AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 23, 2005
REGISTRATION NO. 333-122965
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1 TO
FORM F-10
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
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NEUROCHEM INC.
(Exact name of Registrant as specified in its charter)
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Canada 2834 Not Applicable
(Province or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
275 Armand-Frappier Boulevard
Laval, Quebec H7V 4A7, Canada
(450) 680-4580
(Address and telephone number of Registrant's principal executive offices)
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CT Corporation System
111 Eighth Avenue, 13th Floor
New York, New York 10011
(212) 894-8400
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States)
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Copies to:
Richard Cherney, Esq. David Skinner Donald J. Murray, Esq.
Davies Ward Phillips & Vineberg LLP Neurochem Inc. Dewey Ballantine LLP
1501, avenue McGill College 275 Armand-Frappier Boulevard 1301 Avenue of the Americas
Montreal, Quebec H3A 3N9, Canada Laval, Quebec H7V 4A7, Canada New York, NY 10019
(514) 841-6400 (450) 680-4580 (212) 259-8000
Renaud Coulombe, Esq. Guy P. Lander, Esq.
Ogilvy Renault Davies Ward Phillips & Vineberg LLP
1981 McGill College Avenue, Suite 1100 625 Madison Avenue
Montreal, Quebec H3A 3C1, Canada New York, NY 10022
(514) 847-4604 (212) 588-5511
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF THE SECURITIES
TO THE PUBLIC:
As soon as practicable after this Registration Statement becomes effective.
Province of Quebec, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box):
A. [ ] Upon filing with the Commission, pursuant to Rule 467(a) (if in
connection with an offering being made contemporaneously in the
United States and Canada)
B. [X] At some future date (check the appropriate box below)
1. [ ] pursuant to Rule 467(b) on ( ) at ( ) (designate a time not
sooner than 7 calendar days after filing).
2. [ ] pursuant to Rule 467(b) on ( ) at ( ) (designate at time 7
calendar days or sooner after filing) because the securities
regulatory authority in the review jurisdiction has issued a
receipt or notification of clearance on ( ).
3. [ ] pursuant to Rule 467(b) as soon as practicable after notification
of the Commission by the Registrant or the Canadian securities
regulatory authority of the review jurisdiction that a receipt or
notification of clearance has been issued with respect hereto.
4. [X] after the filing of the next amendment to this Form (if
preliminary material is being filed).
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to the home jurisdiction's shelf prospectus
offering procedures, check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Proposed Maximum Proposed Maximum Amount of
Securities to be Amount to be Offering Price Aggregate Registration
Registered Registered(1) Per Unit(2) Offering Price Fee
- ------------------------------------------------------------------------------------------------------------------------
Common Shares 4,600,000 $18.86 86,756,000 $10,211.18
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(1) Includes shares of common stock which may be purchased by the underwriters
to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee.
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The Registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the Registration
Statement shall become effective as provided in Rule 467 under the Securities
Act of 1933 or on such date as the Commission, acting pursuant to Section 8(a)
of the Act, may determine.
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EXPLANATORY NOTE
The purpose of this Amendment No. 1 to the Form F-10 Registration Statement
is to insert with the other signature pages the signature page for the Board of
Directors which had been placed in Exhibit 10 (Power of Attorney). Accordingly,
this Amendment consists only of the facing page, this Explanatory Note and Parts
II and III of the Registration Statement.
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PART II
INFORMATION NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS
Indemnification
Under the Canada Business Corporations Act, the Registrant may
indemnify 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 an individual acting in a similar capacity,
of another entity, against all costs, charges and expenses, including an amount
paid to settle an action or satisfy a judgment, reasonably incurred by the
individual in respect of any civil, criminal, administrative, investigative or
other proceeding in which the individual is involved because of that association
with the Registrant or other entity. The Registrant may not indemnify an
individual unless the individual (i) acted honestly and in good faith with a
view to the best interests of the Registrant or, as the case may be, in the best
interests of the other entity for which the individual acted as director or
officer or in a similar capacity at the Registrant's request, (ii) and, in the
case of a criminal or administrative action or proceeding that is enforced by a
monetary penalty, had reasonable grounds for believing that his or her conduct
was lawful. Such indemnification may be made in connection with an action by or
on behalf of the Registrant or other entity to procure a judgment in its favour
only with court approval. A director or officer is entitled to indemnification
from the Registrant as a matter of right if he or she was not judged by the
Court or other competent authority to have committed any fault or omitted to do
anything that he or she ought to have done and fulfilled the conditions set
forth above.
The Registrant may advance moneys to a director, officer or other
individual for the costs, charges and expenses of a proceeding referred to
above. The individual shall repay the moneys if he or she does not fulfill the
conditions set forth above to qualify for indemnification.
In accordance with provisions of the Canada Business Corporations Act
described above, the by-laws of the Registrant provide that the Registrant
shall, unless its board of directors otherwise determines in any particular
case, indemnify 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 an individual acting in a
similar capacity, of another entity, to the maximum extent not prohibited by the
Canada Business Corporations Act.
The Registrant maintains directors' and officers' liability insurance
that provides coverage for losses as a result of claims against directors and
officers of the Registrant and former directors and officers of the Registrant
in their capacities as directors or officers of the Registrant.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended, may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, the Registrant
has been informed that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933, as amended,
and is therefore unenforceable.
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EXHIBIT INDEX
Exhibit No. Description
- ----------- ----------------------------------------------------
3.** Form of Underwriting Agreement
4.1** The audited consolidated balance sheets of the
Registrant as at December 31, 2004 and 2003 and the
consolidated statements of operations, deficit and
cash flows for the year ended December 31, 2004, the
six-month period ended December 31, 2003, the year
ended June 30, 2003 and for the period from inception
(June 17, 1993) to December 31, 2004, together with
the auditors' report thereon, the notes thereto and
Management's discussion and analysis of financial
condition and results of operations in respect of the
year ended December 31, 2004, December 31, 2003 and
June 30, 2003
4.2** The annual information form of the Registrant dated
May 12, 2004 for the six-month period ended December
31, 2003
4.3** The management proxy circular of the Registrant dated
April 6, 2004
4.4** The material change report of the Registrant dated
January 27, 2005
5. Consent of KPMG LLP
6.* Consent of Davies Ward Phillips & Vineberg LLP
7.* Consent of Davies Ward Phillips & Vineberg LLP (New
York)
8.* Consent of Ogilvy Renault LLP
10.** Power of Attorney
- ----------
*To be filed by amendment.
**Previously filed.
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PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
ITEM 1. 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 registered pursuant to Form F-10 or to transactions
in said securities.
ITEM 2. CONSENT TO SERVICE OF PROCESS
Concurrently with the filing of this Form F-10, the Registrant is
filing with the Commission a written irrevocable consent and power of attorney
on Form F-X.
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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 F-10 and has duly caused this Amendment
No. 1 to the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of Laval, Province of Quebec,
Country of Canada, on this 23rd day of February, 2005.
NEUROCHEM INC.
By: *
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Name: Francesco Bellini, Ph.D.
Title: Chairman of the Board, President and Chief
Executive Officer
Pursuant to the requirements of the Securities Act, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities indicated on this 23rd day of February, 2005.
Name Title
*
- ------------------------------------ Chairman, President, Chief Executive
Francesco Bellini, Ph.D. Officer and Director
(Principal Executive Officer)
*
- ------------------------------------ Vice President, Finance and Chief
Mariano Rodriguez Financial Officer
(Principal Financial and
Accounting Officer)
*
- ------------------------------------ Director
Colin Bier, Ph.D.
*
- ------------------------------------ Director
Jean-Guy Desjardins
*
- ------------------------------------ Director
Peter Kruyt
*
- ------------------------------------ Director
Francois Legault
*
- ------------------------------------ Director
Dr. Frederick H. Lowy
*
- ------------------------------------ Director
John Molloy
*
- ------------------------------------ Director
Ronald M. Nordmann
*
- ------------------------------------ Director
Graeme K. Rutledge
*
- ------------------------------------ Director
Dr. Emil Skamene
By: /s/ DAVID SKINNER
--------------------------------
David Skinner
Attorney-in-fact
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of
1933, the authorized representative has duly caused this Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, solely in
its capacity as the duly authorized representative of Neurochem Inc. in the
United States, in the State of New Jersey, Country of the United States of
America, on the 23rd day of February, 2005.
By: *
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Name: Ronald M. Nordmann
By: /s/ DAVID SKINNER
--------------------------------
David Skinner
Attorney-in-fact
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EXHIBIT INDEX
Exhibit No. Description
- ----------- -----------------------------------------------------
3.** Form of Underwriting Agreement
4.1** The audited consolidated balance sheets of the
Registrant as at December 31, 2004 and 2003 and the
consolidated statements of operations, deficit and
cash flows for the year ended December 31, 2004, the
six-month period ended December 31, 2003, the year
ended June 30, 2003 and for the period from inception
(June 17, 1993) to December 31, 2004, together with
the auditors' report thereon, the notes thereto and
Management's discussion and analysis of financial
condition and results of operations in respect of the
year ended December 31, 2004, December 31, 2003 and
June 30, 2003
4.2** The annual information form of the Registrant dated
May 12, 2004 for the six-month period ended December
31, 2003
4.3** The management proxy circular of the Registrant dated
April 6, 2004
4.4** The material change report of the Registrant dated
January 27, 2005
5. Consent of KPMG LLP
6.* Consent of Davies Ward Phillips & Vineberg LLP
7.* Consent of Davies Ward Phillips & Vineberg LLP (New
York)
8.* Consent of Ogilvy Renault LLP
10.** Power of Attorney
- ----------
*To be filed by amendment.
**Previously filed.
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