As filed with the Securities and Exchange Commission on February 25, 2022

Registration No. 333-262820

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

AMENDMENT NO. 1

TO

FORM F-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

OBSEVA SA

(Exact name of registrant as specified in its charter)

 

 

Not Applicable

(Translation of registrant’s name into English)

 

 

 

Switzerland

(State or other jurisdiction of

incorporation or organization)

  

Not Applicable

(I.R.S. Employer

Identification Number)

Chemin des Aulx, 12

1228 Plan-les-Ouates

Geneva, Switzerland

Tel: +41 22 552 38 40

(Address and telephone number of registrant’s principal executive offices)

 

 

Cogency Global Inc.

122 East 42nd Street, 18th Floor

New York, New York 10168

(212) 947-7200

(Name, address and telephone number of agent for service)

 

 

Copies of all communications, including communications sent to agent for service, should be sent to:

Divakar Gupta

Ryan Sansom

Cooley LLP

55 Hudson Yards

New York, New York 10001

(212) 479-6000

 

 

APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to time after the effective date of this registration statement.

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box.  ☐

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, please 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 registration statement pursuant to General Instruction I.C. or a post-effective amendment thereto that shall become effective on filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.  ☐

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.  ☐

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.  ☐

 

†

The term “new or revised financial accounting standard” 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), may determine.

 

 

 

EXPLANATORY NOTE

This Amendment No. 1 (“Amendment No. 1”) to the Registration Statement on Form F-3 (“Registration Statement”) is being filed solely for the purpose of filing an updated Exhibit 5.1 and updating Item 9 of the Registration Statement accordingly. This Amendment No. 1 does not modify any provision of the prospectus that forms a part of the Registration Statement and accordingly, such prospectus has been omitted.

PART II

INFORMATION NOT REQUIRED IN PROSPECTUS

Item 9. Exhibits.

The following exhibits are filed with this registration statement or are incorporated herein by reference.

 

        Incorporated by Reference  
Exhibit
Number		   Exhibit Description   Form     File Number     Exhibit     File Date  
    4.1**   Articles of Association     Form F-3       333-262820       4.1       02/17/2022  
    4.2   Registration Rights Agreement by and among the Registrant and certain holders of its capital shares, dated as of January 17, 2017.     Form F-1/A       333-215383       4.1       01/23/2017  
    4.3   Registration Rights Agreement, by and between the Registrant and the investors named therein, dated as of October 9, 2017     Form 6-K       001-37993       99.2       10/11/2017  
    4.4   Registration Rights Agreement, dated as of October 12, 2021, by and between the Company and the Purchasers.     Form 6-K       001-37993       99.5       10/13/2021  
    4.5   Amended and Restated Securities Purchase Agreement, deemed dated as of October  12, 2021, by and among the Company and the Purchasers.     Form 6-K       001-37993       99.3       01/28/2022  
    5.1*   Opinion of Lenz & Staehelin, Swiss counsel of the Registrant, as to the validity of the common shares.        
  23.1**   Consent of PricewaterhouseCoopers SA, independent registered public accounting firm.     Form F-3       333-262820       23.1       02/17/2022  
  23.2*   Consent of Lenz & Staehelin (included in Exhibit 5.1).        
  24.1**   Powers of Attorney (included on the signature page).     Form F-3       333-262820       24.1       02/17/2022  
107**   Filing Fee Table     Form F-3       333-262820       107       02/17/2022  

 

*

Filed herewith.

**

Previously filed.

 

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SIGNATURES

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-3 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 San Diego, California on February 25, 2022.

 

OBSEVA SA
By:   /s/ Brian O’Callaghan
Name:   Brian O’Callaghan
Title:   Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

 

Name

   

Title

  

Date

/s/ Brian O’Callaghan

Brian O’Callaghan

   

Chief Executive Officer and Director
(Principal Executive Officer)

   February 25, 2022

/s/ Will Brown

Will Brown

   

Chief Financial Officer

(Principal Financial Officer and Principal Accounting Officer)

   February 25, 2022

*

Frank Verwiel

   

Chairperson of the Board of Directors

   February 25, 2022

*

Ernest Loumaye

   

Director

   February 25, 2022

*

Annette Clancy

   

Director

   February 25, 2022

*

Anne VanLent

   

Director

   February 25, 2022

*

Ed Mathers

   

Director

   February 25, 2022

*

Catarina Edfjäll

 

   

Director

   February 25, 2022

 

Cogency Global Inc.
By:  

*

   

Authorized Representative in the United States

   February 25, 2022    
Name:   Colleen A. DeVries         
Title:  

Senior Vice-President    

on behalf of Cogency Global Inc.    

     
*By:  

/s/ Brian O’Callaghan

     
  Brian O’Callaghan     
  Attorney-in-fact     

 

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Exhibit 5.1

 

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Lenz & Staehelin

Route de Chêne 30

CH-1211 Geneva 6

Tel: +41 58 450 70 00

Fax: +41 58 450 70 01

 

Brandschenkestrasse 24

CH-8027 Zurich

Tel: +41 58 450 80 00

Fax: +41 58 450 80 01

 

Avenue de Rhodanie 40C

CH-1007 Lausanne

Tel: +41 58 450 70 00

Fax: +41 58 450 70 01

 

www.lenzstaehelin.com

ObsEva SA

Chemin des Aulx 12

1228 Plan-les-Ouates

Switzerland

Geneva, February 17, 2022

20156.012 / M1.9069870_1 HUYNV

ObsEva SA – Registration Statement on Form F-3

Ladies and Gentlemen,

We have acted as special Swiss counsel to ObsEva SA (the “Company”) in connection with the filing of (i) a registration statement on Form F-3 (the “Registration Statement”), including the prospectus set forth therein (the “Prospectus”) for the purpose of registering under the United States Securities Act of 1933, as amended (the “Securities Act”), up to 7,344,017 common shares, par value of CHF 1/13 each (the “Offered Shares”), of the Company, consisting of (i) 6,325,301 common shares issuable pursuant to the conversion of USD 10,500,000 of principal of convertible notes held by or issuable to JGB (Cayman) Port Ellen Ltd., and (ii) 1,018,716 common shares underlying warrants to purchase common shares, as further described in the Registration Statement.

As such counsel, we have been requested to render an opinion as to certain matters of Swiss law.

 

1.

REVIEWED DOCUMENTS

For the purpose of giving this opinion, we have only examined the following documents (the “Documents”):

 

(i)

the Registration Statement;

 

(ii)

the Prospectus;

Partners Geneva: Shelby R. du Pasquier · Guy Vermeil · François Rayroux · Jean-Blaise Eckert · Daniel Tunik · Olivier Stahler · Andreas Rötheli ·

Xavier Favre-Bulle · Benoît Merkt · David Ledermann · Jacques Iffland · Daniel Schafer · Miguel Oural · Fedor Poskriakov · Frédéric Neukomm ·

Cécile Berger Meyer · Rayan Houdrouge · Floran Ponce · Valérie Menoud · Hikmat Maleh · Sevan Antreasyan · Roman Graf ·

Zurich: Patrick Hünerwadel · Stefan Breitenstein · Matthias Oertle · Martin Burkhardt · Heini Rüdisühli · Marcel Meinhardt ·Patrick Schleiffer · Thierry Calame · Beat Kühni · Lukas Morscher · Tanja Luginbühl · Prof. Jürg Simon · Matthias Wolf · Hans-Jakob Diem ·Prof. Pascal Hinny · Harold Frey · Marcel Tranchet · Tino Gaberthüel · Astrid Waser · Stephan Erni · Dominique Müller · Alexander Greter ·Peter Ling · Simone Ehrsam · Fabiano Menghini

Lausanne: Lucien Masmejan

Admitted to the Bar

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(iii)

a copy of the articles of association of the Company, as at February 11, 2022, as downloaded from the website of the Canton of Geneva (https://www.ge.ch/recherche-entreprises-dans-registre-du-commerce-geneve) on February 16, 2022 at 2:35 pm CET (the “Articles of Association”); and

 

(iv)

a certified copy of an extract from the Commercial Register of the Canton of Geneva, dated February 14, 2022, in respect of the Company (the “Register Extract”).

No documents have been reviewed by ourselves in connection with this opinion other than those listed above. Accordingly, our opinion is limited to the above Documents and their legal implications under Swiss law.

 

2.

ASSUMPTIONS

In rendering the opinion below, we have assumed:

 

(a)

the completeness of and conformity to the originals of all Documents submitted to us as drafts or copies;

 

(b)

that the Articles of Association are in all respect similar to a certified copy of such document which would have been issued by the Commercial Registry of the Canton of Geneva;

 

(c)

to the extent relevant for the purpose of this opinion, that all factual information contained in, or material statements given in connection with, the Documents are true, complete and accurate;

 

(d)

that (i) the number of Offered Shares will not exceed the number of common shares that may be issued under the Articles of Association (as may be amended from time to time), (ii) the Registration Statement will be effective, (iii) the Prospectus will be effective, (iv) the issuance of and payment for the Offered Shares will be made in compliance with the Articles of Association (as may be amended from time to time), the Registration Statement and the Prospectus, (v) the consideration received by the Company for the issuance of the Offered Shares will be fully paid and will not be less than the par value of such Offered Shares, (vi) to the extent applicable, the Offered Shares will be issued in accordance with articles 647 – 652h, 931a – 937 and 973c of the Swiss Code of Obligations as well as the relevant intermediated securities regulations and commercial registry regulations, and (vii) the issuance and payment of the Offered Shares will be made in accordance with the Articles of Association (as may be amended from time to time) and organizational regulations of the Company, any applicable law or any requirement or restriction imposed by any court or governmental body having jurisdiction on the Company;

 

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(e)

that prior to the delivery of any Offered Shares, the board of directors of the Company shall have duly authorized the issuance of such Offered Shares in accordance with the Articles of Association (as may be amended from time to time), that such authorization shall not have been amended or rescinded, and that all necessary corporate actions of the Company to approve the issuance and sale of the Offered Shares shall have been performed in accordance with the Articles of Association (as may be amended from time to time); and

 

(f)

that all Offered Shares will be sold in the manner stated in the Registration Statement and the Prospectus.

 

3.

OPINION

Based upon the foregoing and subject to the qualifications set out below, we are of the opinion that the Offered Shares, if and when issued, will be validly issued, fully paid-in and non-assessable.

 

4.

QUALIFICATIONS

The above opinion is subject to the following qualifications:

 

(a)

This opinion is limited to Swiss law as existing and interpreted on the date hereof. We have abstained from examining any issues of any other jurisdiction and therefore no opinion on matters other than Swiss law is to be inferred from this opinion.

 

(b)

In this opinion, Swiss legal concepts are expressed in the English language and not in their original language. These concepts may not be identical to the concepts described by the same English language terms as they exist under the laws of other jurisdictions.

 

(c)

This opinion is based on the current provisions of the laws of Switzerland and the regulations thereunder in effect on the date hereof and as currently interpreted in Switzerland. Such laws and their interpretation are subject to change.

 

(d)

We express no opinion as to the accuracy or completeness of the information contained in the Registration Statement or the Prospectus.

 

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(e)

We express no opinion as to any commercial, calculating, auditing or other non-legal matters, including for what regards the decisions of the board of directors to cancel pre-emptive rights of existing shareholders. Further, this opinion does not cover any matter relating to Swiss or foreign taxes. This opinion is also confined to the matters stated herein and is not to be read as extending, by implication or otherwise, to any other matter.

 

 

We have rendered this opinion as of the date hereof and we assume no obligation to advise you of changes that may thereafter be brought to our attention.

We hereby consent to the incorporation by reference of this opinion in the Registration Statement, and to the references to us under the heading “Legal Matters” contained in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

This opinion shall be governed by and construed in accordance with the laws of Switzerland.

Sincerely yours,

/s/ Lenz & Staehelin

 

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