As filed with the Securities and Exchange Commission on December 8, 2014
Registration No. 333-______
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
Auris Medical Holding AG
(Exact Name of Registrant as Specified in Its Charter)
| Switzerland | | Not Applicable |
(State or Other Jurisdiction of Incorporation or Organization) | | (I.R.S. Employer Identification Number) |
| | Bahnhofstrasse 21 6300 Zug Switzerland | |
| (Address, Including Zip Code of Principal Executive Offices) |
| Auris Medical Holding AG Equity Incentive Plan |
| (Full title of Plans) |
National Corporate Research, Ltd. 10 East 40th Street New York, New York 10016 (212) 947-7200 |
| (Name, address and telephone number, including area code, of agent for service) |
| | Copies to: | |
| | Richard D. Truesdell, Jr., Sophia Hudson Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 (212) 450-4000 | |
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐ | Accelerated filer ☐ |
Non-accelerated filer ☒ (Do not check if a smaller reporting company) | Smaller reporting company ☐ |
| CALCULATION OF REGISTRATION FEE |
| Title Of Securities To Be Registered | Amount To Be Registered(1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price | Amount Of Registration Fee |
| Common Shares, nominal value CHF 0.40 per share, reserved for issuance pursuant to the EIP | 1,145,250 | $ 4.54(2) | $5,199,435.00(2) | $ 604.17 |
| (1) | This Registration Statement on Form S-8 (this “Registration Statement”) covers (i) common shares, nominal value CHF 0.40 per share (“Common Shares”), of Auris Medical Holding AG (the “Registrant”), issuable pursuant to the Auris Medical Holding AG Equity Incentive Plan (the “EIP”); and (ii) pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), any additional Common Shares that become issuable under the EIP by reason of any share dividend, share split or other similar transaction. |
| (2) | Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of computing the registration fee for Common Shares to be issued pursuant to the EIP, based on the average of the high and low prices reported for a Common Share on the NASDAQ Global Select Market on December 3, 2014. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Item 1 and Item 2 of Part I of Form S-8 will be delivered to participants as specified by Rule 428(b)(1) under the Securities Act. In accordance with the rules and regulations of the U.S. Securities and Exchange Commission (the “Commission”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are incorporated herein by reference:
(a) The Registrant’s latest prospectus on Form F-1 filed with the Commission on August 5, 2014 (which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed) (the “F-1 Registration Statement”), as subsequently amended, and the Company’s prospectus filed pursuant to Securities Act Rule 424(b) (Registration File No. 333-197105).
(b) The description of the Registrant’s Common Shares which is contained in the Registrant’s Exchange Act Registration Statement on Form 8-A (Registration File No. 001-36582), dated July 29, 2014, including any amendments or supplements thereto.
In addition, all documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment to this Registration Statement 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 the filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for 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 such 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 Swiss law, a corporation may in advance enter into an agreement with its directors or officers to indemnify such directors or officers against losses and expenses (except for such losses and expenses arising from willful misconduct or negligence), including attorney’s fees, judgments, fines and settlement amounts actually and reasonably incurred in a civil or criminal action, suit or proceeding by reason of having been the representative of, or serving at the request of, the corporation.
Within the limits of Swiss law, Article 17 of the Registrant’s articles of association provides for indemnification of the existing and former members of the Registrant’s board of directors, executive management and their heirs, executors and administrators, against liabilities arising in connection with the performance of their duties in such
capacity, and permits the Registrant to advance the expenses of defending any act, suit or proceeding to the Registrant’s directors and executive management.
In addition, under general principles of Swiss employment law, an employer may be required to indemnify an employee against losses and expenses incurred by such employee in the proper execution of their duties under the employment agreement with the employer
The Registrant enters into indemnification agreements with each of the members of its board of directors and executive officers in the form filed as Exhibit 10.9 to the F-1 Registration Statement upon the closing of the offering being made pursuant thereto.
In the underwriting agreement that the Registrant entered into in connection with the sale of the Common Shares being registered pursuant to the F-1 Registration Statement, a form of which is filed as Exhibit 1.1 to the F-1 Registration Statement, the underwriters will agree to indemnify, under certain conditions, the Registrant, the Registrant’s directors and officers and persons who control the Registrant within the meaning of the Securities Act against certain liabilities.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant, the Registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number | | |
| | | |
| 4.1 | | Form of Articles of Association of Auris Medical Holding AG (filed herewith) |
| | | |
| 4.2 | | Form of Registration Rights Agreement (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form F-1, filed with the Commission on August 5, 2014 (Registration File No. 333-197105)) |
| | | |
| 5 | | Opinion of Froriep, Swiss counsel to the Registrant (filed herewith) |
| | | |
| 23.1 | | Consent of KPMG AG (filed herewith) |
| | | |
| 23.2 | | Consent of Froriep, Swiss counsel to the Registrant (included in Exhibit 5) |
| | | |
| 24 | | Power of Attorney (included in the signature pages hereof) |
| | | |
| 99.1 | | Auris Medical Holding AG Equity Incentive Plan (filed herewith) |
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 this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in 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;
(iii) To include any material information with respect to the EIP not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or 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 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, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Zug, Switzerland, on this 8th day of December, 2014.
| Auris Medical Holding AG | |
| | |
| | | | |
| By: | /s/ Thomas Meyer | |
| | Name: | Thomas Meyer | |
| | Title: | Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Thomas Meyer and Sven Zimmermann, and each of them, individually, as 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, in connection with this Registration Statement, including to sign in the name and on behalf of the undersigned, this Registration Statement and any and all amendments thereto, including post-effective amendments and registrations filed pursuant to Rule 462 under the U.S. Securities Act of 1933, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto each such 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 might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or either of them or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on this 8th day of December, 2014 in the capacities indicated.
| Signature | | Title |
| | | |
| /s/ Thomas Meyer | | Chief Executive Officer and Board Director (Principal Executive Officer) |
| Thomas Meyer | | |
| | | |
| /s/ Sven Zimmermann | | Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) |
| Sven Zimmermann | | |
| | | |
| /s/ Wolfgang Arnold | | Director |
| Wolfgang Arnold | | |
| | | |
| /s/ Alain Munoz | | Director |
| Alain Munoz | | |
| | | |
| | | Director |
| James I. Healy | | |
| | | |
| /s/ Oliver Kubli | | Director |
| Oliver Kubli | | |
| | | |
| /s/ Antoine Papiernik | | Director |
| Antoine Papiernik | | |
| | | |
| /s/ Colleen A. DeVries | | Authorized Representative in the United States |
Colleen A. DeVries SVP of National Corporate Research, Ltd. | | |
EXHIBIT INDEX
Exhibit Number | | |
| | | |
| 4.1 | | Form of Articles of Association of Auris Medical Holding AG (filed herewith) |
| | | |
| 4.2 | | Form of Registration Rights Agreement (incorporated herein by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form F-1, filed with the Commission on August 5, 2014 (Registration File No. 333-197105)) |
| | | |
| 5 | | Opinion of Froriep, Swiss counsel to the Registrant (filed herewith) |
| | | |
| 23.1 | | Consent of KPMG AG (filed herewith) |
| | | |
| 23.2 | | Consent of Froriep, Swiss counsel to the Registrant (included in Exhibit 5) |
| | | |
| 24 | | Power of Attorney (included in the signature pages hereof) |
| | | |
| 99.1 | | Auris Medical Holding AG Equity Incentive Plan (filed herewith) |
