Securities Registration: Employee Benefit Plan (s-8)
May 18 2018 - 6:05AM
Edgar (US Regulatory)
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As filed with the Securities and Exchange Commission on May 17, 2018
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Registration Nos. 333-
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
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CORREVIO PHARMA CORP.
(Exact name of Registrant as specified
in its charter)
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Canada
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Not Applicable
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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1441 Creekside Drive, 6th Floor
Vancouver, British Columbia, Canada V6J
4S7
(Address of Principal Executive Offices)
CORREVIO
PHARMA CORP. RESTRICTED SHARE UNIT PLAN
(Full title of plan)
Correvio LLC
3 Dickinson Drive
Suite 101
Chadds Ford, PA 19317
(Name and address of agent for service)
610-833-6066
(Telephone number, including area code,
of agent for service)
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Copy to:
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Riccardo Leofanti, Esq.
Skadden, Arps, Slate, Meagher & Flom
LLP
222 Bay Street, Suite 1750, P.O. Box
258
Toronto, Ontario, Canada M5K 1J5
(416) 777-4700
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Joseph A. Garcia, Esq.
Blake, Cassels & Graydon LLP
595 Burrard Street, Suite 2600
Vancouver, British Columbia, Canada V7X
1L3
(604) 631-3300
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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 (Check one):
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Large accelerated filer
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Accelerated filer
x
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Non-accelerated filer
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Smaller reporting company
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Emerging growth company
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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
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Title of Securities To Be
Registered (1)
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Amount To Be
Registered (2)
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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
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Common Shares
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871,787
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$
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2.28
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$
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1,987,674.36
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$247.47 (4)
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Notes
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(1)
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The Common Shares being registered relate to restricted share unit grants to be undertaken in the future, with restricted share unit vesting conditions to be determined in accordance with the provisions of the Registrant's
Correvio Pharma Corp. Restricted Share Unit Plan
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(2)
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Pursuant to Rule 416 under the U.S. Securities Act of 1933, as amended (the “Securities Act”), the number of Common Shares being registered hereby shall be adjusted to include any additional Common Shares that may become issuable as a result of stock splits, stock dividends or any other similar transactions effected without the receipt of consideration that results in an increase in the number of the Registrant’s outstanding Common Shares in accordance with the provisions of the Registrant's
Correvio Pharma Corp. Restricted Share Unit Plan
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to paragraphs (c) and (h)(1) of Rule 457 under the Securities Act on the basis of the average of the high and low prices for the Common Shares on the Nasdaq Stock Market on May 11, 2018 (taking into account the prices for the Common Shares of Cardiome Pharma Corp. (“Cardiome”), the Registrant’s predecessor issuer.
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(4)
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Pursuant to Rule 457(p) under the Securities Act, the registration fee of $247.47 due for the registration of the securities to be registered hereby is offset by the $19,823 registration fee associated with the unsold securities under the Registration Statement on Form F-10 (No. 333-209606) initially filed by the Registrant’s predecessor issuer, Cardiome, on February 19, 2016 and terminated by its terms effective April 1, 2018.
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EXPLANATORY NOTE
Effective May 15, 2018, Cardiome and the
Registrant completed a court-approved statutory plan of arrangement (the “Arrangement”) under the Canada Business Corporations
Act. Under the Arrangement each holder of common shares of Cardiome received one common share of the Registrant.
Prior to the Arrangement, the Cardiome common
shares were registered pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Upon effectiveness of the Arrangement, the common shares of the Registrant were deemed registered under Section 12(b) of the
Exchange Act, with the Registrant deemed to be a successor issuer to Cardiome pursuant to Rule 12g-3(a) under the Exchange Act.
As a result, future filings with the SEC
will be made by the Registrant (and no longer by Cardiome).
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents, or excerpts thereof
as indicated, filed by Cardiome, predecessor to the Registrant, with the Securities and Exchange Commission (the “Commission”)
are incorporated by reference into this Registration Statement:
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(a)
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Annual report on Form 20-F of Cardiome for the fiscal year ended December 31, 2017, filed with the Commission on April 30, 2018;
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(b)
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Reports on Form 6-K of Cardiome, furnished to the Commission on March 22, 2018, March 29, 2018, April 3, 2018, April 9, 2018, April 13, 2018 and May 15, 2018;
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(c)
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All reports filed pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), by the Registrant since December 31, 2017; and
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(d)
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The description of the Registrant’s common shares included in Exhibit 99.1 to the Form 6-K furnished to the Commission on April 13, 2018.
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All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 herein and shall be deemed to be a part hereof from the date of the filing
of such documents. In addition, any Report on Form 6-K of the Registrant hereafter furnished to the Commission pursuant
to the Exchange Act shall be incorporated by reference into this Registration Statement if and to the extent provided in such document.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable
Item 6. Indemnification of Directors and Officers
Our directors and officers are entitled to indemnification in
the following circumstances:
(a) Under the
Canada Business Corporations
Act
, 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. A corporation may not indemnify
an individual unless the individual (i) acted honestly and in good faith with a view to the best interests of the corporation or,
as the case may be, the other entity for which the individual acted as a director or officer or in a similar capacity at the corporation's
request and (ii) 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, with court approval, be made in connection
with an action by or on behalf of the corporation or other entity to procure a judgment in its favor, to which the individual is
made a party because of his or her association with the corporation or other entity, as the case may be, if the individual satisfies
the conditions set forth above to qualify for indemnification. A director or officer is entitled to such indemnification from the
corporation 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 corporation 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.
(b) Our bylaws provide that we will indemnify
any of our directors or officers, or former directors or officers, and other parties specified by the bylaws against all costs,
charges, and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by them for any
civil, criminal or administrative action or proceeding to which they are made a party by reason of being or having been a director
or officer.
(c) We have entered into indemnity agreements
("Indemnity Agreements") with certain of our officers and directors, pursuant to which we are obligated to indemnify
and hold harmless such persons against all costs, charges, and expenses, including any amounts paid to settle actions or satisfy
judgments, reasonably incurred by them in respect of any civil, criminal, administrative, investigative, or other proceeding to
which they are made a party by reason of being or having been an officer or director. However, such indemnification obligations
arise only to the extent that the party seeking indemnification was acting honestly and in good faith with a view to our best interests,
and, in the case of criminal or administrative actions or proceedings enforced by monetary penalties, that such person had reasonable
grounds for believing that his or her conduct was lawful. Under these Indemnity Agreements, we may advance to the indemnified parties
the expenses incurred in defending any such actions or proceedings, but if the director or officer does not meet the conditions
to qualify for indemnification, such amounts shall be repaid.
As permitted by the
Canada Business Corporations
Act
and our bylaws, we have purchased directors' and officers' liability insurance that, under certain circumstances, insures
the directors and officers against the costs of defense, settlement, or payment of a judgment.
Insofar as indemnification for liabilities
arising under the Securities Act 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 and is therefore unenforceable.
Item 7. Exemption From Registration Claimed
Not Applicable.
Item 8. Exhibits
The following exhibits are filed as part
of this registration statement.
Exhibit No. Description
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 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;
(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; and
(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 of 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 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 on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Vancouver, Province of British Columbia, Canada, on May 17, 2018.
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CORREVIO PHARMA CORP.
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By:
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/s/ William Hunter
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Name:
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William Hunter
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Title:
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Chief Executive Officer
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POWER OF ATTORNEY
Each person whose signature appears below
authorizes William Hunter and Justin Renz as his attorney in fact and agent, with full power of substitution and resubstitution,
to execute, in his name and on his behalf, in any and all capacities, this Registration Statement on Form S-8 and any amendment
thereto (and any additional registration statement related thereto permitted by Rule 462(b) promulgated under the Securities Act
of 1933 (and all further amendments including post-effective amendments thereto)) necessary or advisable to enable the Registrant
to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission,
in respect thereof, in connection with the registration of the securities which are the subject of such registration statement,
which amendments may make such changes in such registration statement as such attorney may deem appropriate, and with full power
and authority to perform and do any and all acts and things whatsoever which any such attorney or substitute may deem necessary
or advisable to be performed or done in connection with any or all of the above-described matters, as fully as each of the undersigned
could do if personally present and acting, hereby ratifying and approving all acts of any such attorney or substitute.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on May 17, 2018.
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Signature
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Title
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/s/ William Hunter
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Chief Executive Officer and Director
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William Hunter
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/s/ Justin Renz
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Chief Financial Officer
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Justin Renz
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/s/ James O’Shea
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Director
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James O’Shea
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/s/ Richard M. Glickman
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Director
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Richard M. Glickman
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/s/ Mark H. Corrigan
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Director
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Mark H. Corrigan
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/s/ Arthur H. Willms
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Director
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Arthur H. Willms
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/s/ Robert J. Meyer
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Director
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Robert J. Meyer
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AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of the Securities
Act of 1933, as amended, the undersigned certifies that it is the duly authorized United States representative of Correvio Pharma
Corp. and has duly caused this Registration Statement on Form S-8 to be signed on behalf of it by the undersigned, thereunto duly
authorized, in the City of Vancouver, British Columbia, Canada on May 17, 2018.
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CARDIOME, INC.
(Authorized U.S. Representative)
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By:
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/s/ William Hunter
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Name:
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William Hunter
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Title:
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Authorized Signatory
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