Filed with the Securities and Exchange Commission on May 13, 2019
Registration No. 333-231114
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Auris Medical Holding Ltd.
(Exact Name of Registrant as Specified in Its Charter)
Not Applicable
(Translation of Registrant’s name into English)
| Bermuda | 2834 | NOT APPLICABLE | ||
| (State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Tel: (441) 295-5950
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant’s Principal Executive Offices)
Agent for Service of Process Info
Cogency Global, Inc.
10 East 40th Street, 10th Floor
New York, NY 10016
(212) 947-7200
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent For Service)
Copies to:
|
Michael J. Lerner, Esq. Steven M. Skolnick, Esq. Lowenstein Sandler LLP 1251 Avenue of the Americas New York, NY 10020 Tel: (212) 262-6700 |
Oded Har-Even, Esq. Robert V. Condon III, Esq. Zysman, Aharoni, Gayer and Sullivan & Worcester LLP 1633 Broadway New York, NY 10019 Tel: (212) 660-5000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.
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. ☒ 333-231114
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company ☒
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. ☐
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form F-1 of Auris Medical Holding Ltd. (the “Company”), as originally declared effective by the Securities and Exchange Commission (the “SEC”) on May 10, 2019, is being filed for the sole purpose of filing Exhibits 5.1 and 5.2 as part of the Registration Statement. This Post-Effective Amendment No. 1 does not modify any provision of Part I or Part II of the Registration Statement other than supplementing Item 8 of Part II as set forth below. This Registration Statement shall become effective upon filing with the Commission in accordance with Rule 462(d) under the Securities Act of 1933, as amended.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 8. Exhibits
| (a) | The following documents are filed as part of this registration statement: |
II-1
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-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Hamilton, Bermuda on May 13, 2019.
| Auris Medical Holding Ltd. | ||
| By: | /s/ Thomas Meyer | |
| Name: | Thomas Meyer | |
| 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 on May 13, 2019 in the capacities indicated:
| By: | /s/ Thomas Meyer | |
| Name: | Thomas Meyer | |
| Title: | Chief Executive Officer and Director | |
| (principal executive officer) | ||
| By: | * | |
| Name: | Hernan Levett | |
| Title: | Chief Financial Officer
principal accounting officer) | |
| By: | * | |
| Name: | Armando Anido | |
| Title: | Director | |
| By: | * | |
| Name: | Mats Blom | |
| Title: | Director | |
| By: | * | |
| Name: | Alain Munoz | |
| Title: | Director | |
| By: | * | |
| Name: | Calvin Roberts | |
| Title: | Director | |
| By: | * | |
| Name: | Richard Arthur | |
| Title: | Assistant Secretary on behalf of Cogency Global Inc., Authorized Representative in the United States | |
| *By: | /s/ Thomas Meyer | ||
| Name: | Thomas Meyer | ||
| Title: | Attorney-in-Fact | ||
II-2
Exhibit 5.1
13 May 2019
Matter No.:361824
Doc Ref: 15511248
+1 441 278 7904
guy.cooper@conyersdill.com
Auris Medical Holding Ltd
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Dear Sirs,
Re: Auris Medical Holding Ltd. (the “Company”)
We have acted as special Bermuda legal counsel to the Company in connection with a post-effective amendment No. 1 to its registration statement on form F-1 (Registration No. 333-231114) filed with the U.S. Securities and Exchange Commission (the “Commission”) on 13 May 2019 and the related registration statement on form F-1 filed under Rule 462(b) under the Securities Act of 1933, as amended (collectively, the “Registration Statement”, which term does not include any other document or agreement whether or not specifically referred to therein or attached as an exhibit or schedule thereto) relating to the registration under the U.S. Securities Act of 1933, as amended, (the “Securities Act”) of (i) up to 637,692 common shares par value CHF 0.40 each (the “Common Shares”), (ii) warrants entitling the holder to purchase up to 2,358,972 common shares of CHF 0.40 par value each (“Warrants”), and (iii) pre-funded warrants to purchase up to 1,721,280 common shares of CHF 0.40 par value each (the “Pre-Funded Warrants”; the common shares of CHF 0.40 par value each issuable upon exercise of the Warrants and/or the Pre-Funded Warrants are referred to as the “Warrant Shares”), with each of the Common Shares, the Warrants, and the Pre-Funded Warrants being offered in units consisting of (a) Common Shares and Warrants; and (b) Pre-Funded Warrants and Warrants. The Common Shares, the Warrants and the Pre-Funded Warrants will be sold pursuant to an Underwriting Agreement (the “Agreement”) between the Company and A.G.P./Alliance Global Partners.
For the purposes of giving this opinion, we have examined a copy of the Registration Statement and the Agreement. We have also reviewed the memorandum of continuance and the bye-laws of the Company, each certified by the Secretary of the Company on 9 May 2019 (the “Constitutional Documents”), minutes of a meeting of the Company’s board of directors held on 25 April 2019 and unanimous written resolutions of the Company dated 5 May 2019 (collectively, the “Resolutions”), the form of the individual warrant agreement constituting the Warrants (the “Warrant Document”), the form of the individual pre-funded warrant agreement constituting the Pre-Funded Warrant (the “Pre-Funded Warrant Document”), each of which is exhibited to the Registration Statement, and such other documents and made such enquiries as to questions of law as we have deemed necessary in order to render the opinion set forth below.
1
We have assumed (a) the genuineness and authenticity of all signatures and the conformity to the originals of all copies (whether or not certified) examined by us and the authenticity and completeness of the originals from which such copies were taken, (b) that where a document has been examined by us in draft form, it will be or has been executed and/or filed in the form of that draft, and where a number of drafts of a document have been examined by us all changes thereto have been marked or otherwise drawn to our attention, (c) the accuracy and completeness of all factual representations made in the Registration Statement and other documents reviewed by us, (d) that the Resolutions were passed at one or more duly convened, constituted and quorate meetings, or by unanimous written resolutions, remain in full force and effect and have not been, and will not be, rescinded or amended, (e) that there is no provision of the law of any jurisdiction, other than Bermuda, which would have any implication in relation to the opinions expressed herein, (f) that the Constitutional Documents will not be amended in any manner that would affect the opinions expressed herein, (g) that each individual warrant agreement constituting the Warrants is in the same form as the Warrant Document and each individual pre-funded warrant agreement constituting the Pre-Funded Warrants is in the same form as the Pre-Funded Warrant Document; (h) that the Agreement, each individual warrant agreement constituting the Warrants and each individual pre-funded warrant agreement constituting the Pre-Funded Warrants will be duly approved, executed and delivered by or on behalf of the Company and all other parties thereto; (i) that the Agreement, each individual warrant agreement constituting the Warrants and each individual pre-funded warrant agreement constituting the Pre-Funded Warrants will be valid and binding in accordance with its terms pursuant to its governing law, (j) that upon issue of any Warrant Shares the Company will receive consideration for the full issue price thereof which shall be equal to at least the par value thereof, (k) that the Company will have sufficient authorised capital to effect the issue of any of the Warrant Shares at the time of issuance upon exercise of either the Warrants or the Pre-Funded Warrants; and (l) that the Pricing Committee of the Board of Directors of the Company shall approve the final number of, manner of and price at which the Common Shares, the Warrants, the Pre-Funded Warrants and the Warrant Shares are sold and issued.
“Non-assessability” is not a legal concept under Bermuda law, but when we describe the Common Shares and/or Warrant Shares herein as being “non-assessable” we mean, subject to any contrary provision in any agreement between the Company and any one of its members holding any of the Common Shares and/or Warrant Shares (but only with respect to such member), that no further sums are payable with respect to the issue of such shares and no member shall be bound by an alteration in the Constitutional Documents after the date upon which it became a member if and so far as the alteration requires such member to take or subscribe for additional Common Shares or Warrant Shares or in any way increases its liability to contribute to the share capital of, or otherwise pay money to, the Company.
2
We have made no investigation of and express no opinion in relation to the laws of any jurisdiction other than Bermuda. This opinion is to be governed by and construed in accordance with the laws of Bermuda and is limited to and is given on the basis of the current law and practice in Bermuda. This opinion is issued solely for the purposes of the filing of the Registration Statement and the offering of the Common Shares, Warrants and Pre-Funded Warrants by the Company and is not to be relied upon in respect of any other matter.
On the basis of and subject to the foregoing, we are of the opinion that:
| 1. | The Company is duly incorporated and existing under the laws of Bermuda in good standing (meaning solely that it has not failed to make any filing with any Bermuda government authority or to pay any Bermuda government fees or tax which would make it liable to be struck off the Register of Companies and thereby cease to exist under the laws of Bermuda). | |
| 2. | When issued and paid for as contemplated by the Registration Statement and the Agreement, the Common Shares will be validly issued, fully paid and non-assessable. | |
| 3. | When issued and paid for in accordance with (i) an individual warrant agreement constituting the Warrants, or (ii) an individual pre-funded warrant agreement constituting the Pre-Funded Warrants, the Warrant Shares will be validly issued, fully paid and non-assessable. | |
| 4. | The Company has taken all corporate action required to authorise its execution, delivery and performance of the Agreement, the individual warrant agreements constituting the Warrants and the individual pre-funded warrant agreements constituting the Pre-Funded Warrants. |
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to our firm under the captions “Legal Matters” in the prospectus forming a part of the Registration Statement. In giving this consent, we do not hereby admit that we are experts within the meaning of Section 11 of the Securities Act or 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 Commission promulgated thereunder.
Yours faithfully,
/s/ Conyers Dill & Pearman Limited
3
Exhibit 5.2
May 13, 2019
Auris Medical Holding Ltd
Clarendon House
2 Church Street
Hamilton HM 11
Bermuda
Ladies and Gentlemen:
We have acted as special U.S. counsel to Auris Medical Holding Ltd., an exempted company incorporated in Bermuda (the “Company”) in connection with the sale and issuance of up to 637,692 of the Company’s common shares, par value CHF 0.40 per share (the “Common Shares” and such shares, the “Shares”), Warrants (the “Warrants”) to purchase up to an aggregate of 2,358,972 Common Shares (the “Common Warrant Shares”) and Pre-Funded Warrants (the “Pre-Funded Warrants”) to purchase up to 1,721,280 Common Shares (the “Pre-Funded Warrant Shares” and, together with the Common Warrant Shares, the “Warrant Shares”) pursuant to the Registration Statement on Form F-1 (File No. 333-231114) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations promulgated thereunder, and the related Registration Statement on Form F-1 filed under Rule 462(b) under the Securities Act (collectively, the “Registration Statement”) together with the Prospectus contained therein (the “Prospectus”). The Shares, Warrants and Pre-Funded Warrants are to be sold pursuant to an Underwriting Agreement (the “Agreement”) between the Company and A.G.P./Alliance Global Partners, as the representative (the “Representative”) of the several underwriters, if any, named in Schedule I thereto (each an “Underwriter” and collectively, the “Underwriters”).
As counsel to the Company in connection with the proposed potential issuance and sale of the above-referenced Shares, Warrants, Pre-Funded Warrants and Warrant Shares, we have reviewed the Registration Statement, Prospectus and the respective exhibits thereto. We have also reviewed such corporate documents and records of the Company, such certificates of public officials and officers of the Company and such other matters as we have deemed necessary or appropriate for purposes of this opinion. In our examination, we have assumed: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the instruments, documents, certificates and records we have reviewed; (iv) that, as set forth in a separate opinion delivered to the Company on the date hereof by Conyers Dill & Pearman Limited, special Bermuda counsel to the Company, the Warrants and the Pre-Funded Warrants have been duly authorized; and (v) the legal capacity for all purposes relevant hereto of all natural persons and, with respect to all parties to agreements or instruments relevant hereto other than the Company, that such parties had the requisite power and authority (corporate or otherwise) to execute, deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action (corporate or otherwise), executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to any facts material to the opinions expressed herein that were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of the Company.
Based on the foregoing, and subject to the assumptions, limitations and qualifications set forth herein, we are of the opinion that (i) when the Warrants are duly executed and delivered by the Company and paid for by the Underwriters pursuant to the Agreement, such Warrants will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency or other similar laws affecting creditors’ rights and to general equitable principles and (ii) when the Pre-Funded Warrants are duly executed and delivered by the Company and paid for by the Underwriters pursuant to the Agreement, such Pre-Funded Warrants will constitute the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency or other similar laws affecting creditors’ rights and to general equitable principles.
The opinion set forth above are subject to the following exceptions, limitations and qualifications: (i) the effect of bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting the rights and remedies of creditors; (ii) the effect of general principles of equity, including without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether enforcement is considered in a proceeding in equity or at law, and the discretion of the court before which any proceeding therefor may be brought; and (iii) the unenforceability under certain circumstances under law or court decisions of provisions providing for the indemnification of, or contribution to, a party with respect to liability where such indemnification or contribution is contrary to public policy. We express no opinion concerning the enforceability of any waiver of rights or defenses with respect to stay, extension or usury laws.
Our opinion is limited to the laws of New York. We express no opinion as to the effect of the law of any other jurisdiction. Our opinion is rendered as of the date hereof, and we assume no obligation to advise you of changes in law or fact (or the effect thereof on the opinions expressed herein) that hereafter may come to our attention. We advise you that matters of Bermuda law are covered in the opinion of Dill & Pearman Limited, special Bermuda counsel for the Company, in Exhibit 5.1 to the Registration Statement.
We hereby consent to the inclusion of this opinion as Exhibit 5.2 to the Registration Statement and to the references to our firm therein and in the Prospectus under the caption “Legal Matters.” In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, | |
| /s/ Lowenstein Sandler LLP | |
| Lowenstein Sandler LLP |
-2-