As filed with the Securities and Exchange Commission on July 31, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
NOVELION THERAPEUTICS INC.
(Exact name of registrant as specified in its charter)
British Columbia, Canada |
| N/A |
(State or other jurisdiction of |
| (I.R.S. Employer |
incorporation or organization) |
| Identification No.) |
887 Great Northern Way, Suite 250
Vancouver, British Columbia
Canada V5T 4T5
(Address, including zip code, of registrant’s principal executive offices)
Novelion Therapeutics Inc. 2017 Employee Stock Purchase Plan
(Full title of the Plan)
Benjamin Harshbarger
General Counsel and Secretary
Novelion Therapeutics Inc.
887 Great Northern Way, Suite 250
Vancouver, British Columbia
Canada V5T 4T5
(604) 707-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Paul M. Kinsella |
| Janet Grove |
Zachary R. Blume |
| Norton Rose Fulbright LLP |
Ropes & Gray LLP |
| 1800 — 510 West Georgia Street |
Prudential Tower |
| Vancouver, British Columbia |
800 Boylston Street |
| Canada V6B 0M3 |
Boston, MA 02199-3600 |
| (604) 641-4824 |
(617) 951-7000 |
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Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b2 of the Exchange Act.
Large accelerated filer o | Accelerated filer x |
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Non-accelerated filer o (Do not check if a smaller reporting company) | Smaller reporting company o |
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| Emerging growth company o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
CALCULATION OF REGISTRATION FEE
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Title of |
| Amount |
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| Proposed |
| Amount of |
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Common shares, without par value, under the Novelion Therapeutics Inc. 2017 Employee Stock Purchase Plan (the “ESPP”) |
| 278,710 | (2) | $ | 9.16 | (3) | $ | 2,552,983.60 |
| $ | 295.89 |
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(1) Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 (the “Registration Statement”) also covers an indeterminate number of securities that may become issuable under the ESPP described herein as a result of a stock dividend, market split or other recapitalization.
(2) Represents common shares (“Common Shares”) of Novelion Therapeutics Inc. (the “Registrant”) reserved for issuance in respect of future purchases under the ESPP. For more details, please see the explanatory note following this page.
(3) Estimated solely for purposes of calculating the registration fee in accordance with Rules 457(c) and 457(h) under the Securities Act, based on a price of $9.16 per share, which represents the average of the high and low sales prices per Common Share as reported on The NASDAQ Stock Market on July 27, 2017.
(4) Determined in accordance with Section 6(b) of the Securities Act at a rate equal to $115.90 per $1,000,000 of the proposed aggregate offering price.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the ESPP as specified by Rule 428(b)(1) of the Securities Act. In accordance with Rule 428 of the Securities Act and the requirements of Part I of Form S-8, such documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. The Registrant shall maintain a file of such documents in accordance with the provisions of Rule 428(a)(2) of the Securities Act. Upon request, the Registrant shall furnish to the Commission or its staff a copy of any or all of the documents included in the file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Commission allows the Registrant to incorporate by reference the information the Registrant files with it, which means that the Registrant can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this Registration Statement, and information that we file later with the Commission will automatically update and supersede this information. The Registrant incorporates by reference the following documents that have been filed by it with the Commission:
1. The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016, filed with the Commission on March 30, 2017;
2. The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2017, filed with the Commission on May 9, 2017;
3. The Registrant’s Current Reports on Form 8-K filed with the Commission on January 9, 2017, March 7, 2017, March 15, 2017, March 31, 2017, April 13, 2017, April 19, 2017, May 9, 2017, June 1, 2017 and June 29, 2017; and
4. The description of the Registrant’s Common Shares contained in the Registrant’s Registration Statement on Form S-3, filed on October 24, 2016.
In addition, all documents that the Registrant subsequently files pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. However, any documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the Commission, including, without limitation, the certifications required by Rule 13a-14(b) or Rule 15d-14(b) under the Exchange Act, any information furnished pursuant to Item 2.02 or 7.01 of Form 8-K and certain exhibits furnished pursuant to Item 9.01 of Form 8-K, shall not be deemed to be incorporated by reference in this Registration Statement.
Any statement in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 160 of the Business Corporations Act (British Columbia) (the “BCA”), the Registrant may indemnify an eligible party, including, but not limited to, a director or officer of the Registrant, a former director or officer of the Registrant or another individual who acts or acted at the Registrant’s request as a director or officer, or in a similar capacity, against all judgments, penalties or fines awarded or imposed in, or an amount paid in settlement of, a proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of such party having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the Registrant or an associated corporation, to which such party is or may be liable. Indemnification will be prohibited if (i) giving indemnity or paying expenses is or was prohibited in the Registrant’s Memorandum or Articles, (ii) if in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interests of the Registrant or (iii) in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful. The BCA also provides, under Section 162, that the Registrant may also advance moneys to a director, officer or other individual for costs, charges and expenses actually and reasonably incurred, as such costs, charges and expenses are incurred in advance of the final disposition of such a proceeding; however, the individual must agree in writing to undertake that if it is ultimately determined that the payment of expenses is prohibited by any of conditions (i), (ii) or (iii) above, the eligible party will repay the amounts advanced.
The Registrant’s Articles provide that the Registrant shall indemnify, and pay expenses in advance of the final disposition of a proceeding of, a director or officer, a former director or officer or a person who acts or acted at the Registrant’s request as a director or officer, or in a similar capacity of another entity, and the heirs and personal or other legal representatives of such a person, in accordance with, and to the fullest extent and in all circumstances permitted by, the BCA.
The Registrant has entered into indemnification agreements with its officers and directors in respect of any legal claims or actions initiated against them in their capacity as officers and directors of the Registrant or the Registrant’s subsidiaries in accordance with applicable law. These agreements include bearing the reasonable cost of legal representation in any legal or regulatory action in which they may become involved in their capacity as the Registrant’s officers and directors. Pursuant to such indemnities, the Registrant bears the cost of the representation of certain officers and directors.
The Registrant maintains insurance for certain liabilities incurred by its directors and officers acting in covered capacities.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The list of exhibits filed as part of this Registration Statement is set forth in the Exhibit Index immediately preceding the exhibits hereto and is incorporated herein by reference.
Item 9. Undertakings.
(a) The undersigned 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-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby further undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in this Registration Statement shall be deemed to be a new Registration Statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Toronto in Ontario, Canada, on July 31, 2017.
| NOVELION THERAPEUTICS INC. | |
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| By: | /s/ Mary Szela |
| Name: | Mary Szela |
| Title: | Chief Executive Officer and Director |
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose signature appears below constitutes and appoints Mary Szela, Chief Executive Officer and Director, Gregory Perry, Chief Financial and Administrative Officer, and Benjamin Harshbarger, General Counsel and Secretary, and each of them, any of whom may act without joinder of the other, his or her true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments, including pre-effective and post-effective amendments, to this Registration Statement on Form S-8 under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 31st day of July, 2017.
Signature |
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/s/ Mary Szela |
| Chief Executive Officer and Director |
Mary Szela |
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/s/ Gregory Perry |
| Chief Financial and Administrative Officer |
Gregory Perry |
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/s/ Barbara Chan |
| President and Chief Accounting Officer, Aegerion |
Barbara Chan |
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/s/ Jason Aryeh |
| Director |
Jason Aryeh |
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Signature |
| Title |
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/s/ Mark Corrigan |
| Director |
Mark Corrigan |
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/s/ Geoffrey Cox |
| Director |
Geoffrey Cox |
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/s/ Kevin Kotler |
| Director |
Kevin Kotler |
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/s/ John Orloff |
| Director |
John Orloff |
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/s/ Jorge Plutzky |
| Director |
Jorge Plutzky |
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/s/ Stephen Sabba |
| Director |
Stephen Sabba |
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/s/ Donald Stern |
| Director |
Donald Stern |
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/s/ John C. Thomas, Jr. |
| Director |
John C. Thomas, Jr. |
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EXHIBIT INDEX
Exhibit |
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| Location |
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3.1 |
| Articles of the Registrant, dated May 25, 2005. |
| Exhibit 3.2 to the Company’s Current Report on Form 8-K, filed with the SEC on June 1, 2005. |
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4.1 |
| Specimen Common Share Certificate of the Registrant. |
| Exhibit 4.1 to the Registrant’s Current Report on Form 8-K, filed with the Commission on December 16, 2016. |
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4.2 |
| Indenture, dated August 15, 2014, by and between Aegerion Pharmaceuticals, Inc. and The Bank of New York Mellon Trust Company, N.A., as Trustee, relating to the 2.00% Convertible Senior Notes Due 2019. |
| Exhibit 4.1 to Aegerion Pharmaceuticals, Inc.’s Current Report on Form 8-K, filed with the Commission on August 15, 2014. |
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4.3 |
| Amended and Restated Supplemental Indenture, dated May 8, 2017, by and among Aegerion Pharmaceuticals, Inc., the Registrant, and The Bank of New York Mellon Trust Company, N.A., as trustee, relating to the 2.00% Convertible Senior Notes Due 2019. |
| Exhibit 4.1 to the Registrant’s Quarterly Report on Form 10-Q, filed with the Commission on May 9, 2016. |
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5.1 |
| Opinion of Norton Rose Fulbright LLP. |
| Filed herewith. |
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23.1 |
| Consent of Deloitte LLP, independent registered public accounting firm. |
| Filed herewith. |
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23.2 |
| Consent of Norton Rose Fulbright LLP. |
| Included in Exhibit 5.1. |
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24 |
| Power of Attorney. |
| Contained on signature page. |
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99.1 |
| Novelion Therapeutics Inc. 2017 Employee Stock Purchase Plan. |
| Filed herewith. |