Registration No.
333-
As filed with the Securities and
Exchange Commission on May 20, 2020
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Profound Medical
Corp.
(Exact name of registrant as
specified in its charter)
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Ontario,
Canada |
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Not
Applicable |
(State or other jurisdiction of
incorporation or organization) |
2400 Skymark
Avenue,
Unit 6, Mississauga,
Ontario L4W 5K5
(647) 476-1350 |
(I.R.S. Employer Identification
No.) |
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(Address of Principal
Executive Offices) (Zip Code) |
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Profound Medical Corp.
Long Term Incentive Plan
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(Full title of the
plan) |
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Corporation Services Company
1180 Avenue of the Americas,
Suite 210, New York, NY 10036
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(Name and address of
agent for service) |
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+1 (212)
299-5600 |
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(Telephone number,
including area code, of agent for service) |
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Copies to:
Cheryl V. Reicin, Esq.
Andrew J. Beck, Esq.
Christopher R. Bornhorst, Esq.
Torys LLP
1114 Avenue of the Americas, 23rd Floor
New York, New York 10036, USA
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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 12b-2 of the
Exchange Act. |
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Large Accelerated Filer
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Accelerated Filer
¨ |
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Non-Accelerated Filer
x |
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Smaller reporting
company x |
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Emerging growth
company x |
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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. ¨
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CALCULATION OF REGISTRATION FEE
Title of securities
to be registered |
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Amount to be
registered |
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Proposed
maximum
offering price
per share(3) |
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Proposed
maximum
aggregate
offering price(3) |
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Amount of
registration fee(3) |
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| Common Shares, no par
value(1)(2) |
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1,108,803 |
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$ |
12.02 |
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$ |
13,327,812.06 |
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$ |
1,729.95 |
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(1) This Registration Statement on Form S-8 (this
“Registration Statement”) covers common shares, no par value
per share (“Common Shares”), of Profound Medical Corp. (the
“Registrant”) reserved for future issuance upon vesting from
time to time of restricted share units (“RSUs”) and deferred
share units (“DSUs”) granted pursuant to the Profound
Medical Corp. Long Term Incentive Plan (the “Plan”). We
estimate that an aggregate of 1,108,803 Common Shares, representing
6.1% of the Registrant’s issued and outstanding Common Shares as of
May 15, 2020, will be available for issuance pursuant to grants of
RSUs and DSUs under the Plan.
(2) Pursuant to Rule 416(a) under the Securities
Act of 1933, as amended (the “Securities Act”), includes any
additional Common Shares that become issuable under the Plan by
reason of any share dividend, share split, recapitalization or
other similar transaction.
(3) 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 Plan, based on the average of the high and low
prices reported for a Common Share on The Nasdaq Stock Market LLC
on May 14, 2020.
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 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
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ITEM
3. |
INCORPORATION OF
DOCUMENTS BY REFERENCE |
The following documents filed with or furnished to the Securities
and Exchange Commission (the “Commission”) by Profound
Medical Corp., a corporation organized under the laws of Ontario,
Canada (the “Corporation” or the “Registrant”), are
incorporated herein by reference and made a part hereof:
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(b) |
All other reports filed pursuant
to Section 13(a) or 15(d) of the Exchange Act since December 31,
2019; and |
All documents or reports subsequently filed by the Corporation
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the
filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all
securities offered hereby then remaining unsold, shall be deemed to
be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents or
reports; provided that reports on Form 6-K shall only be
deemed so incorporated by reference to the extent expressly stated
therein. Any statement in a document or report 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 or report which also is or is
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.
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ITEM 4. |
DESCRIPTION OF
SECURITIES |
Not applicable.
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ITEM 5. |
INTERESTS OF NAMED EXPERTS AND
COUNSEL |
Not applicable.
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ITEM 6. |
INDEMNIFICATION OF DIRECTORS AND
OFFICERS |
Section 136 of the Business Corporations Act (Ontario) as
amended, provides, in part, as follows:
Indemnification
(1) A
corporation may indemnify a director or officer of the corporation,
a former director or officer of the corporation or another
individual who acts or acted at the corporation'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 corporation or other entity.
Advance of costs
(2) A
corporation may advance money to a director, officer or other
individual for the costs, charges and expenses of a proceeding
referred to in subsection (1), but the individual shall repay the
money if the individual does not fulfil the conditions set out in
subsection (3).
Limitation
(3) A
corporation shall not indemnify an individual under subsection (1)
unless the individual acted honestly and in good faith with a view
to the best interests of the corporation or, as the case may be, to
the best interests of the other entity for which the individual
acted as a director or officer or in a similar capacity at the
corporation's request.
Same
(4) In
addition to the conditions set out in subsection (3), if the matter
is a criminal or administrative action or proceeding that is
enforced by a monetary penalty, the corporation shall not indemnify
an individual under subsection (1) unless the individual had
reasonable grounds for believing that the individual's conduct was
lawful.
Derivative Actions
(4.1) A corporation may,
with the approval of a court, indemnify an individual referred to
in subsection (1), or advance moneys under subsection (2), in
respect of an action by or on behalf of the corporation or other
entity to obtain a judgment in its favor, to which the individual
is made a party because of the individual's association with the
corporation or other entity as described in subsection (1), against
all costs, charges and expenses reasonably incurred by the
individual in connection with such action, if the individual
fulfils the conditions set out in subsection (3).
Right to indemnity
(4.2) Despite subsection
(1), an individual referred to in that subsection is entitled to
indemnity from the corporation in respect of all costs, charges and
expenses reasonably incurred by the individual in connection with
the defense of any civil, criminal, administrative, investigative
or other proceeding to which the individual is subject because of
the individual's association with the corporation or other entity
as described in subsection (1), if the individual seeking an
indemnity,
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(a) |
was
not judged by a court or other competent authority to
have committed any fault or omitted to do anything that the
individual ought to have done; and |
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(b) |
fulfils
the conditions set out in subsections (3) and
(4). |
Nothing in the articles of association, by-laws or resolutions of
the Registrant limits the right of any person entitled to claim
indemnity apart from the indemnity provided pursuant to Section 136
of the Business Corporations Act (Ontario).
The Registrant maintains a policy of directors’ and officers’
liability insurance which insures, subject to certain exclusions,
directors and officers for losses as a result of claims against the
directors and officers of the Registrant in their capacity as
directors and officers.
Insofar as indemnification for liabilities arising under the U.S.
Securities Act of 1933 may be permitted to directors, officers or
persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been advised that in the opinion of
the Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is therefore
unenforceable.
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ITEM 7. |
EXEMPTION FROM REGISTRATION
CLAIMED |
Not applicable.
See Exhibit Index immediately preceding the signature page.
(a) The
undersigned Registrant hereby undertakes:
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(1) |
To file, during
any period in which offers or sales are being made, a
post-effective amendment to this registration
statement: |
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(i) |
to include any prospectus
required by Section 10(a)(3) of the Securities Act; |
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(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 the Registration
Statement; and |
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(iii) |
to include any material
information with respect to the plan of distribution not previously
disclosed in the Registration Statement or any material change to
such information in the Registration Statement; |
provided, however, that 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 the registration statement;
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(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. |
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(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 Section
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 the
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.
EXHIBIT INDEX
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
Mississauga, Province of Ontario, Canada, on the 20th day of May, 2020.
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PROFOUND MEDICAL
CORP. |
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By: |
/s/ Aaron Davidson |
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Name: Aaron Davidson |
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Title: Chief Financial
Officer |
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POWER OF
ATTORNEY
We, the undersigned directors and/or officers of the Registrant,
hereby severally constitute and appoint Arun Menawat, Aaron
Davidson and Rashed Dewan, and each of them singly, our true and
lawful attorneys, with full power to any of them, and to each of
them singly, to sign for us and in our names in the capacities
indicated below the registration statement on Form S-8 filed
herewith, and any and all amendments to said registration
statement, and to file or cause to be filed the same, with all
exhibits thereto and other documents in connection therewith, with
the Commission, granting unto said attorneys, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as each of them might or could
do in person, and hereby ratifying and confirming all that said
attorneys and each of them, or their substitute or substitutes,
shall do or cause to be done by virtue of this Power of
Attorney.
Pursuant to the requirements of the Securities Act, this
Registration Statement has been signed by the following persons in
the capacities indicated as of the 20th day of May, 2020:
| Signatures |
Title |
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| /s/ Arun Menawat |
Chairman of the Board of Directors and Chief
Executive Officer (Principal Executive Officer) |
| Arun Menawat |
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| /s/ Aaron Davidson |
Chief
Financial Officer and Senior Vice President of Corporate
Development (Principal Financial Officer) |
| Aaron Davidson |
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| /s/ Rashed
Dewan |
Vice President of Finance
(Principal Accounting Officer) |
| Rashed
Dewan |
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| /s/ Brian Ellacott |
Director |
| Brian Ellacott |
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| /s/ Jean-François Pariseau |
Director |
| Jean-François
Pariseau |
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| /s/ Kenneth Galbraith |
Director |
| Kenneth Galbraith |
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| /s/ Arthur Rosenthal |
Director |
| Arthur Rosenthal |
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| /s/ Linda Maxwell |
Director |
| Linda Maxwell |
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| /s/ Steve Forte |
Director |
| Steve Forte |
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SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the requirements of the Securities Act of 1933, as
amended, the undersigned, the Registrant’s duly authorized
representative has signed this Registration Statement on this
20th day of May, 2020:
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PROFOUND MEDICAL
(U.S.) INC. |
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By: |
/s/ Arun Menawat |
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Name: Arun
Menawat |
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Title: CEO |
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