As filed with the Securities and Exchange Commission on August 3, 2022

Registration No. 333-          

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

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   Not Applicable

(State or other jurisdiction of

incorporation or organization)

  

(I.R.S. Employer

Identification Number)

Chemin des Aulx, 12

1228 Plan-les-Ouates

Geneva, Switerland

+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, NY 10168

+1 212 947 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, NY 10001

+1 212 479 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. ☒ Registration Statement No. 333-260974

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 Registration Statement shall become effective upon filing in accordance with Rule 462(b) under the Securities Act of 1933, as amended.

 

 

 

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

ObsEva SA (the “Registrant”) is filing this Registration Statement pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and General Instruction IV(A) to Form F-3 to register the resale by a selling stockholder of an additional 20,326,980 common shares, par value CHF 1/13 per share, of the Registrant. The contents of the earlier registration statement on Form F-3 (File No. 333-260974) (the “Original Registration Statement”), which was declared effective by the Securities and Exchange Commission on November 22, 2021, are incorporated in this registration statement by reference.

The required opinions and consents are listed on an Exhibit Index attached hereto.

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.

EXHIBIT INDEX

 

Exhibit
Number		   

Exhibit Description

    Incorporated by Reference to Filings Indicated  
   Form      File No.      Exhibit
No.		      Filing Date  
  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.            
23.2*    Consent of Lenz & Staehelin (included in Exhibit 5.1).            
24.1    Power of Attorney (included on the signature page of the Original Registration Statement).      F-3        333-260974        24.1        11/10/2021  
107*    Filing Fee Table.            

 

*

Filed herewith.

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 Registration Statement on Form F-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, California, on August 3, 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 Registration Statement on Form F-3 has been signed below by the following persons on behalf of the registrant in the capacities and on the dates indicated.

 

Signature    Title   Date

/s/ Brian O’Callaghan

Brian O’Callaghan

   

Chief Executive Officer and Director

(Principal Executive Officer)

   August 3, 2022

/s/ Will Brown

Will Brown

   

Chief Financial Officer

(Principal Financial Officer and Principal

Accounting Officer)

   August 3, 2022

*

Annette Clancy

    Chairperson of the Board of Directors   August 3, 2022

*

Ernest Loumaye

    Director   August 3, 2022

/s/ Stephanie Brown

Stephanie Brown

    Director   August 3, 2022

*

Anne VanLent

    Director   August 3, 2022

*

Ed Mathers

    Director   August 3, 2022

*

Catarina Edfjäll

    Director   August 3, 2022

Cogency Global Inc.

 

By:  

/s/ Colleen A. DeVries

   Authorized Representative in the United States   August 3, 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    

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, August 3, 2022

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 a registration statement on Form F-3 (the “Registration Statement”) for the purpose of registering under the United States Securities Act of 1933, as amended (the “Securities Act”), up to 20,326,980 common shares, par value of CHF 1/13 each (the “Offered Shares”), of the Company issuable pursuant to the conversion of USD 7,662,087.88 of principal of convertible notes, plus USD 181,974.59 of accrued interests thereon, held by or issuable to JGB (Cayman) Port Ellen Ltd., as further described in the Registration Statement and the Original Registration Statement (as described below).

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 registration statement on Form F-3, filed with the Securities Exchange Commission (the “SEC”) on November 10, 2021, and declared effective on November 22, 2021 (the “Original Registration Statement”)

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)

the prospectus on Form 424(b)(7), filed with the SEC on November 23, 2021, under the Original Registration Statement;

 

(iv)

a copy of the articles of association of the Company, as at May 18, 2022, as downloaded from the website of the Canton of Geneva (https://www.ge.ch/recherche-entreprises-dans-registre-du-commerce-geneve) on August 3, 2022 at 4:49 pm CEST (the “Articles of Association”);

 

(v)

a copy of an extract from the Commercial Register of the Canton of Geneva, dated August 3, 2022, as downloaded from the website of the Canton of Geneva (https://www.ge.ch/recherche-entreprises-dans-registre-du-commerce-geneve) on August 3, 2022 at 4:50 pm CEST, in respect of the Company (the “Register Extract”); and

 

(vi)

a request for a moratorium filed with the Tribunal of First Instance of the Canton of Geneva, on July 27, 2022 (the “Moratorium Request”).

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

 

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  of Association (as may be amended from time to time), the Registration Statement, the Original 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 – 653e, 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;

 

(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, the Original 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.

 

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(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)

Although the topic may have been debated in the Swiss legal literature, a set-off effected before the debtor is declared bankrupt or is subject to a moratorium (sursis concordataire), emergency moratorium (sursis extraordinaire), or composition (concordat) pursuant to the Debt Enforcement and Bankruptcy Act (“DEBA”) is valid. The creditor benefiting from the set-off may however be subject to claims or other challenges under a so-called action pauliana if the set-off took place during a certain period preceding the DEBA proceedings and the set-off can be considered an avoidance transaction, which may for example be the case if the debtor was already over-indebted at the time of set-off.

 

(e)

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

 

(f)

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.

 

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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

 

5

Exhibit 23.1

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated March 10, 2022 relating to the financial statements, which appears in the Registration Statement on Form F-3 (No. 333-260974) of ObsEva SA. We also consent to the reference to us under the heading “Experts” in the Registration Statement on Form F-3 (No. 333-260974) incorporated by reference in this Registration Statement.

 

/s/ PricewaterhouseCoopers SA
Geneva, Switzerland
August 3, 2022

 

1

Exhibit 107

Calculation of Filing Fee Table

Form F-3

(Form Type)

ObsEva SA

(Exact Name of Registrant as Specified in its Charter)

Table 1: Newly Registered Securities

 

               
Security Type   Security
Class Title		   Fee
Calculation
Rule		   Amount
Registered(1)(2)		   Proposed
Maximum
Offering
Price Per
Unit		   Maximum
Aggregate Offering
Price		   Fee Rate   Amount of
Registration
Fee(1)
               
Equity   Common Shares, par value CHF 1/13 per share   457(c)    20,326,980    0.24(3)    $4,878,475.20    $0.0000927    $452.23 
         
Total Offering Amounts     $4,878,475.20      —
         
Net Fee Due               $452.23 

 

(1)

The registrant previously registered (i) 9,842,519 common shares that could be issued pursuant to the conversion of $31,496,063 of principal of convertible notes held by or issuable to the selling stockholders (the “Notes”) and (ii) 1,634,877 common shares underlying warrants to purchase common shares, pursuant to a Registration Statement on Form F-3 (File No. 333-260974), which was filed with the Securities and Exchange Commission on November 10, 2021 and declared effective on November 22, 2021 (the “Prior Registration Statement”). In accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), an additional 20,326,980 of the registrant’s common shares that could be issued pursuant to the conversion of the Notes, which have an outstanding balance of $7,662,087.88 and a conversion price of $0.26 per share as of the date hereof, to be resold by the selling stockholders with a proposed maximum aggregate offering price of $4,878,475.20, is hereby registered, representing no more than 20% of the maximum aggregate offering price of unsold securities under the Prior Registration Statement. The securities registered hereunder also include such indeterminate number of shares of common stock as may be issued upon conversion, exchange or exercise of any securities that provide for such issuance or pursuant to the antidilution provisions of any of such securities.

(2)

Pursuant to Rule 416 under the Securities Act, the common shares being registered hereunder include such indeterminate number of ordinary shares as may be issuable with respect to the common shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.

(3)

Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(c) under the Securities Act of 1933, as amended. The calculation of the proposed maximum aggregate offering price of the common shares is based on the average of the high and low price for the common shares on August 2, 2022, as reported on the Nasdaq Global Select Market.