As filed with the Securities and Exchange Commission on January 23, 2017
Registration No. 333-215236
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
OXFORD IMMUNOTEC GLOBAL PLC
(Exact name of registrant as specified in its charter)
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England and Wales |
98-1133710 |
94C Innovation Drive, Milton Park
Abingdon OX14 4RZ, United Kingdom
+44 (0)1235 442780
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)
Peter Wrighton-Smith, Ph.D.
Chief Executive Officer
Oxford Immunotec Global PLC
94C Innovation Drive
Milton Park, Abingdon
OX14 4RZ
United Kingdom
Tel: +44 (0)1235 442780
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies To:
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Elizabeth M. Keiley Oxford Immunotec Global PLC 700 Nickerson Road, Suite 200 Marlborough, MA 01752 Telephone: (508) 281-5388 |
Keir D. Gumbs Eric W. Blanchard One CityCenter, 850 Tenth Street, NW Washington, DC 20001-4956 Telephone: (202) 662-5500 |
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
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, other than securities offered only in connection with dividend or interest reinvestment plans, 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 of 1933, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act of 1933, 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.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act of 1933, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act of 1933, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Securities Exchange Act of 1934.
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☐ Large Accelerated Filer |
☒ Accelerated Filer |
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☐ Non-Accelerated Filer (Do not check if a smaller reporting company) |
☐ Smaller Reporting Company (Do not check if a smaller reporting company) |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-215236) of Oxford Immunotec Global PLC (this “Amendment”) is being filed solely to include an additional opinion of Covington & Burling LLP, filed herewith as Exhibit 5.2. This Amendment does not modify or amend any provision of the base prospectus or sales agreement prospectus constituting Part I or the other Items of Part II of the registration statement. Accordingly, the base prospectus and the sales agreement prospectus have not been included in this Amendment.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The following is a statement setting forth the estimated expenses of the Company in connection with the offering described in this registration statement.
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Amount to be paid |
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SEC registration fee |
$ | 17,385 | ||
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Printing expenses |
(1 |
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Legal fees |
(1 |
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Accounting fees |
(1 |
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Miscellaneous |
(1 |
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Total |
$ | (1 |
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(1) |
These fees are calculated based on the number of issuances and the amount of securities offered and accordingly cannot be estimated at this time. |
ITEM 15. Indemnification of Directors and Officers
Our articles of association provide that, subject to the Companies Act 2006, we shall indemnify, out of our assets, any director of the Company or any associated company against all losses, liabilities and expenditures which he or she may sustain or incur in the execution of the duties of his or her office or otherwise in relation thereto.
The relevant provisions under the Companies Act 2006 are Sections 205, 206, 232, 233, 234, 235, 236, 237, 238 and 1157.
Section 205 provides that a company can provide a director with the funds to meet expenditures incurred or to be incurred in defending any criminal or civil proceedings or in connection with any application under sections 661(3) and 661(4) (acquisition of shares by innocent nominee) or section 1157 (described below). Such financial assistance must be repaid if the director is convicted, judgment is found against such director or the court refuses to grant the relief on the application.
Section 206 provides that a company can provide a director with the funds to meet expenditures incurred or to be incurred by him or her in defending in an investigation by a regulatory authority, or against action proposed to be taken by a regulatory authority, in connection with any alleged negligence, default, breach of duty or breach of trust by him or her in relation to the company or an associated company.
Section 232 provides that any provision to exempt to any extent a director from liability from negligence, default, breach of duty or trust by him or her in relation to the company is void. Any provision by which a company directly or indirectly provides (to any extent) an indemnity for a director of the company or an associated company against any such liability is also void unless it is a qualifying third party indemnity provision.
Section 233 permits liability insurance, commonly known as directors’ and officers’ liability insurance, purchased and maintained by a company against liability for negligence, default, breach of duty or breach of trust in relation to the company.
Pursuant to Section 234, an indemnity is a qualifying third party indemnity as long as it does not provide: (i) any indemnity against any liability incurred by the director to the company or to any associated company; (ii) any indemnity against any liability incurred by the director to pay a fine imposed in criminal proceedings or a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature; and (iii) any indemnity against any liability incurred by the director in defending criminal proceedings in which he or she is convicted, civil proceedings brought by the company or an associated company in which judgment is given against such director or where the court refuses to grant such director relief under an application under sections 661(3) and 661(4) (acquisition of shares by innocent nominee) or its power under section 1157 (described below).
Section 235 allows a company to provide an indemnity to a director if the company is a trustee of an occupational pension scheme, with such indemnity to protect against liability incurred in connection with the company’s activities as trustee of the scheme.
Any indemnity provided under Section 234 or Section 235 in force for the benefit of one or more directors of the company or an associated company must be disclosed in the directors’ annual report in accordance with Section 236 and copies of such indemnification provisions made available for inspection in accordance with Section 237 (and every shareholder has a right to inspect and request such copies under Section 238).
Section 1157 provides that in proceedings against an officer of a company for negligence, default, breach of duty or breach of trust, the court may relieve such officer from liability if it appears to the court that such officer may be liable but acted honestly and reasonably and that having regard to all the circumstances of the case, such officer ought fairly to be excused. Further, an officer who has reason to apprehend that a claim of negligence, default, breach of duty or breach of trust will or might be made against him or her, such officer may apply to the court for relief, and the court will have the same power to relieve such officer as it would if the proceedings had actually been brought.
A court has wide discretion in granting relief, and may authorize civil proceedings to be brought in the name of the company by a shareholder on terms that the court directs. Except in these limited circumstances, English law does not generally permit class action lawsuits by shareholders on behalf of the company or on behalf of other shareholders.
We have obtained and expect to continue to maintain insurance policies under which our directors and officers are insured, within the limits and subject to the limitations of those policies, against certain expenses in connection with the defense of, and certain liabilities that might be imposed as a result of, actions, suits or proceedings to which they are parties by reason of being or having been directors or officers. The coverage provided by these policies may apply whether or not we would have the power to indemnify such person against such liability under the provisions of English law.
In the underwriting agreement, if any, the underwriters may agree to indemnify, under certain conditions, us, members of our Board of Directors, members of management and persons who control us within the meaning of the Securities Act, against certain liabilities.
ITEM 16. Exhibits
A list of exhibits filed with this Amendment No. 1 to the Registration Statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
ITEM 17. Undertakings
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a) |
The Company hereby undertakes: |
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1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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i. |
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
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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) that, 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 the 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 a prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
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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), (a)(1)(ii) and (a)(l)(iii) 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 Company pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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2) |
That, for the purpose of determining any liability under the Securities Act of 1933, 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. |
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3) |
To remove from registration by means of a post-effective amendment any of the securities being registered that remain unsold at the termination of the offering. |
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4) |
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
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i. |
Each prospectus filed by the Company pursuant to Rule 424(b)(3) shall be deemed part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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ii. |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
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5) |
That, for the purpose of determining liability of the Company under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: |
The Company undertakes that in a primary offering of securities of the Company pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Company will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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i. |
Any preliminary prospectus or prospectus of the Company relating to the offering required to be filed pursuant to Rule 424; |
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ii. |
Any free writing prospectus relating to the offering prepared by or on behalf of the Company or used or referred to by the Company; |
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iii. |
The portion of any other free writing prospectus relating to the offering containing material information about the Company or its securities provided by or on behalf of the Company; and |
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iv. |
Any other communication that is an offer in the offering made by the Company to the purchaser. |
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b) |
The Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new securities 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. |
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c) |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company will, unless in the opinion of the Company’s 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 of 1933 and will be governed by the final adjudication of such issue. |
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d) |
The Company hereby undertakes that: |
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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. |
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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. |
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-3 and has duly caused this Amendment No. 1 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized on this 23rd day of January, 2017.
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OXFORD IMMUNOTEC GLOBAL PLC | |
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By: |
/s/ Peter Wrighton-Smith, Ph.D. |
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Peter Wrighton-Smith, Ph.D. |
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Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons on January 23, 2017 in the capacities indicated below.
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Signature |
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Title |
Date |
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/s/ Peter Wrighton-Smith, Ph.D. |
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Chief Executive Officer and Director |
January 23, 2017 |
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Peter Wrighton-Smith, Ph.D. |
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(Principal Executive Officer) |
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/s/ Richard M. Altieri |
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Chief Financial Officer |
January 23, 2017 |
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Richard M. Altieri |
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(Principal Financial and Accounting Officer) |
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/s/ * |
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Chairman of the Board of Directors |
January 23, 2017 |
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Richard A. Sandberg |
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/s/ * |
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Director |
January 23, 2017 |
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Ronald Andrews Jr. |
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/s/ * |
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Director |
January 23, 2017 |
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Patrick J. Balthrop Sr. |
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/s/ * |
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Director |
January 23, 2017 |
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Patricia Randall |
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/s/ * |
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Director |
January 23, 2017 |
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Herm Rosenman |
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/s/ * |
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Director |
January 23, 2017 |
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Stephen L. Spotts |
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/s/ * |
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Director |
January 23, 2017 |
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James R. Tobin |
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/s/ * |
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Director |
January 23, 2017 |
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A. Scott Walton |
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/s/ Richard M. Altieri |
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Authorized Representative in the United States |
January 23, 2017 |
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Richard M. Altieri |
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* |
By: |
/s/ Richard M. Altieri Richard M. Altieri, Attorney-in-Fact |
INDEX TO EXHIBITS
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Exhibit |
Description of exhibit |
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*1.1 |
Form of Underwriting Agreement. |
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**1.2 |
Sales Agreement, dated as of December 21, 2016, between Oxford Immunotec Global PLC and Cowen and Company, LLC. |
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**4.1 |
Form of Ordinary Shares Certificate (Filed as Exhibit 3.2 to Amendment No. 5 to our Registration Statement on Form S-1 filed on November 8, 2013 (File No. 333-191737), and incorporated herein by reference.) |
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**4.2 |
Warrant to Purchase Ordinary Shares, issued to Comerica Bank (Filed as Exhibit 4.3 to our Annual Report on Form 10-K filed on March 27, 2014, and incorporated herein by reference.) |
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**4.3 |
Warrant to Purchase Ordinary Shares, issued to Square 1 Bank (Filed as Exhibit 4.4 to our Annual Report on Form 10-K filed on March 27, 2014, and incorporated herein by reference.) |
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*4.4 |
Form of Certificate of Designation of Preferred Ordinary Shares. |
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*4.5 |
Form of Preferred Ordinary Share Certificate. |
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**4.6 |
Form of Indenture between Registrant and one or more trustees to be named (including form of note). |
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*4.7 |
Form of Ordinary Share Warrant Agreement and Warrant Certificate. |
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*4.8 |
Form of Preferred Ordinary Share Warrant Agreement and Warrant Certificate. |
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*4.9 |
Form of Debt Securities Warrant Agreement and Warrant Certificate. |
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*4.10 |
Form of Ordinary Share Purchase Unit or Contract Agreement. |
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*4.11 |
Form of Deposit Agreement relating to the depositary shares (including form of depositary receipt). |
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*4.12 |
Form of Unit Certificate. |
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**5.1 |
Opinion of Covington & Burling LLP relating to the Ordinary Shares, Preferred Ordinary Shares, Depositary Shares, Warrants and Units. |
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5.2 |
Opinion of Covington & Burling LLP related to the Debt Securities. |
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**23.1 |
Consent of Ernst & Young LLP |
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**23.2 |
Consent of Covington & Burling LLP (included in Exhibit 5.1). |
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23.3 |
Consent of Covington & Burling LLP (included in Exhibit 5.2). |
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**24.1 |
Power of Attorney executed by Directors and Officers (included on signature page to the registration statement) |
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*25.1 |
Statement of Eligibility of Trustee on Form T-1 under the Indenture. (To be filed as an exhibit to a Current Report on Form 8-K or pursuant to Rule 305(b)(2) of the Trust Indenture Act and incorporated herein by reference). |
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To be filed by amendment or incorporated by reference in connection with the offering of any securities, as appropriate. |
| ** | Previously filed. |
II-6