Description

/s/ Sylvia Cheung

Oculis Holding AG

Bahnhofstrasse 7

6300 Zug

Basel

Aeschenvorstadt 4

CH-4010 Basel

Switzerland

Phone +41 58 211 33 00

Fax +41 58 211 33 10

Zurich

Schützengasse 1

CH-8021 Zurich

Switzerland

Phone +41 58 211 34 00

Fax +41 58 211 34 10

Civil Law Notaries in

Basel-City and Baselland

We have acted as special Swiss counsel to Oculis Holding AG (the ”Company”), a company incorporated under the laws of the Switzerland, in connection with the Company’s registration statement on Form F-3 (the “Registration Statement”), including a base prospectus (the “Base Prospectus”) and a sales agreement prospectus (the “Sales Agreement Prospectus”, and together with the Base Prospectus, the “Prospectuses”), as amended or supplemented, to be filed with the United States Securities and Exchange Commission (the “SEC”) with respect to (a) the registration under the U.S. Securities Act of 1933, as amended (the ”Securities Act”), of certain securities, including registered shares of the Company, each with a nominal value of CHF 0.01 (the ”Ordinary Shares”) with an aggregate offering price of up to USD 300’000’000 as further described in the Registration Statement, and (b) a prospectus supplement dated 11 April 2024 and filed with the SEC on 11 April 2024 (the Prospectus Supplement), relating to the offering and sale by the Company of 5’000’000 Ordinary Shares (the “Offered Shares”).

As such counsel, we have been requested to render an opinion as to certain matters of Swiss law.

I.   BASIS OF OPINION

This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof and as currently applied by Swiss courts. Such laws and the interpretation thereof are subject to change. In the absence of explicit statutory law, we base our opinion on our independent professional judgement.

This opinion is also confined to the matters stated herein and is not to be read as extending, by implication or otherwise, to any document referred to in the Documents (other than listed below) or to any other matter.

For purposes of this opinion we have not conducted any due diligence or similar investigation as to factual circumstances, which are or may be referred to in the Documents, and we express no opinion as to the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.

For the purpose of giving this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the following documents (the ”Documents”):

a)  an electronic copy of the Registration Statement, including the Prospectuses;

b)  an electronic copy of the Prospectus Supplement;

c)  an uncertified electronic copy of an extract from the Commercial Register of the Canton of Zug (the “Commercial Register”) dated 11 April 2024 regarding the Company, retrieved online (the “Register Extract”);

d)  the articles of association (Statuten) of the Company dated 7 March 2024, shown on the Register Extract as being the most recent articles of association filed with the Commercial Register (the “Articles of Association”); and

e)  an electronic copy of the written resolution of the Company’s board of directors (the “Board”), dated as of 10 April 2024, approving, among other things, (i) the filing of the Prospectus Supplement with the SEC and (ii) the issuance, offering and sale of the Offered Shares (the “Board Resolutions”).

No documents have been reviewed by us in connection with this opinion other than those listed above. Accordingly, our opinion is limited to the above Documents and their legal implications under Swiss law.

All terms used in this opinion in uppercase form shall have the meaning ascribed to them in the Registration Statement, unless otherwise defined herein.

II.   ASSUMPTIONS

In rendering the opinion below, we have assumed the following:

a)  all documents produced to us as originals are authentic and complete, and all documents produced to us as copies (including, without limitation, electronic copies) conform to the original;

b)  all documents produced to us as originals and the originals of all documents produced to us as copies were duly executed and certified, as applicable, by the individuals purported to have executed or certified, as the case may be, such documents, and any electronic signatures on any such document have been affixed thereto by the individual to whom such electronic signature belongs;

c)  to the extent relevant for purposes of this opinion, any and all information contained in the Documents is and will be true, complete and accurate at all relevant times;

d)  the Board Resolutions have been duly resolved in a duly executed written resolution and have not been rescinded or amended and are in full force and effect;

e)  in relation to the Company, there have been no changes of the Articles of Association or their respective registration in the Commercial Register or compared to the Articles of Association in the form examined by us;

f)   the Registration Statement, the Prospectuses and the Prospectus Supplement have been filed by the Company;

g)  all authorizations, approvals, consents, licenses, exemptions, other than as required by mandatory Swiss law applicable to the Company or the Articles of Association, and other requirements for the filing of the Registration Statement, the Prospectuses and the Prospectus Supplement or for any other activities carried on in view of, or in connection with, the performance of the obligations expressed to be undertaken by the Company in the Registration Statement, the Prospectuses and the Prospectus Supplement have been duly obtained and are and will remain in full force and effect, and any related conditions to which the parties thereto are subject have been satisfied;

h)  (i) the number of Offered Shares will not exceed the number of registered shares that may be issued under the Articles of Association (as may be amended from time to time), (ii) prior to the offering and sale of any Offered Shares, the Prospectus Supplement will have become effective, and (iii) the issuance of and payment for the Offered Shares will be made in accordance with the Articles of Association (as may be amended from time to time), the Registration Statement, the Prospectuses, the Prospectus Supplement and Swiss law;

i)   prior to the issuance, offering and sale of any Offered Shares, the board of directors of the Company will have duly authorized the issuance, offering and sale of such Offered Shares and will have validly excluded the pre-emptive rights of the existing shareholders for purposes of the issuance, offering and sale of such Offered Shares as contemplated in the Registration Statement, the Prospectuses, the Prospectus Supplement, as applicable, and such authorization and exclusion will not have been amended and will be in full force and effect until the issuance of all such Offered Shares;

j)   the Company has not entered and will not enter into any transaction which could be construed as repayment of share capital (Einlagenrückgewähr) and has not undertaken and will not undertake an acquisition in kind (Sacheinlage) without complying with the formal procedure set forth in article 634 of the Swiss Code of Obligations (the ”CO”), a set-off against a claim (Verrechnung) without complying with the formal procedure set forth in article 634a CO, or a conversion of equity surplus (Umwandlung von frei verwendbarem Eigenkapital) without complying with the formal procedure set forth in article 652d CO; and

k)  there are no provisions of the laws of any jurisdiction outside Switzerland which would have any implication for the opinion we express and that, insofar as the laws of any jurisdiction outside Switzerland may be relevant, such laws have been or will be complied with.

III. OPINION

Based upon the foregoing and subject to the qualifications set out below, we are of the opinion that the Offered Shares, if and when issued and paid for pursuant to the Articles of Association, the underlying contractual arrangements and Swiss law – in particular after the issue price for such Offered Shares has been paid-in in accordance with the Articles of Association, the underlying contractual arrangements and Swiss law and upon registration of the corresponding share capital increase with the Commercial Register of the Canton of Zug – and if and when such Offered Shares have been entered into the Company’s book of uncertificated securities, have been or will be, as applicable, validly issued, fully paid as to their nominal value and non-assessable.

IV.  QUALIFICATIONS

This opinion is subject to the following qualifications:

a)  This opinion is limited to matters of Swiss law as in force on the date hereof and as applied and construed by the courts of Switzerland.

b)  The exercise of voting rights and rights related thereto with respect to any Offered Shares is only permissible after registration in the Company’s share register as a shareholder with voting rights in accordance with the provisions of, and subject to the limitations provided in, the Articles of Association.

c)  We express no opinion as to whether the Registration Statement, the Prospectuses or the Prospectus Supplement are accurate, true, correct, complete or not misleading. In particular, and without limitation to the foregoing, we express no opinion as to whether the Registration Statement, the Prospectuses and the Prospectus Supplement provide sufficient information for investors to reach an informed assessment of the Company and the Offered Shares.

d)  Notwithstanding or irrespective of registration of the capital increase with respect to the Offered Shares out of the capital band (Kapitalband) reserved for the issuance of Offered Shares, with the Commercial Register, the Board Resolutions or related resolutions of the general meeting may be challenged by a dissenting shareholder of the Company or others in court or otherwise. However, we believe that such challenge of the Board Resolutions or related resolutions of the general meeting after registration of the Offered Shares with the Commercial Register, even if successful, would not in itself void such Offered Shares.

e)  The opinion set forth herein is limited to the matters specifically addressed herein, and no other opinion or opinions are expressed or may be implied or inferred. In particular, we express no opinion as to any commercial, calculating, auditing or other non-legal matters. Further, we express in this opinion no opinion as to tax law.

* * *

We have rendered this opinion as of the date hereof and we assume no obligation to advise you of changes that may thereafter be brought to our attention.

In this opinion, Swiss legal concepts are expressed in English terms and not in their original terms. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions.

We hereby consent to the filing of this opinion as an exhibit to the Company’s Report on Form 6-K filed on the date hereof and to the incorporation by reference of this opinion in the Registration Statement, as amended, and further consent to the reference to our name under the captions “Legal Matters” and “Service of Process and Enforceability of Civil Liabilities under U.S. Securities Laws” in the Prospectus Supplement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

This opinion is governed by and shall be construed in accordance with the laws of Switzerland.

[Signature Page Follows]

/s/ Dr. Matthias Staehelin

the Investor (as defined below); to

Oculis Holding AG, a public limited liability company (de. Aktiengesellschaft), incorporated and existing under the laws of Switzerland, having its registered office at Bahnhofstrasse 7, CH-6300, Zug, Switzerland, and registered with the Commercial Register of the Canton of Zug under number CHE-396.695.611 (the “Issuer”),

The Issuer is a late clinical-stage biopharmaceutical company, incorporated in Switzerland, with substantial expertise in therapeutics used to treat ocular diseases, and engaged in the development of innovative drug candidates which have the potential to address large unmet medical needs.

An offering to subscribe to ordinary shares in the capital of the Issuer has solely been made to fewer than 150 natural or legal persons in Iceland and Europe (other than professional clients or eligible counterparties) and/or the minimum total consideration payable by each subscriber is not less than the ISK equivalent of EUR 100,000 or in any other circumstances falling within article 1 paragraph 4 of Regulation (EU) 2017/1129, which shall include any relevant implementing measures in each member state of the European Economic Area (including Icelandic Act, no. 14/2020, on prospectuses to be published when securities are offered to the public or admitted to trading on a regulated market, and any secondary legislation thereunder).

The Investor wishes to subscribe for the Subscription Shares on the terms and subject to the conditions set out in this Offer.

SUBSCRIPTION

Subject to the acceptance of this Offer by the Issuer and representations and warranties of the Investor set forth in Clause 4 being true, accurate and correct on the date hereof, the Issuer unconditionally commits to subscribe for the number of shares allocated to the Investor (“Allocated Subscription Shares”), cf. clause 1.3 (the “Allocation”), at the accepted Subscription Price (the “Final Subscription Price”), for an amount corresponding to the multiple of the Allocated Subscription Shares and the Final Subscription Price (the “Investment Amount”), not being greater than the Investor Commitment Amount.

Furthermore, the Investor grants any personnel of Arctica Finance hf.’s Corporate Finance an irrevocable power of attorney to duly execute a subscription form, in the form set out in Schedule 1 (the “Subscription Form”), by signing the Subscription Form, and filling out numbers (Allocated Subscription Shares and Final Subscription Price) in the Subscription Form on behalf of the Investor, in accordance with the terms and conditions of this Offer and the Allocation.

The Issuer may, if there will be an oversubscription, reduce the Investor’s subscription in its sole discretion.

CLOSING CONDITIONS

The obligations of the Parties in respect of the subscription and issue of the Allocated Subscription Shares under Clauses 3.1 are subject to the following conditions (the “Closing Conditions”):

That a prospectus relating to the admission to trading and listing of the Allocated Subscription Shares on Nasdaq Iceland Main Market, has been approved by the Icelandic Financial Supervisory Authority.

That BBA Fjeldco ehf. has received a duly completed Subscription Form, to be held in escrow and released to the Issuer upon the condition stipulated in Clause 2.1(a) being satisfied.

That the board of directors of the Issuer approves the transaction contemplated by this Offer and that the Offer is subsequently countersigned by the Issuer, and the Investor is informed of the Final Subscription Price (being applicable to all newly issued shares subscribed for by the Investor as well as other investors), the Allocated Subscription Shares, and the investment Amount, within the timeline stipulated in Clause 5.1.

In addition to the Closing Conditions, the obligations of the Issuer in respect of the subscription and issue of the Allocated Subscription Shares are subject to the Issuer receiving the Investment Amount in accordance with this Offer and that the representation and warranties of the Investor under Clause 4 being true, accurate and correct on the date hereof.

PAYMENT OF THE INVESTOR COMMITMENT AMOUNT AND DELIVERY OF SUBSCRIPTION SHARES

Payment of the Investment Amount shall take place on 17 April 2024 (subject to Closing Conditions being satisfied), unless otherwise agreed in writing between the Parties (the “Payment Date”).

At the Payment Date the Investor shall pay the Investment Amount in immediately available funds into a bank account, as designated by the Issuer.

As soon as reasonably practicable following a receipt of the funds set out in 3.2 above, the Issuer shall:

pass a board resolution implementing the capital increase;

file with the Commercial Register in Zug, Switzerland the capital increase;

upon completion of the registration of the capital increase in the Commercial Register in Zug, register the Investor as owner of the Allocated Subscription Shares in the share registry of the Issuer;

deliver the Allocated Subscription Shares into the Investor’s custody account(s) (VS account(s)), as directed by the Investor, no later than 5 (five) business days from Payment Date;

file a prospectus to an effective registration statement filed with the U.S. Securities and Exchange Commission to register the issuance of the Allocated Subscription Shares through a “registered direct offering”; and

as soon as reasonably practicable following completion of each of the steps set out above, request that the Allocated Subscription Shares are admitted to trading on Nasdaq Iceland hf.’s Main Market.

INVESTOR REPRESENTATIONS AND WARRANTIES

The Investor represents and warrants to the Issuer that:

The Investor has full corporate power and authority to exercise its rights and to perform its obligations pursuant to this Offer, and all corporate and other action required to authorise its execution of this Offer and the performance of its obligations there under has been duly taken. The Investor has been duly formed or incorporated and is validly existing and is in good standing under the laws of its jurisdiction of formation or incorporation (to the extent such concept exists in such jurisdiction), with power and authority to enter into, deliver and perform its obligations under this Offer.

The execution, delivery and performance of this Offer will not:

contravene any law, regulation, judgment or order to which the Investor is subject;

result in any actual or potential breach of or default under any obligation agreement, instrument or consent to which the Investor is a party; or

contravene any provision of its articles of association.

At Payment Date, the Investor will have sufficiently available funds to satisfy its obligations under this Offer.

The Investor confirms that it is solely basing its subscription to the Subscription Shares on publicly available information.

The Investor has the requisite knowledge and experience to be capable of evaluating the merits and risks of an investment in the Subscription Shares and that the Investor is capable of protecting its interests in connection with this Offer, and if not, that it has sought expertise advice from a recognized third party.

The Investor is aware that the Issuer is authorized to accept subscriptions made by Investor, as well as other subscribers, in such amounts as determined by the Issuer, acting in its sole discretion.

The Investor acknowledges that it is not relying upon, and has not relied upon, any statement, representation or warranty made by any person, firm or corporation, any of their respective affiliates or any control persons, officers, directors, employees, partners, agents or representatives of any of the foregoing, in making its investment or decision to subscribe to the Subscription Shares.

Alone, or together with any professional advisor(s), the Investor has adequately analysed and fully considered the risks related to subscription to the Subscription Shares and determined that the Subscription Shares are a suitable investment for the Investor and that the Investor is able at this time and in the foreseeable future to bear the economic risk of a total loss of the Investor’s investment. The Investor acknowledges specifically that a possibility of total loss exists.

The Investor acknowledges and agrees that there have been no representations, warranties, covenants, financial advice or agreements made to the Investor by or on behalf of the Issuer, expressly or by implication, in connection with Investor’s subscription to the Subscription Shares or any other factors which may determine or otherwise affect the price of the aforementioned.

The Investor has placed no reliance on written or oral statements made (directly or indirectly) by the Issuer, or their respective affiliates, officers, directors, agents, employees or its advisers, and has made such due diligence investigation into the subscription, the Subscription Shares and/or the Issuer and its business as the Investor has deemed appropriate.

TERM AND CONSENT

This Offer is valid from the time of submission until 16:00 GMT of 11 April 2024. If the Issuer’s acceptance of this Offer has not been delivered to the Investor by that time, the Offer shall automatically expire and have no effect.

To accept this Offer, the Issuer shall deliver a signed copy to Investor to the e-mail address stated above in “Information on the Investor”, together with information on Allocated Subscription Shares, Final Subscription Price and the Investment Amount, before the expiry of the Offer according to clause 5.1, and the Issuer’s acceptance shall take effect at the time of despatch.

Offers whereas the Subscription Price is below USD 11.50 per share will not be accepted by the Issuer.

GOVERNING LAW

JURISDICTION

COUNTERPARTS

$59 million financing includes participation from new Icelandic institutional and existing investors; Extends cash runway until 2H 2026

The Central Bank of Iceland, Financial Supervision has approved Oculis’s prospectus related to the admission of its ordinary shares to trade on the Nasdaq Iceland Main Market; Oculis will announce the first day of trading with at least one day advance notice

On-track to report topline data from OCS-02 (licaminlimab) Phase 2b RELIEF trial in Dry Eye Disease (DED) in Q2 2024