tothe extent permitted by law and to the extent the company is able to obtain
it, the company must maintain and pay all premiums for aninsurance policy
insuring each Director, Secretary or other officer of the company or of a
subsidiary of the company against liabilityincurred in that capacity for the
period of the person's engagement and for a 7 year period thereafter (and if
legal action iscommenced prior to the expiry of that date then until the final
determination of that action) in an amount which is not less than theamount
provided to Directors during that period, or if no such policy is in existence
then on the terms and conditions that are in substanceno less favorable to the
person than those of any insurance policy that last covered the person.
ThisRule 35 does not limit any right the person otherwise has.
Inthis Rule 35, an officer means a director or secretary of the corporation,
or a person who makes, or participates in making, decisionsthat affect the
whole, or a substantial part, of the business of the corporation, or who has
the capacity to affect significantly thecorporation's financial standing.
TheCompany maintains liability insurance policies insuring the Company's
directors and officers against certain liabilities that theymay incur in such
capacities.
Insofaras indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling personsof the
Company pursuant to the charter provision, by-law, contract, arrangements,
statute or otherwise, we have been informed that, inthe opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Actand is, therefore, unenforceable.
Item7. Recent Sales of Unregistered Securities
Setforth below are the sales of all unregistered securities of ours sold by us
within the past three years which were not registered underthe Securities Act
:
OnApril 18, 2024, the Company entered into a definitive agreement (the
"Purchase Agreement") with institutional investors,pursuant to which the
Company issued unregistered warrants to purchase up to an aggregate of
30,000,000 ordinary shares represented by1,000,000 ADSs at an exercise price
of $2.00 per ADS. The warrants are immediately exercisable and will expire
five years following thedate of issuance.
II-
2
Item8. Exhibits and Financial Statement Schedules
(a) Exhibits
3.1 Constitution of the Registrant (incorporated
by reference to Exhibit 1.1 to the Company's
Registration Statement on Form 20-F filed
with the Commission on December 21, 2010)
4.1 Description of Securities (incorporated by
reference to Exhibit 4.1 to the Company's
Annual Report on Form 20-F filed with
the Commission on October 22, 2020)
4.2 Form of Compensation Warrant issued on April
3, 2020 (incorporated by reference to Exhibit
10.3 of the Company's Report on Form 6-K
filed with the Commission on April 2, 2020)
4.3 Form of Pre-funded Warrant (incorporated
by reference to Exhibit 4.5 to
the Company's registration statement
on Form F-1/A filed on May 12, 2020)
4.4 Form of Placement Agent Warrant (incorporated
by reference to Exhibit 4.6 to
the Company's registration statement
on Form F-1/A filed on May 12, 2020)
4.5 Form of Pre-Funded Warrant issued by Genetic
Technologies Limited on April 22, 2024 (Incorporated by
reference to Exhibit 10.2 of the Company's Report on
Form 6-K filed with the Commission on April 22, 2024)
4.6 Form of Warrant issued by Genetic Technologies
Limited on April 22, 2024 (Incorporated by reference
to Exhibit 10.3 of the Company's Report on Form
6-K filed with the Commission on April 22, 2024)
4.7 Form of Placement Agent Warrant to be issued by Genetic
Technologies Limited (Incorporated by reference
to Exhibit 10.4 of the Company's Report on Form
6-K filed with the Commission on April 22, 2024)
4.8 Form of American Depositary Receipt
(incorporated by reference to Rule 424(b)(3)
filing (File No. 333-183861), filed
with the SEC on December 7, 2023)
5.1 Opinion of K&L Gates
10.1 Deposit Agreement, dated as of January 14, 2002, by and among Genetic Technologies Limited,
The Bank of New York Mellon, as Depositary, and the Owners and Holders of American Depositary
Receipts (such agreement is incorporated herein by reference to the Registration Statement on Form
F-6 relating to the ADSs (File No. 333-14270) filed with the Commission on January 14, 2002).
10.2 Staff Share Plan 2001 dated November 30, 2001
(incorporated by reference to Exhibit 4.2 to the
Company's Registration Statement on Form 20-F
filed with the Commission on August 19, 2005)
10.3 Placement Agent Agreement effective March 30,
2020 (incorporated by reference to Exhibit
10.2 of the Company's Report on Form 6-K
filed with the Commission on April 2, 2020)
10.4 Form of Securities Purchase Agreement
(incorporated by reference to Exhibit 10.9
to the Company's registration statement
on Form F-1/A filed on May 12, 2020)
10.5 Renewal of Lease over premises in Fitzroy,
Victoria, Australia with an effective
date of September 1, 2018 (incorporated by
reference to 20-F filed October 3, 2019)
10.6 Form of Securities Purchase Agreement dated
July 16, 2020 (incorporated by reference to
Exhibit 10.1 of the Company's Report on Form 6-K
filed with the Commission on July 20, 2020)
10.7 Form of Securities Purchase Agreement dated
January 21, 2021 (incorporated by reference to
Exhibit 10.1 of the Company's Report on Form 6-K
filed with the Commission on January 25, 2021)
10.8 Registration Rights Agreement dated August 12,
2021 (incorporated by reference to Exhibit 4.11
of the Company's Annual Report on Form 20-F
filed with the Commission on August 31, 2021)
10.9 Non-Solicitation Agreement dated July 18, 2021
(incorporated by reference to Exhibit 4.12
of the Company's Annual Report on Form 20-F
filed with the Commission on August 31, 2021)
10.10 Sale of Business Agreement dated July 14, 2022
(incorporated by reference to Exhibit 4.12
of the Company's Annual Report on Form 20-F
filed with the Commission on August 30, 2022)
10.11 Form of Securities Purchase Agreement
(incorporated by reference to Exhibit 10.1
to the Company's Report on Form 6-K filed
with the Commission on February 7, 2023)
10.12 Form of Securities Purchase Agreement dated as of April 18, 2024
between Genetic Technologies Limited and the investors listed
therein (Incorporated by reference to Exhibit 10.1 of the Company's
Report on Form 6-K filed with the Commission on April 22, 2024)
10.13 Deposit Agreement, dated as of January 14, 2002, by and among Genetic Technologies Limited,
The Bank of New York Mellon, as Depositary, and the Owners and Holders of American
Depositary Receipts (incorporated by reference to Exhibit 1 of the Company's Registration
Statement on Form F-6 relating to the ADSs filed with the SEC on September 12, 2012)
15.1 Appendix 4E (incorporated by reference
to Exhibit 15.1 to the Company's
Annual Report on Form 20-F filed with
the Commission on August 30, 2023)
15.2 Auditor's Independence Declaration (incorporated
by reference to Exhibit 15.2 to the
Company's Annual on Form 20-F Report filed
with the Commission on August 30, 2023)
15.3 Independent Auditor's Report (incorporated
by reference to Exhibit 15.3 to the
Company's Annual Report on Form 20-F filed
with the Commission on August 30, 2023)
23.1 Consent of Grant Thornton
23.2 Consent of K&L Gates, Australian counsel
to Company (included in Exhibit 5.1)
24.1 Power of Attorney (included on signature
page to this registration statement)
99.1 Securities Trading Policy (incorporated
by reference to Exhibit 4.13 to the
Company's Annual Report on Form 20-F filed
with the Commission on August 30, 2023)
104 Cover Page Interactive Data File (embedded
within the Inline XBRL document)
107 Fee Table
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3
(b) Financial Statement Schedules
Allschedules have been omitted because either they are not required, are not
applicable or the information is otherwise set forth in theconsolidated
financial statements and related notes thereto.
Item9. Undertakings
Theundersigned registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i)to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii)to reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-effectivea
mendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the registrationstatement.
Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securitiesoffered would not
exceed that which was registered) and any deviation from the low or high end
of the estimated maximum offering rangemay be reflected in the form of
prospectus filed with the Securities and Exchange Commission (the
"Commission") pursuantto Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in the maximum
aggregateoffering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii)to include any material information with respect to the plan of
distribution not previously disclosed in the registration statement orany
material change to such information in the registration statement;
provided,however
, that paragraphs (1)(i), (1)(ii) and (1)(iii) do not apply if the
registration statement is on Form S-3 or Form F-3 and theinformation required
to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnishedto the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference inthe registration statement, or is contained in a form of
prospectus filed pursuant to Rule 424(b) that is part of the registration
statement.
(2)That, for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to bea new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemedto 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 thetermination of the
offering.
(4)That, for the purpose of determining liability under the Securities Act to
any purchaser:
(i)Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be
deemed to be part of the registration statement as of thedate the filed
prospectus was deemed part of and included in the registration statement; and
(ii)Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or
(b)(7) as part of a registration statement in reliance onRule 430B relating to
an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose
of providing the information requiredby Section 10(a) of the Securities Act
shall be deemed to be part of and included in the registration statement as of
the earlier ofthe date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of securities in the
offeringdescribed in the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an underwriter,such
date shall be deemed to be a new effective date of the registration statement
relating to the securities in the registration statementto which the
prospectus relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offeringthereof. Provided, however, that no
statement made in a registration statement or prospectus that is part of the
registration statementor made in a document incorporated or deemed
incorporated by reference into the registration statement or prospectus that
is part ofthe registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modifyany
statement that was made in the registration statement or prospectus that was
part of the registration statement or made in any suchdocument immediately
prior to such effective date; or
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4
(5)That, for the purpose of determining liability of the undersigned
registrant under the Securities Act to any purchaser in the initialdistribution
of the securities, the undersigned registrant undertakes that in a primary
offering of securities of the undersigned registrantpursuant to this
registration statement, regardless of the underwriting method used to sell the
securities to the purchaser, if the securitiesare offered or sold to such
purchaser by means of any of the following communications, the undersigned
registrant will be a seller tothe purchaser and will be considered to offer or
sell such securities to such purchaser:
(i)Any preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule424;
(ii)Any free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to bythe undersigned
registrant;
(iii)The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned registrantor its
securities provided by or on behalf of the undersigned registrant; and
(iv)Any other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b)That, for purposes of determining any liability under the Securities Act
each filing of the registrant's annual report pursuantto Section 13(a) or
15(d) of the Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuantto Section 15(d) of the Exchange Act),
that is incorporated by reference in the registration statement shall be
deemed to be a new registrationstatement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initialbona fide offering thereof.
(c)The undersigned registrant hereby undertakes to supplement the prospectus,
after the expiration of the subscription period, to set forththe results of
the subscription offer, the transactions by the underwriters during the
subscription period, the amount of unsubscribedsecurities to be purchased by
the underwriters, and the terms of any subsequent reoffering thereof. If any
public offering by the underwritersis to be made on terms differing from those
set forth on the cover page of the prospectus, a post-effective amendment will
be filed toset forth the terms of such offering.
(d)Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling personsof the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securitiesand 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 incurredor paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) isasserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unlessin
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction thequestion whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the finaladjudication of such issue.
(e)The undersigned Registrant hereby undertakes that:
i.For purposes of determining any liability under the Securities Act of 1933,
the information omitted from the form of prospectus filedas part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the Registrant pursuantto Rule 424(b)(1) or (4) or 497(h)
under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of thetime it was declared effective.
ii.For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form ofprospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securitiesat that time shall be deemed to be
the initial bona fide offering thereof.
(f)The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee toact under subsection
(a) of Section 310 of the Trust Indenture Act in accordance with the rules and
regulations prescribed by the SECunder Section 305(b)(2) of the Trust
Indenture Act.
II-
5
SIGNATURES
Pursuantto the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets allof the
requirements for filing on Form F-1 and has duly caused this registration
statement to be signed on its behalf by the undersigned,thereunto duly
authorized, in Victoria, Australia, on May 17, 2024.
GENETIC TECHNOLOGIES LIMITED
By: /s/ Simon Morriss
Name: Simon Morriss
Title: Chief Executive Officer
POWEROF ATTORNEY
KNOWALL MEN BY THESE PRESENTED, that each director and officer of GENETIC
TECHNOLOGIES LIMITED whose signature appears below hereby appointsSimon
Morriss and Kathryn Andrews, and each of them severally, acting alone and
without the other, his/her true and lawful attorney-in-factwith full power of
substitution or re-substitution, for such person and in such person's name,
place and stead, in any and allcapacities, to sign on such person's behalf,
individually and in each capacity stated below, any and all amendments,
includingpost-effective -amendments to this Registration Statement, and to
sign any and all additional registration statements relating to thesame
offering of securities of the Registration Statement that are filed pursuant
to Rule 462(b) of the Securities Act of 1933, and tofile the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, grantingunto said attorneys-in-fact, full
power and authority to do and perform each and every act and thing requisite
or necessary to be donein and about the premises, as fully to all intents and
purposes as such person might or could do in person, hereby ratifying and
confirmingall that said attorneys-in-fact, or their substitute or substitutes,
may lawfully do or cause to be done by virtue hereof.
Pursuantto the requirements of the Securities Act of 1933, this registration
statement has been signed below by the following persons in thecapacities and
on the dates indicated.
Signature Title Date
/s/ Simon Morriss Chief Executive Officer May 17, 2024
(principal executive officer)
Simon Morriss
/s/ Kathryn Andrews Chief Financial Officer May 17, 2024
Kathryn Andrews (principal financial and accounting officer)
/s/ Dr. Lindsay Wakefield Director May 17, 2024
Dr. Lindsay Wakefield
/s/ Peter Rubinstein Director May 17, 2024
Peter Rubinstein
/s/ Dr. Jerzy Muchnicki Director May 17, 2024
Dr. Jerzy Muchnicki
II-
6
Exhibit5.1
17 May, 2024 Partner: Andrew Gaffney
andrew.gaffney@klgates.com
The Board of Directors T +61 3 9640 4329
Genetic Technologies Limited
60-66 Hanover Street Our ref: gaffnea:7377758.00047
FITZROY VIC 3065
DearSirs
FormF-1 Registration Statement
Wehave acted as Australian legal counsel for Genetic Technologies Limited ACN
009 212 328, a company incorporated under the laws of theCommonwealth of
Australia ("
Company
"), with respect to a potential offering (pursuant to its Form F-1
RegistrationStatement registered with the U.S. Securities and Exchange
Commission dated May 17 2024 ("
Prospectus
")) for resaleof up to an aggregate of 30,000,000 ordinary shares, no par
value, in the Company, ("
Offer
") represented by 1,000,000American Depositary Shares (or
ADS,
NASDAQ Symbol "GENE") ("
Securities
") issuable upon any exerciseof warrants issued by the Company in a private
placement on April 22, 2024 ("
Private Placement
"). Each of the AmericanDepositary Shares are convertible into 30 fully paid
ordinary shares in the Company ("
Shares
").
Pursuantto the terms of the Prospectus, the Company is registering Securities
under the Prospectus in order to permit the selling shareholders(identified in
the Prospectus) to offer the Securities for resale from time to time (as
described in the Prospectus).
Assumptionsin providing our opinion
Asto various questions of fact relevant to this opinion, we have relied on and
assumed the accuracy of, without independent verification:
an online search of the Company on the Australian
Securities and Investments Commission ("
ASIC
") records on 15 May 2024 ("
ASIC search
");
GTG announcement lodged with the ASX on 19 April 2024;
ASX Appendix 3B Proposed issue of securities dated and lodged with ASX on 19 April 2024 and
further ASX Appendix 3G proposed issue of securities dated and lodged with ASX on 23 April 2024;
a certificate from the Company's Company Secretary detailing the securities it has issued in Australia in the prior 12 months
and a calculation of the Company's capacity as at the date of this letter to issue securities pursuant to ASX Listing Rule 7.1;
the Company's Constitution (a copy of
which was provided to us by the Company),
collectively"
Source Documents
".
K&LGATES
Level25 South Tower 525 Collins Street Melbourne VIC 3000 Australia
GPOBox 4388 Melbourne VIC 3001 DX 405 Melbourne
T+61 3 9205 2000 F +61 3 9205 2055
klgates.com
Forthe purpose of the opinions set out below, we have also assumed, with your
agreement and without independent investigation or verification,that:
(a) all signatures are genuine and
all documents, instruments and
certificates submitted to us as
originals are authentic and conform
exactly with the authentic originals
of all documents, instruments
and certificates submitted to us
as copies or forms or originals;
(b) that each party to each document has all the
requisite power and authority (corporate
and otherwise) to execute and deliver and
perform its obligations there under;
(c) all matters of internal management required
by the constitution of each of the parties
to the relevant documents have been duly
attended to (including, without limitation,
the holding of properly constituted
meetings of the boards of directors of each
of those parties and the passing at those
meetings of appropriate resolutions);
(d) that any documents which purport to be governed by the law of any
jurisdiction other than the federal and state laws of the Commonwealth
of Australia are legal, valid and binding obligations on all of the
parties thereto and under the applicable law and that none of the
execution, delivery or performance of any document by any party thereto
violates or contravenes or is rendered invalid, not binding or
unenforceable under any applicable law under any jurisdiction other
than the federal and state laws of the Commonwealth of Australia;
(e) the Company will not engage in fraudulent or
unconscionable conduct or
conduct which is misleading or
deceptive or which is likely
to mislead or deceive in
relation to the issuance
or sale of Shares or ADS;
(f) there is no bad faith,
fraud, undue influence,
coercion or duress or similar conduct on the
part of the Company in
relation to the issuance
or sale of Shares or ADS
under the Prospectus;
(g) all information provided to us by or on behalf
of officers of the Company (including the
Source Documents) was true, correct and complete
when provided and remains so at the date of
this letter, containing all information required,
without us making any separate enquiry or
investigation other than viewing the ASIC search,
in order for us to provide this opinion;
(h) no party has contravened or will contravene
any provision of the Australian Corporations
Act 2001 (including Chapters 2E, 2J, 6
or generally sections 1041H or 1043A) ("
Corporations Act
") by the issue of the Prospectus
or giving effect to any transaction
in connection with the Prospectus or
undertaking or being involved in a
transaction related to or connected
with the Prospectus or generally in
any subsequent dealing in the Shares
or ADS issued under the Prospectus;
(i) the Company will at all times duly comply with all its obligations under
the Corporations Act, the ASX Listing Rules and otherwise required
by law including without limitation the Company will in respect of
(i) the Shares represented by ADSs under the Prospectus and (ii) any
Shares issued on conversion or exercise of the warrants issued under
the Private Placement, lodge an ASX Appendix 2A and a cleansing notice
under 708(5) of the Corporations Act upon each issue of those Shares or
otherwise as permitted under Part 6D.2 of the Corporations Act (Cth);
(j) the Company is and will be able to pay
its debts as and when they fall due and
is otherwise solvent as at the time
the Shares or ADS are issued or sold;
2
(k) the ASIC search we have examined is accurate and that the information disclosed by the search conducted
by us is true and complete and that such information has not since then been altered and that such
search did not fail to disclose any information which had been delivered for registration or filing
against the Company's records but which did not appear on the public records at the date of our search;
(l) the Company will lodge all
requisite notices with the ASX in
respect of the contemplated issue
of Securities under Offer, and
(m) any conversion of ADSs into Shares will be undertaken and completed in accordance with
the requirements of applicable US federal and state securities laws and regulations
and the terms of all agreements with the Bank of New York Mellon, as depositary
for the ADSs and HSBC Bank Australia Limited, as custodian for that depositary.
Opinion
Basedon and subject to the foregoing and in reliance thereof (including the
Source Documents), in our opinion, the 30,000,000 Shares, representedby
1,000,000 American Depositary Shares the subject of the Offer under the
Prospectus, when issued upon such a conversion of ADSs, will-
1. have been duly authorized by the Company;
2. have been validly issued, and will be fully paid and non-assessable Shares (in the Australian sense
of no further monies being owed by the purchasers to the Company for the shares) of the Company; and
3. be able to be resold.
Thisopinion is limited to the federal and state laws of the Commonwealth of
Australia and no opinion or representation is given in respectof the
application of any foreign laws to the issue or transfer of the Securities or
the contents or generally the compliance of theProspectus or any other matters
under any applicable US laws or regulations.
Applicability
Thisopinion is given as at the date of this letter and we undertake no
obligation to advise you of any changes (including but not limitedto any
subsequently enacted, published or reported laws, regulations or individual
decisions) that may occur or come to our attentionafter the date of this
letter which may affect our opinion.
Weconsent to incorporation by reference of this opinion in the Prospectus and
to the reference of this firm under the caption "LegalMatters" therein, and we
consent to the filing of this opinion as an exhibit 5.1 to the Company's
Report on Form 6-K.
Yoursfaithfully
AndrewGaffney
Partner
K&LGates
3
Exhibit23.1
CONSENTOF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Wehave issued our report dated August 30, 2023 with respect to the
consolidated financial statements of Genetic Technologies Limited
andsubsidiaries included in the Annual Report on Form 20-F for the year ended
June 30, 2023, which are incorporated by reference in thisregistration
statement. We consent to the incorporation by reference of the aforementioned
report in this Registration Statement, andto the use of our name as it appears
under the caption "Experts".
/s/GRANT THORNTON AUDIT PTY LTD
Melbourne,Australia
May17, 2024
Exhibit107
Calculationof Filing Fee Table
FormF-1
(FormType)
GeneticTechnologies Limited
(Exactname of registrant as specified in its charter)
Table1 - Newly Registered Securities
Security Security Fee Amount Proposed Maximum Fee Amount
Type Class Calculation Registered Maximum Aggregate Rate of
Title or (2) Offering Offering Registration
(1) Carry Price Price(3)(4) Fee
Forward Per
Rule Unit
(3)
Fees Equity Ordinary Rule 30,000,000 $ 0.08 $ 2,400,000 0.0001476 $ 354.24
to shares, no par 457(c)
Be value, underlying
Paid Warrants
to Purchase
American
Depositary
Shares (5)
Fees
Previously
Paid
Total $ 2,400,000 $ 354.24
Offering
Amounts
Total -
Fees
Previously
Paid
Total -
Fee
Offsets
Net $ 354.24
Fee
Due
(1) American Depositary Shares, or ADSs, issuable upon deposit of the ordinary
shares registered hereby have been registered pursuant to a separate
registration statement on Form F-6 (File No. 333-183861). Each ADS
represents thirty (30) of the Registrant's ordinary shares, no par value.
(2) This registration statement also includes an indeterminate number of ordinary shares
underlying the ADSs that may become offered, issuable or sold to prevent dilution resulting
from stock splits, stock dividends and similar transactions, which are included pursuant
to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act").
(3) Estimated solely for the purpose of calculating the registration fee pursuant to Rule
457(c) promulgated under the Securities Act based on the average of the equivalent high
and low sales prices of the Registrant's ADSs on the Nasdaq Capital Market on May 14,
2024, divided by 30 (to give effect to the 1:30 ratio of ADSs to ordinary shares).
(4) The Registrant will not receive any proceeds from
the sale of its ADSs by the selling shareholders.
(5) Consists of 30,000,000 ordinary shares represented by 1,000,000 ADSs issuable
upon the exercise of warrants. All 30,000,000 ordinary shares represented
by 1,000,000 ADSs are to be offered for resale by the selling shareholders
named in the prospectus contained in this Registration Statement on Form F-1.
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