As filed with the Securities and Exchange Commission on May 7, 2021
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
ERYTECH Pharma S.A.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of
incorporation or organization)
60 Avenue Rockefeller
69008 Lyon France
(Address of principal executive offices) (Zip code)
2020 Stock Option Plan
2020 AGA (Free Share) Plan
2020 BSA Subscription Plan
(Full title of the plans)
ERYTECH Pharma Inc.
One Main Street, Suite 300
Cambridge, Massachusetts 02142
+1 857 706 1585
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
Marc A. Recht
Brian F. Leaf
Courtney T. Thorne
500 Boylston Street
Boston, Massachusetts 02116
+1 617 937 6000
Gide Loyrette Nouel A.A.R.P.I.
15 rue de Laborde
75008 Paris France
+33 1 40 75 00 00
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||☐||Accelerated filer||☒|
|Non-accelerated filer||☐||Smaller reporting company||☐|
|Emerging growth company||☒|
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. ☒
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered(1)
Ordinary Shares, 0.10 nominal value per share
Ordinary Shares, 0.10 nominal value per share
Ordinary Shares, 0.10 nominal value per share
Options and Warrants and Rights to Purchase or Acquire Ordinary Shares
Aggregate Registration Fee
These ordinary shares of ERYTECH Pharma S.A. (the Registrant), 0.10 nominal value per share (Ordinary Shares), may be represented by the Registrants American Depositary Shares (ADSs), each of which represents one Ordinary Share. The Registrants ADSs issuable upon deposit of the Ordinary Shares registered hereby were registered pursuant to a separate registration statement on Form F-6 (File No. 333-201279), as amended.
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional Ordinary Shares of the Registrant that become issuable under the Registrants 2020 Stock Option Plan, 2020 AGA (Free Share) Plan and 2020 BSA Subscription Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrants outstanding Ordinary Shares.
Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) of the Securities Act on the basis of the weighted average exercise price of $8.11 per ordinary share (rounded up to the nearest cent), expressed in U.S. dollars based on the European Central Bank exchange rate on May 5, 2021 (1.00=$1.2005).
For those options or warrants outstanding under the Registrants 2020 Stock Option Plan or 2020 BSA Subscription Plan with an exercise price denominated in euros, such exercise price is expressed in U.S. dollars based on the European Central Bank exchange rate on May 5, 2021 (1.00=$1.2005).
Represents ordinary shares issuable upon settlement of Attributions Gratuites dActions (free shares or AGAs) granted by the Registrant.
Estimated in accordance with Rule 457(c) and Rule 457(h) of the Securities Act solely for purposes of calculating the registration fee, and is based upon the price of $7.13 per ADS, which was the average of the high and low prices of the Registrants ADSs as reported on the Nasdaq Global Select Market for May 5, 2021 (rounded up to the nearest cent).
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Part I of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participant in the plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|Item 3.|| |
Incorporation of Documents By Reference.
The following documents, which have been filed with the U.S. Securities and Exchange Commission (the Commission) by ERYTECH Pharma S.A. (the Registrant), are hereby incorporated by reference into this Registration Statement:
(a) The Registrants Annual Report on Form 20-F (File No. 001-38281) for the fiscal year ended December 31, 2020, filed with the Commission on March 8, 2021;
(b) the Registrants Reports on Form 6-K (File No. 001-38281) furnished to the Commission on January 15, 2021 (including Exhibit 99.1 thereto), January 27, 2021 (not including Exhibit 99.1 thereto), February 8, 2021 (including Exhibit 99.1 thereto), March 9, 2021 (not including Exhibit 99,1 thereto), April 19, 2021 (including Exhibit 99.1 thereto), April 21, 2021 (including Exhibit 99.1 thereto), May 3, 2021 (not including Exhibit 99.1 thereto; including Exhibit 99.2 thereto), May 3, 2021 (including all exhibits thereto) and May 7, 2021 (including exhibit 99.1 thereto); and
(c) the descriptions of the Registrants American Depositary Shares and Ordinary Shares contained in the Registrants Registration Statement on Form 8-A filed with the Commission on November 7, 2017 (File No. 001-38281) under the Securities Exchange Act of 1934, as amended (the Exchange Act), including any amendment or report filed for the purpose of updating such description.
All other reports and documents subsequently filed by the Registrant 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 such securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such reports and documents.
Any statement contained in this Registration Statement, in an amendment hereto or in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed amendment to this Registration Statement or in any document that 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.
Under no circumstances shall any information subsequently furnished on Form 6-K be deemed incorporated herein by reference unless such Form 6-K expressly provides to the contrary.
|Item 4.|| |
Description of Securities.
|Item 5.|| |
Interests of Named Experts and Counsel.
|Item 6.|| |
Indemnification of Directors and Officers.
Under French law, provisions of bylaws that limit the liability of directors are prohibited. However, French law allows sociétés anonymes to contract for and maintain liability insurance against civil liabilities incurred by any of their directors and officers involved in a third-party action, provided that they acted in good faith and within their capacities as directors or officers of the company. Criminal liability cannot be indemnified under French law, whether directly by the company or through liability insurance.
The Registrant has obtained directors and officers liability insurance for its directors and officers, which includes coverage against liability under the Securities Act. The Registrant has entered into agreements with its directors and executive officers to provide contractual indemnification. With certain exceptions and subject to limitations on indemnification under French law, these agreements provide for indemnification for damages and expenses including, among other things, attorneys fees, judgments and settlement amounts incurred by any of these individuals in any action or proceeding arising out of his or her actions in that capacity.
These agreements may discourage shareholders from bringing a lawsuit against the Registrants directors and executive officers for breach of their fiduciary duty. These provisions also may have the effect of reducing the likelihood of derivative litigation against directors and executive officers, even though such an action, if successful, might otherwise benefit the Registrant and its shareholders. Furthermore, a shareholders investment may be adversely affected to the extent the Registrant pays the costs of settlement and damage awards against directors and officers pursuant to these insurance agreements.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant, 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.
|Item 7.|| |
Exemption From Registration Claimed.
|Item 8.|| |
|4.1||Bylaws (statuts) of the Registrant (English translation)||20-F||001-38281||1.1||March 8, 2021|
|4.2||Amended and Restated Deposit Agreement.||F-3||333-248953||4.2||September 21, 2020|
|4.3||Form of American Depositary Receipt (included in Exhibit 4.2).||F-3||333-248953||4.2||September 21, 2020|
|5.1+||Opinion of Gide Loyrette Nouel A.A.R.P.I.|
|23.1+||Consent of KPMG S.A., independent registered public accounting firm.|
|23.2+||Consent of Gide Loyrette Nouel A.A.R.P.I. (included in Exhibit 5.1).|
|24.1+||Power of Attorney (included on the signature page of this Form S-8).|
|99.1||Summary of BSA Plans||F-1||333-220867||10.12||October 6, 2017|
|99.2||2020 Stock Option Plan||20-F||001-38281||4.27||March 8, 2021|
|99.3||2020 Free Share Plan (English translation)||20-F||001-38281||4.28||March 8, 2021|
|99.4||Terms and Conditions of 2020 BSA Subscription Plan||20-F||001-38281||4.29||March 8, 2021|
|Item 9.|| |
(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:
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective 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 (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic 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; 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 Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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.
(h) 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 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.
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 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 Lyon, France, on May 7, 2021.
|ERYTECH Pharma S.A.|
|Title:||Chief Executive Officer|
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Gil Beyen and Eric Soyer, and each or any one of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the U.S. Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
|Chief Executive Officer and Director||May 7, 2021|
|Gil Beyen||(Principal Executive Officer)|
Chief Financial Officer, Chief Operating Officer and Deputy General Manager
(Principal Financial Officer and Principal Accounting Officer)
|May 7, 2021|
|Chairman of the Board of Directors||May 7, 2021|
|Jean-Paul Kress, M.D.|
|Director||May 7, 2021|
|Director||May 7, 2021|
Philippe Archinard, Ph.D.
|Director||May 7, 2021|
Luc Dochez, Pharm.D.
|Director||May 7, 2021|
|Martine Ortin George, M.D.|
|Director||May 7, 2021|
|May 7, 2021|
SIGNATURE OF AUTHORIZED U.S. REPRESENTATIVE
Pursuant to the Securities Act of 1933, as amended, the undersigned, the duly authorized representative in the United States of ERYTECH Pharma S.A., has signed this registration statement on May 7, 2021.
|ERYTECH PHARMA, INC.|
May 7, 2021
ERYTECH Pharma S.A.
60 avenue Rockefeller
Re: Registration Statement on Form S-8 of ERYTECH Pharma S.A.
Ladies and Gentlemen:
We are acting as special French counsel for ERYTECH Pharma S.A. (the Company), a French société anonyme, in connection with the filing of the Registration Statement on Form S-8 (the Registration Statement) relating to the registration of up to 873,281 ordinary shares of the Company, par value 0.10 per share (the Shares) pursuant to the Companys 2020 Stock Option Plan, 2020 AGA (Free Share) Plan and 2020 BSA Subscription Plan (collectively, the Plans).
In connection with the opinion expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinion. We have assumed the genuineness and authenticity of all documents submitted to us as originals and the conformity to originals of all documents submitted to us as copies thereof. In rendering this opinion, as to certain factual matters, we have, with your consent, relied upon oral and written representations of officers of the Company with respect to the accuracy of the factual matters addressed in such representations. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that the Shares that may be issued pursuant to the Plans have been duly authorized by the relevant extraordinary general meetings of the Companys shareholders and, when issued in accordance with the respective Plans and against payment of due consideration therefor (to the extent applicable), will be validly issued, fully paid and non-assessable.
The opinion expressed herein is limited to the laws of France as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction. We have assumed that the Company will take no action inconsistent with the Plans and the resolutions authorizing the Company to issue the Shares. We have also assumed that (1) the resolutions authorizing the Company to issue the Shares pursuant to the respective Plans as adopted by the extraordinary shareholders meeting, the Board of Directors (the Board) and/or the chief executive officer (président directeur géneral) of the Company have not been or will not be amended or superseded, have been or will be duly passed at duly convened and held meetings and, with respect to the Board, of duly appointed members (2) the resolutions authorizing the Company to issue the Shares pursuant to the respective Plans as adopted by the extraordinary shareholders meeting, the Board and/or the chief executive officer (président directeur géneral) of the Company and the applicable award agreements have been or will be in full force and effect on the date of such awards and (3) for any future awards under the Plans, such future awards will be approved by the Board and/or the chief executive officer (président directeur géneral) of the Company in accordance with applicable law and with the terms of the relevant Plan. We do not undertake or accept any obligation to update this opinion to reflect subsequent changes in French law or factual matters arising after the date of effectiveness of this Registration Statement.
|GIDE LOYRETTE NOUEL A.A.R.P.I.|
|15 rue de Laborde - 75008 Paris | tél. +33 (0)1 40 75 60 00 | firstname.lastname@example.org - gide.com | Palais T03|
This opinion is subject to any limitation arising from ad hoc mandate (mandat ad hoc), conciliation (conciliation), accelerated safeguard (sauvegarde accélérée), accelerated financial safeguard (sauvegarde financière accélérée), safeguard (sauvegarde), judicial reorganisation (redressement judiciaire), judicial liquidation (liquidation judiciaire) (including a provision that creditors proofs of debts denominated in foreign currencies would be converted into euros at the rate applicable on the date of the court decision instituting the accelerated safeguard (sauvegarde accélérée), the accelerated financial safeguard (sauvegarde financière accélérée), the safeguard (sauvegarde), the judicial reorganisation (redressement judiciaire) and the judicial liquidation (liquidation judiciaire) proceedings), insolvency, moratorium and other laws of general application affecting the rights of creditors.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement filed by the Company to effect registration of the Shares to be issued and sold pursuant to each Plan under the Securities Act of 1933, as amended (the Act). In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the U.S. Securities and Exchange Commission promulgated thereunder.
Very truly yours,
/s/ Gide Loyrette Nouel A.A.R.P.I.
Proof KPMG Audit
51 rue de Saint-Cyr
69338 Lyon Cedex 9
Téléphone : +33 (0)4 37 64 76 00
Télécopie : +33 (0)4 37 64 76 09
Site internet : www.kpmg.fr
Erytech Pharma S.A.
Head office: 60 avenue Rockefeller - 69008 - Lyon
Consent of independent Registered Public Accounting Firm
The Board of Directors,
We consent to the incorporation by reference in this registration statement on Form S-8 of ERYTECH Pharma S.A. of our report dated March 8, 2021, with respect to the consolidated statements of financial position of ERYTECH Pharma S.A. and its subsidiary as of December 31, 2020, 2019 and 2018, and the related consolidated statements of income (loss), comprehensive income (loss), changes in shareholders equity, and cash flows for each of the years in the three-year period ended December 31, 2020, and the related notes, which report appears in the Annual Report on Form 20-F of ERYTECH Pharma S.A for the year ended December 31, 2020 filed with the US. Securities and Exchange Commission on March 8, 2021.
Our report dated March 8, 2021 refers to the change in ERYTECH Pharma S.A.s method of accounting for leases on January 1, 2019, due to the adoption of IFRS 16 Leases.
Lyon, May 7, 2021
A division of KPMG S.A.
/s/ Stéphane Devin
société française membre du réseau KPMG
constitué de cabinets indépendants adhérents de
KPMG Internatinal Cooperative, une entité de droit suisse. Error! Unknown document property name.
Société anonyme dexpertise
comptable et de commissariat
aux comptes à directoire et
conseil de surveillance.
Inscrite au Tableau de lOrdre
à Paris sous le n° 14-30080101
et à la Compagnie Régionale
des Commissaires aux Comptes
Siège social :
2 avenue Gambetta
92066 Paris la Défense Cedex
Capital : 5 497 100 .
Code APE 6920Z
775 726 417 R.C.S. Nanterre
TVA Union Européenne
FR 77 775 726 417