As filed with the Securities and Exchange Commission on June 28, 2021.
Registration Statement No. 333-257000
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 2 TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NYXOAH SA
(Exact name of Registrant as specified in its charter)
| Belgium | 3841 | Not applicable |
| (State or other jurisdiction of | (Primary Standard Industrial | (I.R.S. Employer |
| incorporation or organization) | Classification Code Number) | Identification Number) |
Rue Edouard Belin 12
1435 Mont-Saint-Guibert, Belgium
+32 10 22 23 55
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
Corporation Service Company
1090 Vermont Avenue N.W.
Washington D.C. 20005
United States
Telephone: +1 800 927 9800
(Name, address, including zip code, and telephone number, including area code, of agent for service)
| Copies to: | ||
| Jonathan L. Kravetz, Esq. | Philippe Remels | Shayne Kennedy, Esq. |
| John T. Rudy, Esq. | NautaDutilh BV/SRL | Latham & Watkins LLP |
| Mintz, Levin, Cohn, Ferris, Glovksy & | Chaussée de La Hulpe 120 | 650 Town Center Drive |
| Popeo, P.C. | 1000 Brussels, Belgium | 20th Floor |
| One Financial Center | +32 2 566 80 00 | Costa Mesa, CA 92626 |
| Boston, MA 02111 | (714) 540 1235 | |
| (617) 542 6000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act. Emerging growth company x
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, 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. ¨
| † | The term “new or revised financial accounting standards” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012. |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), shall determine.
EXPLANATORY NOTE
The sole purpose of this Amendment No. 2 to the Company’s Registration Statement on Form F-1 is to amend the exhibit index and to file exhibit 8.1. Accordingly, this Amendment No. 2 consists only of the facing page, this explanatory note, Part II, including the signature page and the exhibit index, and the exhibit filed herewith. This Amendment No. 2 does not contain a copy of the prospectus that was included in Amendment No. 1 to the Company’s Registration Statement on Form F-1 and is not intended to amend or delete any part of the prospectus.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 6. Indemnification of Directors and Officers.
Under Belgian law, the directors of a company may be liable for damages to our company in case of improper performance of their duties. Our directors may be liable to our company and to third parties for infringement of our articles of association or Belgian company law. Under certain circumstances, directors may be criminally liable. We maintain liability insurance for the benefit of our directors and members of our executive management team.
We maintain liability insurance for our directors and officers, including insurance against liability under the Securities Act of 1933, as amended, and we intend to enter into agreements with our directors and executive officers to provide contractual indemnification. With certain exceptions and subject to limitations on indemnification under Belgian law, these agreements will provide for indemnification for damages and expenses including, among other things, attorneys’ fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding arising out of his or her actions in that capacity.
These agreements may discourage shareholders from bringing a lawsuit against our directors and executive officers for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and executive officers, even though such an action, if successful, might otherwise benefit us and our shareholders. Furthermore, a shareholder’s investment may be adversely affected to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these insurance agreements.
Certain of our non-employee directors may, through their relationships with their employers or partnerships, be insured and/or indemnified against certain liabilities in their capacity as members of our board of directors.
In the underwriting agreement, the form of which is filed as Exhibit 1.1 to this registration statement, the underwriters will agree to indemnify, under certain conditions, us, the members of our board of directors and persons who control our company within the meaning of the Securities Act against certain liabilities, but only to the extent that such liabilities are caused by information relating to the underwriters furnished to us in writing expressly for use in this registration statement and certain other disclosure documents.
Item 7. Recent Sales of Unregistered Securities.
From January 1, 2018 through the date of the filing of this registration statement, we have issued the securities in the following transactions that were not registered under the Securities Act:
Issuances of Share Capital
On October 5, 2018, we issued and sold to investors in a private placement an aggregate 1,534 Preferred B2 shares for an aggregate consideration of €5.0 million.
On November 7, 2018, we issued and sold to investors in a private placement an aggregate 3,068 Preferred B2 shares for an aggregate consideration of €10.0 million.
On February 21, 2020, we issued and sold to investors in a private placement an aggregate 4,200 common shares for an aggregate consideration of €25.1 million.
On September 7, 2020, we issued 44,500 common shares pursuant to an exercise of subscription rights for an aggregate consideration of €230,065.
On September 21, 2020, we issued and sold in a public offering an aggregate 4,335,000 common shares for an aggregate consideration of €73.7 million.
On September 28, 2020, we issued and sold following the exercise of an over-allotment option in connection with a public offering an aggregate 650,250 common shares for an aggregate consideration of €11.1 million.
On October 28, 2020, we issued 23,500 common shares for an aggregate consideration of €121,495.
| II-1 |
On February 22, 2021, we issued 10,000 common shares pursuant to an exercise of subscription rights for an aggregate consideration of €51,700.
On June 23, 2021, we issued 60,000 common shares pursuant to an exercise of subscription rights for an aggregate consideration of €310,247.90.
Issuances under Our Warrant Plans
On December 12, 2018, we issued 525 warrants to purchase ordinary shares under the 2018 Warrants Plan, of which 319 warrants remain outstanding for an aggregate of 159,500 ordinary shares upon exercise of the outstanding warrants.
On February 21, 2021, we issued 550,000 warrants to purchase ordinary shares under the 2020 Warrants Plan, of which 550,000 warrants remain outstanding for an aggregate of 550,500 ordinary shares upon exercise of the outstanding warrants.
The offers, sales and issuances of the securities described in the preceding paragraphs were exempt from registration either: (a) under Section 4(a)(2) of the Securities Act in that the transactions were between an issuer and sophisticated investors and did not involve any public offering within the meaning of Section 4(a)(2); (b) in reliance on Rule 144A promulgated under the Securities Act in that offers, sales and issuances were made only to “qualified institutional buyers” (as such term is defined in Rule 144A(a)(1); (c) under Rule 701 promulgated under the Securities Act in that the transactions were under compensatory benefit plans and contracts relating to compensation; or (d) under Regulation S promulgated under the Securities Act in that offers, sales and issuances were not made to persons in the United States and no directed selling efforts were made in the United States.
Item 8. Exhibits and Financial Statement Schedules
(a) Exhibits
The exhibits to the registration statement are listed in the Exhibit Index to this registration statement and are incorporated herein by reference.
(b) Financial Statement Schedules
All schedules have been omitted because the information required to be set forth therein is not applicable or has been included in the consolidated financial statements and notes thereto.
Item 9. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant under the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the SEC 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.
The undersigned registrant hereby undertakes that:
| (i) | For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance on Rule 430A and contained in a form of prospectus filed by the registrant under Rule 424(b)(1) or (4) or 497(h) under the Securities Act will be deemed to be part of this registration statement as of the time it was declared effective. |
| (ii) | For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus will be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time will be deemed to be the initial bona fide offering thereof. |
| II-2 |
EXHIBIT INDEX
| * | Previously filed. |
| # | Certain confidential portions of this Exhibit were omitted by means of marking such portions with brackets (“[***]”) because the identified confidential portions (i) are not material and (ii) would be competitively harmful if publicly disclosed. |
| II-3 |
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Mont-Saint-Guibert, Belgium, on June 28, 2021.
| NYXOAH SA | |||
| By: | /s/ Olivier Taelman | ||
| Name: | Olivier Taelman | ||
| Title: | Chief Executive Officer | ||
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date | ||
| /s/ Olivier Taelman | Chief Executive Officer and Executive Director | June 28, 2021 | ||
| Olivier Taelman | (Principal Executive Officer) | |||
| /s/ Fabian Suarez Gonzalez | Chief Financial Officer | June 28, 2021 | ||
| Fabian Suarez Gonzalez, acting via ActuaRisk Consulting SRL | (Principal Financial and Accounting Officer) | |||
| * | Chairman of the Board of Directors | June 28, 2021 | ||
| Robert Taub | ||||
| * | Director | June 28, 2021 | ||
| Janke Dittmer | ||||
| * | Director | June 28, 2021 | ||
| Kevin Rakin | ||||
| * | Director | June 28, 2021 | ||
| Donald Deyo | ||||
| * | Director | June 28, 2021 | ||
| Pierre Gianello | ||||
| * | Director | June 28, 2021 | ||
| Jan Janssen | ||||
| * | Director | June 28, 2021 | ||
| Jürgen Hambrecht | ||||
| /s/ Olivier Taelman | Director | June 28, 2021 | ||
| Name: Olivier Taelman | ||||
| Title: Attorney-in-fact |
| II-4 |
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE OF THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of Nyxoah SA, has signed this registration statement on Form F-1 on June 28, 2021.
| NYXOAH, INC. | |||
| By: | /s/ Olivier Taelman | ||
| Name: | Olivier Taelman | ||
| Title: | Chief Executive Officer, President and Secretary | ||
| II-5 |
Exhibit 8.1
| AVOCATS |  |
| Chaussée de La Hulpe 120 1000 Brussels T +32 2 566 8000 F +32 2 566 8001 |
Brussels, 28 June 2021 75019133 Nyxoah / Stella | |
| Nyxoah SA rue Edouard Belin 12 1435 Mont-Saint-Guibert Belgium | ||
| (the "Addressee") |
Ladies and Gentlemen,
We have acted as Belgian legal counsel to Nyxoah SA, a limited liability company organized and existing under the laws of the Kingdom of Belgium, with its statutory seat at rue Edouard Belin 12, 1435 Mont-Saint-Guibert, and registered under company number 0817.149.675 (the "Company") on certain legal matters of Belgian law in connection with the Company’s registration statement (the “Registration Statement”) on Form F-1, including all amendments or supplements thereto, filed with the United States Securities and Exchange Commission (the “SEC”) under the United States Securities Act of 1933, as amended (the “Securities Act”), in respect of the Company’s proposed initial public offering in the United States of America of ordinary shares of the Company (the "Offer Shares") covered by the Registration Statement to which this opinion is an exhibit (the "Transaction"). The Offer Shares will comprise:
| a. | up to 2,760,000 new ordinary shares with no nominal value per share to be issued by the Company pursuant to a capital increase resolved by the board of directors of the Company on June 25, 2021; and |
| b. | up to 414,000 additional new ordinary shares with no nominal value per share to be issued by the board of directors of the Company at the option of the underwriters in order to cover over-allotments. |
This opinion letter is solely given for the information of the Addressee. It may only be relied upon in connection with the Registration Statement by the Addressee and by the purchasers to which the Offer Shares have been allocated as part of the Transaction. However, purchasers of the Offer Shares should consult their own tax advisors or counsel, particularly with respect to the personal tax consequences of the investment, which may vary for investors in different situations. This opinion letter is strictly limited to the matters stated in it and may not be read as extending by implication to any matters not specifically referred to in it. Nothing in this opinion letter should be taken as expressing an opinion in respect of any representations or warranties, or other information, contained in any document.
Amsterdam Brussels London Luxemburg New York Rotterdam |
| |
| 2 |
The section headings used in this opinion letter are for convenience or reference only and are not to affect its construction or be taken into consideration in its interpretation.
This opinion letter sets out our opinion on certain matters of Belgian tax law as at today’s date and as generally interpreted and applied by the Belgian courts and authorities on the same date. This opinion may be affected by amendments to the tax law or to the regulations thereunder or by subsequent judicial or administrative interpretations thereof, which might be enacted or applied with retroactive effect for the current tax assessment period. The opinion and statements expressed in this opinion letter are limited in all respects to and are to be construed and interpreted in accordance with, Belgian law. Unless otherwise specifically stated herein, we do not express any opinion on tax law, on public international law or on the rules promulgated under or by any treaty organisation, except insofar as such rules are directly applicable in Belgium, nor do we express any opinion on Belgian or European competition law. No undertaking is assumed on our part to revise, update or amend this opinion letter in connection with or to notify or inform you of, any developments and/or changes under Belgian law subsequent to today’s date.
As Belgian lawyers we are not qualified or able to assess the true meaning and purport of the terms of the Registration Statement and the Underwriting Agreement under any applicable law other than Belgian law and the obligations of the parties thereto, and we have made no investigation of such meaning and purport. Our review of the Registration Statement and the Underwriting Agreement, has therefore been limited to the terms of such documents as they appear to us on their face.
In this opinion letter, legal concepts are expressed in English terms. The Belgian legal concepts concerned may not be identical in meaning to the concepts described by the English terms as they exist under the law of other jurisdictions. In the event of a conflict or inconsistency, the relevant expression shall be deemed to refer only to the Belgian legal concepts described by the English terms.
In rendering the opinions expressed herein, we have exclusively reviewed and relied upon the documents set out in Exhibit A to this opinion letter (the "Documents"), together with such other publicly available documents as we have considered it necessary or desirable. We have not investigated or verified any factual matter disclosed to us in the course of our review, nor do we opine on the accuracy of representations and warranties contained in documents reviewed by us.
| | |
| 3 |
The opinions expressed in this opinion letter are to be construed and interpreted in accordance with Belgian law. The competent courts at Brussels, Belgium have exclusive jurisdiction to settle any issues of interpretation or liability arising out of or in connection with this opinion letter and all matters related to the legal relationship between yourself and NautaDutilh BV/SRL, as well as between the purchasers of the Offer Shares and NautaDutilh BV/SRL, including the above submission to jurisdiction, are governed by Belgian law and the general terms and conditions of NautaDutilh BV/SRL1.
ASSUMPTIONS
For the purposes of this opinion letter, we have assumed that:
| a. | each document reviewed by us as original is complete and authentic; each document reviewed by us as draft of a document or as a fax, photo or electronic copy of an original is in conformity with the executed original thereof and such original is complete and authentic; each signature is the genuine signature of the individual purported to have placed that signature; |
| b. | the Documents have been (or will be) duly executed on behalf of any party thereto other than the Company and constitute or will constitute under any applicable law other than Belgian law, the legal, valid and binding obligations of each of the parties thereto, enforceable in accordance with their terms; |
| c. | the place of effective management and the centre of main interests of the Company are located in Belgium; |
| d. | the statements of facts contained in the Documents are accurate and up-to-date as of the date hereof; |
| e. | the Documents examined by us in draft form have been, and for those that have not been executed yet, will be executed substantially in such form on or before the delivery of the Offer Shares to the Underwriters under the Underwriting Agreement (as defined in Exhibit A); |
1 The applicable general terms and conditions of NautaDutilh BV/SRL can be found at all times at www.nautadutilh.com.
| | |
| 4 |
| f. | the respective parties to all Documents and all person having obligations thereunder will act in all respects at all relevant times in compliance with the requirements and provisions of the Documents; |
| g. | no person will conduct activities on behalf of the Company other than as contemplated by the Documents; and |
| h. | the opinion given in this opinion letter will not be affected by any foreign law. |
OPINION
Based upon and subject to the foregoing and subject to any matters, documents or events not disclosed to us, we express the following opinion:
| · | the legal statements set forth in the Registration Statement under the heading "Material United States Federal Income and Belgian Tax Considerations – Material Belgian Tax Consequences", insofar as such statements discuss the material Belgian tax consequences of the ownership of shares by a U.S. holder of shares, represent our opinion with respect to and limited to the matters referred to therein, it being understood that, as a summary, they do not constitute a comprehensive description of the rules and provisions to which they refer. |
*
We consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading "Legal Matters" in the prospectus, which is part of the Registration Statement. In giving this consent, we do not concede that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the SEC thereunder.
Yours faithfully,
/s/NautaDutilh BV/SRL
NautaDutilh BV/SRL
| | |
| 5 |
exhibit A
List of documents
| 1. | a copy of the Form F-1 Registration Statement under the Securities Act of 1933, dated 25 June 2021; and |
| 2. | the form of underwriting agreement proposed to be entered into by the Company, and Piper Sandler & Co., Stifel, Nicolaus & Co., Inc., and Cantor Fitzgerald & Co., as the representatives of the underwriters, filed as an exhibit to the Registration Statement (the "Underwriting Agreement"). |