As filed on February 2, 2021 with the Securities and Exchange Commission
Registration No. 333-236797
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
Form F-1
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NLS Pharmaceutics Ltd.
(Exact name of registrant as specified in its charter)
Switzerland | 2834 | Not Applicable | ||
(State or other jurisdiction of
incorporation or organization) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Alexander Zwyer | ||
Chief Executive Officer | Puglisi & Associates | |
Alter Postplatz 2 | 850 Library Ave., Suite 204 | |
CH-6370 Stans, Switzerland | Newark, DE 19711 | |
Tel: +41.41.618.80.00 | Tel: (302) 738-6680 | |
(Address, including zip code, and telephone number, | (Name, address, including zip code, and telephone | |
including area code, of registrant’s principal executive offices) | number, including area code, of agent for service) |
Copies to:
Oded Har-Even, Esq. | ||||||
Howard Berkenblit, Esq. | Mitchell Nussbaum, Esq. | Hans-Jakob Diem, Esq. | ||||
Ron Ben-Bassat, Esq. | Pascal Honold, Esq. | Angela M. Dowd, Esq. | Patrick Schleiffer, Esq. | |||
Sullivan & Worcester LLP | Wenger & Vieli AG | Loeb & Loeb LLP | Lenz & Staehelin | |||
1633 Broadway | Dufourstrasse 56 | 345 Park Ave. | Brandschenkestrasse 24 | |||
New York, NY 10019 | Zurich, Switzerland CH-8034 | New York, NY 10154 | Zurich, Switzerland CH-8027 | |||
Tel: 212.660.5000 | Tel: +41.58.958.58.58 | Tel: 212.407.4000 | Tel: +41.58.450.8000 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date hereof.
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, 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. ☒ 333-236797
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.
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this “Post-Effective Amendment”) to the Registration Statement on Form F-1 (Registration No. 333-236797) (the “Registration Statement”) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the “Securities Act”), solely to replace Exhibit 5.1 as indicated in Part II of this Post-Effective Amendment. The Registration Statement was declared effective by the Securities and Exchange Commission on January 28, 2021. This Post-Effective Amendment does not modify any provision of the preliminary prospectus constituting Part I the Registration Statement. Accordingly, this Post-Effective Amendment consists only of the facing page, this explanatory note, Part II of the Registration Statement, the signature page to this Post-Effective Amendment and Exhibit 5.1. This Post-Effective Amendment shall become effective upon filing with the Commission in accordance with Rule 462(d) under the Securities Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 6. Indemnification of Directors, Officers and Employees
Under Swiss law, a corporation may indemnify its directors or officers against losses and expenses (except for such losses and expenses arising from willful misconduct or negligence, although legal scholars advocate that at least gross negligence be required; however, some scholars also advocate that with any breach of duty, indemnification by the Company is not permissible), including attorney’s fees, judgments, fines and settlement amounts actually and reasonably incurred in a civil or criminal action, suit or proceeding by reason of having been the representative of, or serving at the request of, the corporation.
Subject to Swiss law, our articles of association provide for indemnification of the existing and former members of our board of directors, executive management, and their heirs, executors and administrators, against liabilities arising in connection with the performance of their duties in such capacity, and permit us to advance the expenses of defending any act, suit or proceeding to members of our board of directors and executive management.
In addition, under general principles of Swiss employment law, an employer may be required to indemnify an employee against losses and expenses incurred by such employee in the proper execution of his or her duties under the employment agreement with the company.
We intend to enter into indemnification agreements with each of the members of our board of directors and executive officers in the form to be filed as an exhibit to this registration statement upon the completion of this offering. Irrespective of our entering or not entering into indemnification agreements with our board of directors and executive officers, prior to or shortly after the completion of this offering, we intend to take out directors’ and officers’ liability insurance to cover certain actions undertaken by our board of directors and executive officers.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to directors, officers and controlling persons of the Company, the Company has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable.
Item 7. Recent Sales of Unregistered Securities
Set forth below are the sales of all securities by the Company since November 2017, which were not registered under the Securities Act. The Company believes that each of such issuances was exempt from registration under the Securities Act in reliance on Section 4(a)(2) of the Securities Act, Rule 701 and/or Regulation S under the Securities Act.
On September 14, 2020, our shareholders approved an amendment to our articles of association, which reflects a 5,000 for 1 stock split of our common shares, effective as of September 14, 2020, or the Share Split. Information in this Item 7 reflects the Share Split.
On July 17, 2018, we issued an aggregate of 260,000 of our common shares to the Shareholders, in connection with the conversion of an aggregate amount of $3,418,519 borrowed by us pursuant to a $7.1 million credit facility, or the Credit Facility, at a conversion price of $13 per common share.
On March 12, 2019, we issued an aggregate of 280,000 of our common shares to the Shareholders, in connection with the conversion of the remaining $3,681,481 borrowed by us pursuant to the Credit Facility, at a conversion price of $13 per common share.
II-1
Also on March 12, 2019, we issued an aggregate of an additional 40,000 of our common shares to Magnetic Rock Investment AG in connection with the conversion CHF 526,979.84 ($526,769) of a CHF 550,000 ($557,920) convertible promissory note at a conversion price of CHF 13 (approximately $13) per common share.
On March 12, 2019, there was a reorganization of our Company, whereby NLS-0 Pharma AG and NLS Pharma AG merged into the Company, or the Merger, and as a result thereof, and in connection therewith, we issued and subsequently assigned an aggregate of 745,000 of our common shares to those holders of NLS-0 and NLS Pharma common shares, respectively.
On March 12, 2019, simultaneously with the closing of the Merger, we issued an aggregate of 260,000 of our common shares to the Shareholders, in exchange for the consideration of the conversion of a bridge loan in the amount of $2 million and a credit facility, of which we had drawn $1.45 million, at a conversion price of $13 per common share.
Item 8. Exhibits and Financial Statement Schedules
Exhibits:
II-2
* | Filed herewith. |
^ | Previously filed. |
II-3
Financial Statement Schedules:
All financial statement schedules have been omitted because either they are not required, are not applicable or the information required therein is otherwise set forth in the Company’s financial statements and related notes thereto.
Item 9. Undertakings
(a) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 6 hereof, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes that:
(1) That for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.
(2) That for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus 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.
II-4
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 on Form F-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in Stans, Switzerland on February 2, 2021.
NLS Pharmaceutics Ltd. | ||
By: | /s/ Alexander Zwyer | |
Alexander Zwyer | ||
Chief Executive Officer |
POWER OF ATTORNEY
The undersigned officers and directors of NLS Pharmaceutics Ltd. hereby constitute and appoint each of Alexander Zwyer and Robert Dickey with full power of substitution, each of them singly our true and lawful attorneys-in-fact and agents to take any actions to enable the Company to comply with the Securities Act, and any rules, regulations and requirements of the SEC, in connection with this amendment to the registration statement on Form F-1, including the power and authority to sign for us in our names in the capacities indicated below any and all further amendments to this registration statement and any other registration statement filed pursuant to the provisions of Rule 462 under the Securities Act.
Pursuant to the requirements of the Securities Act of 1933, this registration statement on Form F-1 has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/ Alexander Zwyer | Chief Executive Officer | February 2, 2021 | ||
Alexander Zwyer | (Principal Executive Officer) | |||
/s/ Robert Dickey | Interim Chief Financial Officer | February 2, 2021 | ||
Robert Dickey | (Principal Financial and Accounting Officer) | |||
/s/ Ronald Hafner | Chairman of the Board of Directors | February 2, 2021 | ||
Ronald Hafner | ||||
/s/ Pascal Brenneisen | Director | February 2, 2021 | ||
Pascal Brenneisen | ||||
/s/ Myoung-Ok Kwon, Ph.D. | Director | February 2, 2021 | ||
Myoung-Ok Kwon, Ph.D. | ||||
/s/ Stig Løkke Pedersen | Director | February 2, 2021 | ||
Stig Løkke Pedersen |
II-5
SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant to the Securities Act of 1933, as amended, the undersigned, Puglisi & Associates, the duly authorized representative in the United States of NLS Pharmaceutics Ltd., has signed this registration statement on February 2, 2021.
Puglisi & Associates | ||
By: | /s/ Donald J. Puglisi | |
Name: | Donald J. Puglisi | |
Title: | Managing Director |
II-6
Exhibit 5.1
NLS Pharmaceutics Ltd Alter Postplatz 2 6370 Stans Switzerland
Zürich, 2 February 2021
NLS Pharmaceutics Ltd – Registration Statement on Form F-1
Ladies and Gentlemen,
We have acted as special Swiss counsel to NLS Pharmaceutics Ltd, a stock corporation incorporated under the laws of Switzerland (the “Company”), in connection with the filing of a Registration Statement (as defined below), including the prospectus set forth therein, with the United States Securities and Exchange Commission (the “SEC”) for the purpose of registering under the United States Securities Act of 1933, as amended (the “Securities Act”), the offer and sale of up to (i) 4,819,277 common shares (the “Common Shares”), par value CHF 0.02 per share (the “Firm Shares”), (ii) warrants (the “Common Warrants”) to purchase up to additional 4,819,277 Common Shares, (iii) at the option of the several underwriters (the “Underwriters”), the issuance and sale to the Underwriters of up to additional 722,891 Common Shares (the “Overallotment Shares” and together with the Firm Shares, the “Shares”) and/or Common Warrants to purchase up to additional 722,891 Common Shares (the “Overallotment Warrants” and together with the Common Warrants, the “Warrants”), and (iv) warrants (the “Underwriter Warrants”) to purchase additional Common Shares issued to the Underwriters (Common Shares for which Warrants and Underwriter Warrants are granted, the “Warrant Shares”). As such counsel, we have been requested to give our opinion as to certain legal matters of Swiss law.
Capitalized terms used but not defined herein shall have the meaning ascribed to them in the Documents (as defined below).
|
Dr. Christoph Schmid Dr. Peter Altorfer Bignia Vieli LL.M. Dr. Michael Huber LL.M. Georg Zondler Dr. Wolfgang Zürcher LL.M. 3, 4 Dr. Christian Wenger LL.M. Dr. Andreas Hünerwadel LL.M. Dr. Urs Weber-Stecher LL.M. Dr. Frank Scherrer LL.M. Dr. Beat Walti Dr. Roman Heiz LL.M. Dr. Michael Mráz Barbara Brauchli Rohrer 1, 2 Dr. Beat D. Speck LL.M. 3, 4 Bruno Bächli 1, 2 Pascal Honold LL.M. Philipp C. Lindenmayer LL.M. Dr. Nicolas Bracher LL.M. Dominik Bürgy 1, 2 Dr. Michael Tschudin Stefan Müller LL.M. 3, 4 Regula Grunder LL.M. Claudia Keller LL.M. Flavio Peter LL.M. Marc Gerber 1 Daniel S. Weber LL.M. Dr. Martin Peyer LL.M. Patrick Näf LL.M. Marc Walter LL.M. Dr. Michael Baier LL.M. 3, 4 Bastian Thurneysen LL.M. 1 Dr. Daniel P. Oehri LL.M. 4 Martin Berweger 3, 4 Florian Wegmann Stephanie Lienhard Ursina Böni 2 Sebastian Huber LL.M. Michèle Joho 3, 4 Dr. Andrea Schütz LL.M. Dr. Marcel Boller Markus Seglias 1, 2 Mike Abegg LL.M. Sabine Taxer 4 Lilith Ritzmann Meltem Steudler Alessa Waibel LL.M. Nadine Zanetti Deborah Sutter Patric Eggler 1, 2 Dominique Roos Nathalie Germann 4 Dominik Rietiker 3, 4 Michelle Wiki Dominique Mattmann Noëmi Kunz-Schenk 1, 2 David Wohlgemuth
Dr.Marco Cereghetti Konsulent Prof. Dr.Lorenz Droese Konsulent Prof. Dr.Daniel Girsberger LL.M. Konsulent Dr.Urs Landolf Konsulent 2
|
1Dipl. Steuerexperte / Steuerexpertin | 2Nicht als Anwalt / Anwältin zugelassen | 3Notar / Notarin des Kantons Zug | 4Eingetragen im Anwaltsregister des Kantons Zug |
I. | Basis of Opinion |
This opinion is confined to and given on the basis of the laws of Switzerland in force at the date hereof. Such laws and the interpretation thereof are subject to change. In the absence of explicit statutory law, we base our opinion solely on our independent professional judgment. 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.
For purposes of this opinion we have not conducted any due diligence or similar investigation as to factual circumstances, which are or may be referred to in the Documents (as defined hereafter), and we express no opinion as to the accuracy of representations and warranties of facts set out in the Documents or the factual background assumed therein.
For purposes of this opinion, we have only reviewed originals or copies of the following documents we have deemed necessary or advisable for the purpose of rendering this opinion (collectively the “Documents”):
1. | An electronic copy of the registration statement on Form F-1 (Registration No. 333-236797) filed by the Company to the SEC (as amended to date, the “Registration Statement”); |
2. | an electronic copy of the articles of association (Statuten) of the Company dated 29 January 2021 (the “Articles”), as filed with the Commercial Register of the Canton of Nidwalden; |
3. | an electronic copy of the excerpt of the electronic publication in the SHAB (Swiss Official Gazette of Commerce) in respect of the Company dated 2 January 2021 (the “Excerpt”); |
4. | an electronic copy of the notarized shareholders’ resolutions passed at the Company’s extraordinary general meeting held on 29 January 2021, resolving on (i) an ordinary capital increase for the creation of the Firm Shares, and (ii) certain amendments to the Articles with respect to the authorized share capital for the Overallotment Shares and the conditional share capital as underlying for the Warrants and Underwriter Warrants (the “Shareholders’ Resolutions”); and |
5. | an electronic copy of the notarized resolutions of the Company’s board of directors dated 29 January 2021 regarding the implementation of the ordinary capital increase (Feststellungsbeschluss) and the corresponding amendments to the Articles (the “Board Resolutions”). |
No documents, other than the Documents, have been reviewed by us in connection with this opinion. Accordingly, we shall limit our opinion to the Documents and their legal implications under Swiss law.
2
II. | Assumptions |
In rendering the opinion below, we assumed:
a) | the genuineness of all signatures; |
b) | the completeness of and conformity to the originals of all Documents submitted to us as copies; |
c) | that the Registration Statement has been duly filed by the Company; |
d) | that the Registration Statement is effective and will continue to be effective and the offering and sale of and payment for the Shares and Warrant Shares will be in accordance with the limitations referred to in the Registration Statement; |
e) | to the extent relevant for purposes of this opinion, that all factual information contained in, or material statements given in connection with, the Documents are true, complete and accurate; |
f) | no laws (other than those of Switzerland) affect any of the conclusions stated in this opinion; |
g) | prior to the issuance of any Firm Shares, the existing shareholders will have voluntarily waived their pre-emptive rights regarding the Firm Shares; |
h) | prior to the issuance of any Overallotment Shares, (i) the board of directors of the Company will have duly authorized the issuance and sale of such Overallotment Shares (in particular a resolution of the Company’s board of directors regarding the implementation of the authorized capital increase (Feststellungsbeschluss) was made) and such authorization will not have been amended and will be in full force and effect until the issuance of all Overallotment Shares, (ii) the Overallotment Shares are fully paid-in as to their nominal value on a bank account of a Swiss licensed bank in Switzerland and (iii) the board of directors of the Company will have validly excluded the pre-emptive rights of the existing shareholders for purposes of offering and selling the Overallotment Shares; |
i) | prior to the issuance of any Warrant Shares (i) the exercise notice to exercise the respective Warrants and Underwriter Warrants will have been properly delivered to the Company, (ii) such Warrant Shares will be fully paid-in on a bank account of a Swiss licensed bank in Switzerland as to their exercise price of at least nominal value, and (iii) the board of directors of the Company will have validly excluded the pre-emptive rights of the existing shareholders for purposes of offering and selling the Warrant Shares; |
3
j) | the Overallotment Shares and Warrant Shares are issued and delivered in accordance with the Registration Statement (including, for the avoidance of doubt, any annexes filed as exhibits to the Registration Statement); and |
k) | all authorizations, approvals, consents, licenses, exemptions, other than as required by mandatory Swiss law applicable to the Company or the Articles, and other requirements for the filing of the Registration Statement or for any other activities carried on in view of, or in connection with, the performance of the obligations expressed to be undertaken by the Company in the Registration Statement have been duly obtained or fulfilled in due time and are and will remain in full force and effect, and any related conditions to which the parties thereto are subject have been satisfied. |
III. | Opinion |
Based upon the foregoing and subject to the qualifications set out below, we are of the opinion that the Shares and the Warrant Shares issuable upon the proper exercise of the Warrants and Underwriter Warrants, when sold and upon registration of the corresponding share capital increase into the Commercial Register of the Canton of Nidwalden, will be validly issued, fully paid-in (up to their nominal amount) and non-assessable (which term means when used herein that no further contributions have to be made by the holders of the Shares and the Warrant Shares).
IV. | Qualifications |
This opinion is subject to the following qualifications:
a) | This opinion is limited to matters of Swiss law as in force on the date hereof and as applied and construed by the courts of Switzerland. |
b) | We express no opinion as to any commercial, calculating, auditing or other non-legal matters. 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. |
In this opinion, Swiss legal concepts are expressed in English terms and not in their original Swiss language. The concepts concerned may not be identical to the concepts described by the same English terms as they exist under the laws of other jurisdictions. This opinion may, therefore, only be relied upon under the express condition that any issues of interpretation or liability arising hereunder will be governed by Swiss law and that any dispute arising out of or in connection with this opinion shall be subject to the exclusive jurisdiction of Zurich 1, Switzerland.
This opinion is given as of the date hereof. We have no responsibility to notify you of changes of law or facts affecting the opinions expressed herein that occur or come to our attention after the date hereof.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and further consent to the reference to our name under the caption “Legal Matters” 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.
4
Very truly yours, | ||
WENGER & VIELI AG | ||
/s/ Dr. Andreas Hünerwadel | /s/ Pascal Honold | |
Dr. Andreas Hünerwadel | Pascal Honold |
5