UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 40-F/A
(Amendment No. 1)
¨ REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934
OR
xANNUAL REPORT PURSUANT TO SECTION 13(A) OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year endedDecember 31, 2014 | Commission File Number000-29338 |
CARDIOME PHARMA CORP.
(Exact name of Registrant as specified in its charter)
Canada
(Province or other jurisdiction of incorporation or organization)
2834
(Primary Standard Industrial Classification Code Number (if applicable))
Not Applicable
(I.R.S. Employer Identification Number (if applicable))
1441 Creekside Drive, 6th Floor
Vancouver, British Columbia, Canada V6J 4S7
(604) 677-6905
(Address and telephone number of Registrant’s principal executive offices)
CT Corporation
111 Eighth Avenue
New York, New York 10011
(212) 894-8940
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Securities registered or to be registered pursuant to Section 12(b) of the Act:
Title of each class | Name of each exchange on which registered |
Common Shares, no par value | Nasdaq Stock Market |
Securities registered or to be registered pursuant to Section 12(g) of the Act:
None
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None
For annual reports, indicate by check mark the information filed with this Form:
¨ Annual Information Form | x Audited Annual Financial Statements |
Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report:
The Registrant had 16,591,002 Common Shares outstanding as at December 31, 2014.
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.
Yes x No ¨
Indicate by check mark whether registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files).
Yes x No ¨
EXPLANATORY NOTE
This Amendment No. 1 to the Registrant's Annual Report on Form 40-F (“Amendment No. 1”) amends the Company’s Annual Report on Form 40-F for the year ended December 31, 2014 filed with the Securities and Exchange Commission on March 27, 2015 (the “Original Form 40-F”). The only amendments to the Original Form 40-F are as follows: (i)Exhibit 1.2(Audited consolidated financial statements of the Company and notes thereto for the fiscal years ended December 31, 2014 and 2013 together with the Report of Independent Registered Public Accounting Firm thereon) is being filed solely to include a) an amended Report of Independent Registered Public Accounting Firm with respect to the Company’s internal control over financial reporting (the “ICFR” report); and b) an amended Report of Independent Registered Public Accounting Firm with respect to the Company’s financial statements to reference the amended ICFR report; and (ii)Exhibit 1.3 (Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2014) is being filed solely to include amended disclosure relating to management’s identification of a material weakness in the Company’s internal control over financial reporting as of December 31, 2014. This Amendment No. 1 does not amend the audited consolidated financial statements of the Company and the notes thereto for the years ended December 31, 2014 and 2013.
In addition, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended, new certifications by the Registrant’s principal executive officer and principal financial officer are filed herewith as Exhibits 31.1 and 32.1 to this Amendment No. 1, and a new consent of KPMG LLP is filed herewith as Exhibit 23.1.
Other than as discussed above, all information in the Original Form 40-F is unchanged and is not reproduced in this Amendment No. 1. Except as may be specifically indicated herein, the Original Form 40-F continues to describe conditions as of the date of the Original Form 40-F and the Company has not modified or updated other disclosures presented in the Original Form 40-F. This Amendment No. 1 does not reflect events occurring after the date of the Original Form 40-F nor does it modify or update disclosures affected by subsequent events. Accordingly, this Amendment No. 1 should be read in conjunction with the Original Form 40-F.
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A. | Disclosure Controls and Procedures |
Disclosure controls and procedures are defined by the Securities and Exchange Commission (the “Commission”) as those controls and other procedures that are designed to ensure that information required to be disclosed by the Registrant in reports filed or submitted by it under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms.
In connection with the filing of this Amendment No. 1, the Registrant's Chief Executive Officer and Chief Financial Officer have re-evaluated the effectiveness of the Registrant's disclosure controls and procedures and have concluded that such disclosure controls and procedures were not effective as at December 31, 2014. See also "Disclosure Controls and Procedures" in the amended Management's Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2014, filed as Exhibit 1.3 to this Amendment No. 1.
B. | Management’s Annual Report on Internal Control over Financial Reporting |
The Registrant’s management, including its Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over financial reporting (as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) and has designed such internal control over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States of America. Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies and procedures may deteriorate.
In connection with the filing of this Amendment No. 1, the Registrant’s management has re-evaluated the design and operation of its internal control over financial reporting as of December 31, 2014 and has concluded that such internal control over financial reporting was not effective as of December 31, 2014. This assessment was based on the framework inInternal Control—Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission. Management identified a material weakness which is disclosed in the amended Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2014, filed as Exhibit 1.3 to this Amendment No. 1.
C. | Attestation Report of the Independent Registered Public Accounting Firm |
The updated attestation report of KPMG LLP (“Independent Auditors”), the Registrant's Independent Registered Public Accounting Firm, on management's assessment of the Registrant's internal control over financial reporting is included in the "Report of Independent Registered Public Accounting Firm" that accompanies the Registrant's Audited Consolidated Financial Statements for the fiscal year ended December 31, 2014, filed as Exhibit 1.2 to this Amendment No. 1.
D. | Changes in Internal Control over Financial Reporting |
In connection with the filing of this Amendment No. 1, management also concluded that the identification of the material weakness was a change that has materially affected, or is reasonably likely to materially affect, internal control over financial reporting. Management has described its remediation plan for the identified material weakness in the amended Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2014.
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
A. | Undertaking |
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities in relation to which the obligation to file an annual report on Form 40-F arises or transactions in said securities.
B. | Consent to Service of Process |
The Registrant has previously filed with the Commission a written irrevocable consent and power of attorney on Form F-X in connection with its Common Shares. Any change to the name or address of the agent for service of process shall be communicated promptly to the Commission by an amendment to the Form F-X.
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EXHIBITS
The following exhibits are filed as part of this report:
Exhibit No. | Description | |
1.1 | Annual Information Form for the fiscal year ended December 31, 2014.* | |
1.2 | Audited Consolidated Financial Statements for the fiscal year ended December 31, 2014. | |
1.3 | Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2014. | |
23.1 | Consent of KPMG LLP. | |
31.1 | Certifications of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
32.1 | Certification of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
101 | Interactive Data File* | |
* | Previously filed |
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SIGNATURES
Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this amendment no. 1 to the annual report to be signed on its behalf by the undersigned, thereto duly authorized.
Date: July 27, 2015
CARDIOME PHARMA CORP. | |||
By: | /s/ William Hunter | ||
Name: | William Hunter | ||
Title: | President and Chief Executive Officer |
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EXHIBIT INDEX
Exhibit No. | Description | |
1.1 | Annual Information Form for the fiscal year ended December 31, 2014.* | |
1.2 | Audited Consolidated Financial Statements for the fiscal year ended December 31, 2014. | |
1.3 | Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2014. | |
23.1 | Consent of KPMG LLP. | |
31.1 | Certifications of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 302 of the Sarbanes-Oxley Act of 2002. | |
32.1 | Certification of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 906 of the Sarbanes-Oxley Act of 2002. | |
101 | Interactive Data File* | |
* | Previously filed |
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