View:

 

As filed with the Securities and Exchange Commission on December 12, 2017

Registration No. 333-         

 

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933

 


 

NABRIVA THERAPEUTICS PLC
(Exact Name of Registrant as Specified in Its Charter)

 


 

Ireland

 

Not applicable

(State or Other Jurisdiction
of Incorporation or Organization)

 

(I.R.S. Employer
Identification No.)

 

 

 

25-28 North Wall Quay,

 

Not applicable

IFSC, Dublin 1, Ireland
(Address of Principal Executive Offices)

 

(Zip Code)

 

2017 Share Incentive Plan

(Full Title of the Plan)

 

Colin Broom
Chief Executive Officer
Nabriva Therapeutics plc
1000 Continental Drive, Suite 600

King of Prussia, PA 19406

(610) 816-6640

(Name, Address and Telephone Number, Including Area Code, of Agent For Service)

 


 

Copies to:

 

Brian A. Johnson
Wilmer Cutler Pickering Hale and Dorr LLP
7 World Trade Center
250 Greenwich Street
New York, NY 10007
(212) 230-8800

 

Robert Crotty
General Counsel
Nabriva Therapeutics plc
1000 Continental Drive, Suite 600
King of Prussia, PA 19406
(610) 816-6640

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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.

 

Large accelerated filer o

 

Accelerated filer o

Non-accelerated filer x

 

Smaller reporting company o

(Do not check if a smaller reporting company)

 

 

 

Emerging growth company x

 

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.  x

 

CALCULATION OF REGISTRATION FEE

 

Title of
Securities to be
Registered

 

Amount to be
Registered(1)

 

Proposed Maximum
Offering Price Per
Share

 

Proposed Maximum
Aggregate Offering
Price

 

Amount of
Registration Fee

Ordinary Shares, nominal value $0.01 per share

 

3,480,999 shares

 

$

6.03

(2)

$

20,991,512

(2)

$

2,614

 

(1)                                 In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from share splits, share dividends or similar transactions.

 

(2)                                 Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(h) of the Securities Act. The price per share and aggregate offering price are calculated on the basis of (a) $6.91, the weighted average exercise price of the 324,100 shares subject to outstanding share options granted under the 2017 Share Incentive Plan, at prices ranging from $6.12 to $8.19 per share and (b) $5.94 per share, the average of the high and low sale prices of the registrant’s Ordinary Shares on the NASDAQ Global Market on December 8, 2017, in accordance with Rule 457(c) under the Securities Act for the 3,156,899 shares issuable under the 2017 Share Incentive Plan that are not subject to outstanding awards.

 

 

 



 

EXPLANATORY NOTE

 

On June 23, 2017, Nabriva Therapeutics plc, a public limited company organized under the laws of Ireland, or Nabriva Ireland, became the successor issuer to Nabriva Therapeutics AG, a stock corporation (Aktiengesellschaft) organized under the laws of Austria, or Nabriva Austria, for certain purposes under both the Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as amended, or the Exchange Act, and certain of Nabriva Austria’s historical reports filed under the Exchange Act are incorporated by reference in this registration statement. Such succession occurred following the conclusion of a tender offer related to the exchange of American Depositary Shares and common shares of Nabriva Austria for ordinary shares of Nabriva Ireland, which resulted in Nabriva Ireland, a new Irish holding company, becoming the ultimate holding company of Nabriva Austria (the predecessor registrant and former ultimate holding company) and its subsidiaries. This Registration Statement on Form S-8 relates to the ordinary shares authorized for issuance under Nabriva Ireland’s 2017 Share Incentive Plan, which was approved by the shareholders of Nabriva Ireland on September 15, 2017.

 



 

PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.   Plan Information.

 

The information required by Item 1 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”).

 

Item 2.   Registrant Information and Employee Plan Annual Information.

 

The written statement required by Item 2 is included in documents sent or given to participants in the plans covered by this registration statement pursuant to Rule 428(b)(1) of the Securities Act.

 

PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.   Incorporation of Documents by Reference.

 

The following documents which have been filed with the Securities and Exchange Commission (the “Commission”) by Nabriva Austria as predecessor registrant or by Nabriva Ireland as successor registrant are incorporated herein by reference:

 

(a) Nabriva Austria’s Annual Report on Form 10-K for the fiscal year ended December 31, 2016.

 

(b) All other reports filed by Nabriva Austria or Nabriva Ireland pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the document referred to in (a) above.

 

(c) the description of Nabriva Ireland’s ordinary shares included under the caption “Description of the Ordinary Shares” in the prospectus dated May 23, 2017, which was filed on May 23, 2017 and is part of the Registration Statement on Form S-4 originally filed with the Commission on April 14, 2017 (Registration no. 333-217315), including any amendments or supplements thereto.

 

All documents subsequently filed by Nabriva Ireland pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this registration statement and prior to the filing of a post-effective amendment to this registration statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of the filing of such documents. Any statement contained in a document 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 which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.

 

Item 4.   Description of Securities.

 

Not applicable.

 

Item 5.   Interests of Named Experts and Counsel.

 

Not applicable.

 

1



 

Item 6.   Indemnification of Directors and Officers.

 

The articles of association of Nabriva Ireland contain indemnification for the benefit of its directors, company secretary and executive officers (and those of other group entities and affiliates) to the fullest extent permitted by Irish law. However, as to the directors and company secretary of Nabriva Ireland, this indemnity is limited under Irish law, which provides that a company may not exempt its directors or company secretary from liability for any negligence, default, breach of duty or breach of trust. The Irish Companies Act prescribes that an advance commitment to indemnify only permits a company to pay the costs or to discharge the liability of a director or company secretary where judgment is given in favor of the director or company secretary in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the director or company secretary acted honestly and reasonably and ought fairly to be excused. Any provision whereby an Irish company seeks to commit in advance to indemnify its directors or company secretary over and above the limitations imposed by the Irish Companies Act will be void, whether contained in its articles of association or any contract between the company and its director or company secretary. This restriction does not apply to Nabriva Ireland’s executive officers who are not members of its Board of Directors or its company secretary.

 

Nabriva Ireland has entered into indemnification agreements with each of its directors and officers. Subject to the provisions of the Irish Companies Act, these indemnification agreements require Nabriva Ireland, among other things, to indemnify its directors and officers for certain expenses, including attorneys’ fees, judgments, fines and settlement amounts incurred by a director or officer in any action or proceeding arising out of his or her service as one of its directors or officers, or any of its subsidiaries or any other company or enterprise to which the person provides services at Nabriva Ireland’s request.

 

Nabriva Ireland provides directors’ and officers’ liability insurance for its directors and executive officers against civil liabilities, which they may incur in connection with their activities on its behalf, including insurance coverage against liabilities under the Securities Act.

 

Item 7.   Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.   Exhibits.

 

Number

 

Description

 

 

 

4.1

 

Memorandum and Articles of Association of Nabriva Ireland (incorporated herein by reference to Exhibit 3.1 to Nabriva Ireland’s Current Report on Form 8-K, dated as of June 26, 2017 (File No. 001-38132))

 

 

 

5.1

 

Opinion of A&L Goodbody

 

 

 

23.1

 

Consent of A&L Goodbody (included in Exhibit 5.1)

 

 

 

23.2

 

Consent of PwC Wirtschaftsprüfung GmbH

 

 

 

24

 

Power of attorney (included on the signature pages of this registration statement)

 

 

 

99.1

 

2017 Share Incentive Plan (incorporated herein by reference to Exhibit 10.2 to Nabriva Ireland’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2017, filed with the Commission on November 9, 2017 (File No. 001-37558))

 

2



 

Item 9.   Undertakings.

 

1.             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:

 

(i)            To include any prospectus required by Section 10(a)(3) of the Securities Act;

 

(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

 

(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 (i) and (ii) 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.

 

(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.

 

(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.

 

2.             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.

 

3.             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 Securities and Exchange 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.

 

3



 

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 Dublin, Ireland, on December 12, 2017.

 

 

NABRIVA THERAPEUTICS PLC

 

 

 

 

By:

/s/ Colin Broom

 

 

Colin Broom

 

 

Chief Executive Officer

 

POWER OF ATTORNEY AND SIGNATURES

 

We, the undersigned officers and directors of Nabriva Therapeutics plc, hereby severally constitute and appoint Colin Broom and Gary Sender, and each of them singly, our true and lawful attorneys with full power to them, and 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 subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Nabriva Therapeutics plc to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.

 

Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Colin Broom

 

Chief Executive Officer and Director

 

December 12, 2017

Colin Broom

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Gary Sender

 

Chief Financial Officer

 

December 12, 2017

Gary Sender

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

 

 

Chairman of the Board

 

 

Daniel Burgess

 

 

 

 

 

 

 

 

 

/s/ Axel Bolte

 

Director

 

December 12, 2017

Axel Bolte

 

 

 

 

 

 

 

 

 

/s/ George H. Talbot

 

Director

 

December 12, 2017

George H. Talbot

 

 

 

 

 

 

 

 

 

/s/ Charles Rowland, Jr.

 

Director

 

December 12, 2017

Charles Rowland, Jr.

 

 

 

 

 



 

/s/ Stephen Webster

 

Director

 

December 12, 2017

Stephen Webster

 

 

 

 

 

 

 

 

 

/s/ Mark Corrigan

 

Director

 

December 12, 2017

Mark Corrigan

 

 

 

 

 

 

 

 

 

/s/ Carrie Bourdow

 

Director

 

December 12, 2017

Carrie Bourdow

 

 

 

 

 

 

NABRIVA THERAPEUTICS PLC
Authorized Representative in the United States

 

 

 

 

By:

/s/ Colin Broom

 

Name:

Colin Broom

 

Title:

Chief Executive Officer

 

 


Exhibit 5.1

 

A&L Goodbody Solicitors

Dublin

 

International Financial Services Centre

Belfast

 

25-28 North Wall Quay, Dublin 1

London

 

D01 H104

New York

 

T +353 1 649 2000

San Francisco

 

Dx: 29 Dublin | www.algoodbody.com

Palo Alto

 

Date

 

12 December 2017

 

 

 

Our Ref

 

RML/AH 01423776

 

Nabriva Therapeutics plc

25-28 North Wall Quay

IFSC
Dublin 1
Ireland

 

Nabriva Therapeutics plc (the Company)

 

Dear Sirs

 

We are acting as Irish counsel to the Company, a public limited company incorporated under the laws of Ireland (registration number 599588), in connection with the proposed registration by the Company of 3,480,999 ordinary shares of the Company, nominal value $0.01 per share (the Shares), pursuant to a Registration Statement on Form S-8 (the Registration Statement) to be filed by the Company with the U.S. Securities and Exchange Commission (SEC) under the Securities Act of 1933, as amended. The Shares are issuable under the Company’s 2017 Stock Incentive Plan, as adopted by the Company’s shareholders on September 15, 2017 (the Plan, including any amendments, restatements or sub-plans thereof).

 

In connection with this Opinion, we have reviewed copies of such corporate records of the Company as we have deemed necessary as a basis for the opinion hereinafter expressed. In rendering this opinion, we have examined and have assumed the truth and accuracy of the contents of such documents and certificates of officers of the Company and of public officials as to factual matters and have conducted such searches in public registries in Ireland as we have deemed necessary or appropriate for the purposes of this opinion but have made no independent investigation regarding such factual matters. In our examination we have assumed the truth and accuracy of the information contained in such documents, the genuineness of all the signatures, authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents.

 

We have further assumed:

 

1.              that as of today’s date and at each time Shares are issued, none of the resolutions and authorities of the shareholders or directors of the Company upon which we have relied have been varied, amended or revoked in any respect or have expired, and that the Shares will be issued in accordance with such resolutions and authorities and the terms of the Plan;

 

2.              that at each time Shares will be issued, the Company will then have sufficient authorised but unissued share capital to allow for the issue of such Shares;

 

3.              that any issue of Shares pursuant to the Plan will be paid up in consideration of the receipt by the Company prior to, or simultaneously with, the issue of the Shares of cash at least equal to the nominal value of such Shares and that where Shares are issued under a Plan without the requirement for the

 

PM Law · CE Gill · EM FitzGerald · JG Grennan · J Coman · PD White · VJ Power · LA Kennedy · SM Doggett · B McDermott · C Duffy · PV Maher · S O’Riordan · MP McKenna · KA Feeney M Sherlock · EP Conlon · E MacNeill · KP Allen · EA Roberts · C Rogers · G O’Toole · JN Kelly · N O’Sullivan · MJ Ward · AC Burke · D Widger · C Christle · S O’Croinin · JW Yarr · DR Baxter A McCarthy · JF Whelan · JB Somerville · MF Barr · AM Curran · A Roberts · M Dale · RM Moore · D Main · J Cahir · M Traynor · PM Murray · N Ryan · P Walker · K Furlong · PT Fahy · M Rasdale D. Inverarity · M Coghlan · DR Francis · A Casey · B Hosty · M O’Brien · K Killalea · L Mulleady · K Ryan · E Hurley · G Stanley · D Dagostino · E Keane · C Clarkin · R Grey · R. Lyons · J Sheehy · C Morrissey C McLoughlin · C Carroll · SE Carson · P Diggin · J Williams · A O’Beirne · MD Cole · G Conheady · J Dallas · SM Lynch · M McElhinney

 

Consultants: SW Haughey · Professor JCW Wylie · AF Browne · MA Greene · AV Fanagan · JA O’Farrell · IB Moore

 



 

payment of cash consideration by or on behalf of the relevant beneficiary, then such shares shall either be fully paid up by the Company or one of its subsidiaries within the time permitted by Section 1027 of the Companies Act 2014 of Ireland (the Act) (and, in the case of the Company or a subsidiary incorporated in Ireland, in a manner permitted by Section 82(6) and 1043 of the Act) or issued for consideration as set out in Section 1028(2) of the Act;

 

4.              that the filing of the Registration Statement with the SEC has been authorised by all necessary actions under all applicable laws other than Irish law;

 

5.              that when filed with the SEC, the Registration Statement will not differ in any material respect from the drafts that we have examined;

 

6.              that at the time of the grant by any committee of the board of directors of the Company, or any other duly authorised representative of the Company, of an award or other allotment and issue of a Share under the Plan, that such committee has been duly constituted and remains a duly constituted committee of the board of directors of the Company having the necessary powers and authorities to grant awards and issue the Shares and in the case of an authorised representative, that such person has the necessary powers and authorities to grant awards and issue the Shares; and

 

7.              the absence of fraud on the part of the Company and its respective officers, employees, agents and advisors.

 

Having made such further investigation and reviewed such other documents as we have considered requisite or desirable, subject to the foregoing and to the within qualifications and assumptions, and provided that the Registration Statement has become effective, we are of the opinion that the Shares have been duly authorised and, when issued (and, if required, paid for in either cash or services or otherwise) in accordance with the Plan and the options or other equity awards granted or to be granted thereunder, will be validly issued, fully paid and not subject to calls for any additional payments (“non-assessable”) (except for Shares issued pursuant to deferred payment arrangements, which shall be fully paid upon the satisfaction of such payment obligations).

 

In rendering this opinion we have confined ourselves to matters of Irish law. We express no opinion on any laws other than the laws of Ireland (and the interpretation thereof) in force as at the date hereof. This Opinion speaks only as of its date. We are not under any obligation to update this Opinion from time to time, nor to notify you of any change of law, facts or circumstances referred to or relied upon in the giving of this Opinion.

 

This Opinion is given solely for the benefit of the addressee of this Opinion and may not be relied upon by any other person without our prior written consent, provided, however, that it may be relied upon by persons entitled to rely on it pursuant to applicable provisions of US federal securities laws.

 

This Opinion is also strictly confined to the matters expressly stated herein and is not to be read as extending by implication or otherwise to any other matter.

 

We hereby consent to the filing of this Opinion with the SEC as an exhibit to the Registration Statement.

 

The Opinion is governed by and construed in accordance with the laws of Ireland.

 

2



 

Yours faithfully

 

/s/ A&L Goodbody

 

A&L Goodbody

 

3


Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 24, 2017 relating to the financial statements, which appears in Nabriva Therapeutics AG’s Annual Report on Form 10-K for the year ended December 31, 2016.

 

 

/s/ Alexandra Rester

 

Austrian Certified Public Accountant

 

 

PwC Wirtschaftsprüfung GmbH

 

Vienna, Austria

December 12, 2017