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As filed with the Securities and Exchange Commission on July 25, 2024 |
| | Registration No. 333-209854 |
| | Registration No. 333-217619 |
| | Registration No. 333-224606 |
| | Registration No. 333-232896 |
| | Registration No. 333-236862 |
| | Registration No. 333-253499 |
| | Registration No. 333-262965 |
| | Registration No. 333-269926 |
| | Registration No. 333-277240 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST EFFECTIVE AMENDMENT NO. 1 TO:
FORM S-8
| | |
| Registration No. 333-209854 |
| Registration No. 333-217619 |
| Registration No. 333-224606 |
| Registration No. 333-232896 |
| Registration No. 333-236862 |
| Registration No. 333-253499 |
| Registration No. 333-262965 |
| Registration No. 333-269926 |
| Registration No. 333-277240 |
Under
The Securities Act of 1933
NovoCure Limited
(Exact name of registrant as specified in its charter)
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Jersey (State or other jurisdiction of incorporation or organization) | 98-1057807 (I.R.S. Employer Identification Number) |
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NovoCure Limited
Second Floor, No.4 The Forum
Grenville Street
St. Helier, Jersey JE2 4UF
(Address, including zip Code, of Principal Executive Offices)
NovoCure Limited 2015 Omnibus Incentive Plan
NovoCure Limited 2024 Omnibus Incentive Plan
(Full title of each plan)
Ashley Cordova
Chief Financial Officer
NovoCure Limited
c/o Novocure Inc.
1150 Liberty Ridge Drive
Suite 115
Wayne, PA 19087
(212) 767-7530
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to :
Pran Jha
Sidley Austin LLP
One South Dearborn Street
Chicago, Illinois 60603
(312) 853-7000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a 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.
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| Large Accelerated Filer | ☒ | Accelerated Filer | ☐ |
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| Non-Accelerated Filer | ☐ | Smaller Reporting Company | ☐ |
| | Emerging Growth Company | ☐ |
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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. ☐
EXPLANATORY NOTE
On June 5, 2024, (the “Effective Date”), the shareholders of NovoCure Limited (the “Registrant”) approved the NovoCure Limited 2024 Omnibus Incentive Plan (the “2024 Plan”). The total number of ordinary shares of the Registrant that may be granted under the 2024 Plan consists of (i) up to 9,000,000 ordinary shares (reduced by any ordinary shares subject to awards granted under the NovoCure Limited 2015 Omnibus Incentive Plan (the “2015 Plan”) after April 2, 2024), all of which were available under the 2015 Plan and which ceased to be available for future awards under the 2024 Plan as of the Effective Date, and (ii) the number of undelivered shares subject to outstanding awards under the 2015 Plan that become available for future awards under the 2024 Plan as provided for in the 2024 Plan (the shares described in (i) and (ii), the “Prior Plan Shares”).
In accordance with Item 512(a)(1)(iii) of Regulation S-K and Compliance and Disclosure Interpretation 126.43, this Post-Effective Amendment No. 1 (the “Post-Effective Amendment”) to Registration Statements on Form S-8 (File Nos. 333-209854, 333-217619, 333-224606, 333-232896, 333-236862, 333-253499, 333-262965, 333-269926 and 333-277240) that were filed with the Securities and Exchange Commission (the “Commission”) by the Registrant on March 1, 2016, May 3, 2017, May 1, 2018, July 30, 2019, March 3, 2020, February 25, 2021, February 24, 2022, February 23, 2023 and February 22, 2024, respectively, covering a total of 47,743,427 ordinary shares issuable under the 2015 Plan is hereby filed to cover the issuance of the Prior Plan Shares pursuant to the 2024 Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which previously have been filed with the Commission, are hereby incorporated by reference into this Registration Statement:
(a) The Registrant’s Annual Report on Form 10-K (including those portions of the Company’s definitive proxy statement relating to its 2024 annual meeting of stockholders that are incorporated by reference in the Company’s Annual Report on Form 10-K) for the year ended December 31, 2023, filed with the Commission on February 22, 2024;
(c) The Company’s Current Reports on Form 8-K, filed with the Commission on January 4, 2024 and June 10, 2024 (other than the portions of these documents deemed furnished to, rather than filed with, the Commission); and
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all offerings of securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to be part hereof from the date of 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 purposes of this Registration Statement to the extent that a statement contained herein or in any 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.
In no event, however, will any information that the Registrant discloses under Item 2.02 and Item 7.01 of any Current Report on Form 8-K that the Registrant may from time to time furnish to the Commission be incorporated by reference into, or otherwise become a part of, this Registration Statement. Any statement contained in a document that is deemed to be incorporated by reference or deemed to be part of this Registration Statement after the most recent effective date may modify or replace existing statements contained in this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Registrant has entered into indemnification agreements with each of its directors to indemnify them against certain liabilities and expenses arising from their being a director to the maximum extent permitted by Jersey law. Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended (the “Securities Act”) may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Subject to the Companies (Jersey) Law 1991 (the "Jersey Companies Law"), the Registrant’s Amended and Restated Articles of Association permit the Registrant to indemnify any director against any liability, to purchase and maintain insurance against any liability for any director and to provide any director with funds (whether by loan or otherwise) to meet expenditures incurred or to be incurred by him in defending any criminal, regulatory or civil proceedings or in connection with an application for relief (or to enable any such director to avoid incurring such expenditure).
However, Article 77 of the Jersey Companies Law limits the ability of a Jersey company to exempt or indemnify a director from any liability arising from acting as a director. It provides that neither a company (or any of its subsidiaries) nor any other person for some benefit conferred or detriment suffered directly or indirectly by the company may exempt or indemnify any director from, or against, any liability incurred by him as a result of being a director of the company except where the company exempts or indemnifies him against:
(a) any liabilities incurred in defending any proceedings (whether civil or criminal):
i.in which judgment is given in his or her favor or he or she is acquitted;
ii.which are discontinued otherwise than for some benefit conferred by him or her or on his or her behalf or some detriment suffered by him or her; or
iii.which are settled on terms which include such benefit or detriment and, in the opinion of a majority of the directors of the company (excluding any director who conferred such benefit or on whose behalf such benefit was conferred or who suffered such detriment), he or she was substantially successful on the merits in his or her resistance to the proceedings; or
(b) any liability incurred otherwise than to the company if he or she acted in good faith with a view to the best interests of the company;
(c) any liability incurred in connection with an application made under Article 212 of the Jersey Companies Law in which relief is granted to him or her by the court; or
(d) any liability against which the company normally maintains insurance for persons other than directors.
Article 77 of the Jersey Companies Law permits a company to purchase and maintain directors’ and officers’ insurance and the Registrant maintains a directors’ and officers’ liability insurance policy for the benefit of its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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Exhibit
Number | | | | Incorporated by Reference | | Filed
Herewith |
| Exhibit Description | | Form | | Date | | Number | |
| 4.1 | | | | S-1/A | | 9/21/2015 | | 3.3 | | |
| 4.2 | | | | 8-K | | 6/10/2022 | | 3.1 | | |
| 5.1 | | | | | | | | | | X |
| 10.1 | | | | S-1/A | | 9/21/2015 | | 10.5 | | |
| 10.2 | | | | 8-K | | 6/10/2024 | | 10.1 | | |
| 23.1 | | Consent of Ogier (included in Exhibit 5.1) | | | | | | | | X |
| 23.2 | | | | | | | | | | X |
| 24.1 | | Power of Attorney (included in signature page) | | | | | | | | X |
Item 9. Undertakings.
(a) The 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 (a)(i) and (a)(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.
(b) The 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.
(c) 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.
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 Wayne, Commonwealth of Pennsylvania, on July 25, 2024.
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| NOVOCURE LIMITED |
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| By: | /s/ Ashley Cordova |
| | Ashley Cordova |
| | Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby severally constitutes and appoints Ashley Cordova and Steven Robbins, and each of them individually, with full power of substitution and resubstitution, his or her true and lawful attorney-in fact and agent, with full powers to each of them to sign for such persons below, in his or her name and in the capacities indicated below, and any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto, with the Commission, and granting unto said attorneys, 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 each of such person below might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, may lawfully do or cause to be done by virtue of this Power of Attorney. This power of attorney may be executed in counterparts.
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 date indicated.
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| Signatures | | Title | | Date |
By: | /s/ Asaf Danziger | | Chief Executive Officer and Director (Principal Executive Officer) | | July 25, 2024 |
Asaf Danziger
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By: | /s/ Ashley Cordova | | Chief Financial Officer (Principal Financial and Accounting Officer) and Authorized Representative in the United States | | July 25, 2024 |
Ashley Cordova
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| By: | /s/ William F. Doyle | | Executive Chairman and Director | | July 25, 2024 |
William F. Doyle
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| By: | /s/ Jeryl L. Hilleman | | Director | | July 25, 2024 |
Jeryl L. Hilleman
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| By: | /s/ David T. Hung | | Director | | July 25, 2024 |
David T. Hung
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By: | /s/ Kinyip Gabriel Leung | | Director | | July 25, 2024 |
Kinyip Gabriel Leung
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| By: | /s/ Martin J. Madden | | Director | | July 25, 2024 |
Martin J. Madden
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| By: | /s/ Allyson Ocean | | Director | | July 25, 2024 |
| Allyson Ocean | | |
| By: | /s/ Timothy J. Scannell | | Director | | July 25, 2024 |
Timothy J. Scannell
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| By: | /s/ Kristin Stafford | | Director | | July 25, 2024 |
| Kristin Stafford | | |
| By: | /s/ William A. Vernon | | Director | | July 25, 2024 |
William A. Vernon | | |
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NovoCure Limited Second Floor No. 4 The Forum Grenville Street St Helier Jersey JE2 4UF
| | D: +44 1534 514276 |
| james.fox@ogier.com |
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| | 25 July 2024 |
Dear Sirs
NovoCure Limited (the Company) - Post-Effective Amendment to Registration Statements Related to the Registration of Shares under the US Securities Act of 1933, as amended (the Securities Act) – 2024 Omnibus Incentive Plan (the 2024 Plan)
1.Background
1.1 In connection with the Post-Effective Amendment No. 1 to Registration Statements on Form S-8 (the Post-Effective Amendment) filed by the Company today with the Securities and Exchange Commission pursuant to the Securities Act, amending the registration statements set forth therein, (the Prior Registration Statements) you have asked us to furnish our opinion as to the legality of the securities being registered under the Prior Registration Statements, as amended by the Post-Effective Amendment. The Post-Effective Amendment relates to the registration by the Company under the Securities Act of the total number of ordinary shares of the Company that may be granted under the Company's 2024 Plan, consisting of:
(a)up to 9,000,000 ordinary shares (reduced by any ordinary shares subject to awards granted under the Company's 2015 Omnibus Incentive Plan (the 2015 Plan) after April 2, 2024), all of which were available under the 2015 Plan and which ceased to be available for future awards under the 2024 Plan as of the effective date thereof (being 5 June 2024); and
(b)the number of undelivered ordinary shares subject to outstanding awards under the 2015 Plan that become available for future awards under the 2024 Plan, as provided for in the 2024 Plan,
the ordinary shares described in (a) and (b) collectively referred to herein as the Shares.
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Ogier (Jersey) LLP
44 Esplanade
St Helier
Jersey JE4 9W
T +44 1534 514000
F +44 1534 514444
ogier.com | Partners Raulin Amy James Angus James Campbell Alexander Curry Richard Daggett Simon Dinning Katrina Edge Damian Evans James Fox | Josephine Howe
Jonathan Hughes
Niamh Lalor
Kate McCaffrey
Edward Mackereth
Bruce MacNeil
Katharine Marshall
Matt McManus
Rebecca McNulty | Steven Meiklejohn
Oliver Passmore
Nathan Powell
Sophie Reguengo
Oliver Richardson
Bruce Scott
Henry Wickham
Nicholas Williams
|
| Registered as a limited liability partnership in Jersey. Registered number 99. | | | |
1.2 In this opinion, "non-assessable" means, in relation to a Share, that the consideration for which the Company agreed to issue that Share has been paid in full to the Company, so that no further sum is payable to the Company by any holder of that Share in respect of the purchase price of that Share.
2.Documents examined
2.1 For the purposes of giving this opinion, we have examined and relied upon such documents as we deem appropriate, including the following documents:
(a)the Post-Effective Amendment;
(b)the Company’s memorandum and articles of association in force as at the date hereof;
(c)the 2024 Plan;
(d)a true copy of the unanimous written resolutions of the board of directors of the Company dated 4 April 2024, by which the directors (among other things) approved or ratified the 2024 Plan;
(e)the Company’s certificate of incorporation;
(f)a consent to issue shares dated 1 January 2017 issued to the Company by the Jersey Financial Services Commission (the Commission) under the Control of Borrowing (Jersey) Order 1958, as amended (COBO) (the Share COBO Consent);
(g)a consent to issue share options pursuant to the 2024 Plan dated [●] July 2024 issued to the Company by the Commission under the COBO (together with the Share COBO Consent, the COBO Consents);
(h)a certificate signed by a director of the Company dated on or around the date of this opinion; and
(i)a certificate signed by the company secretary of the Company dated on or around the date of this opinion.
2.2 For the purposes of this opinion, we have, with the Company's consent, relied upon certificates and other assurances of directors and other officers of the Company as to matters of fact, without having independently verified such factual matters.
3.Assumptions
For the purposes of this opinion, we have assumed:
(a)the authenticity, accuracy, completeness and conformity to original documents of all copy documents, memoranda, extracts and certificates of officers of the Company examined by us;
(b)that the signatures on all documents examined by us are the genuine signatures of persons authorised to execute or certify such documents;
(c)the accuracy and completeness in every respect of all certificates of directors or other officers of the Company given to us for the purposes of giving this Opinion and that (where relevant) such certificates would be accurate if they have been given as of the date hereof;
(d)that the Company has received in full the consideration for which the Company agreed to issue the Shares;
(e)that in approving the Company's entry into the 2024 Plan and the transactions contemplated by it, the directors of the Company were acting in the best interests of the Company and for a proper purpose;
(f)that words and phrases used in the Post-Effective Amendment have the same meaning and effect as they would if the Post-Effective Amendment was governed by Jersey law;
(g)that no other event occurs after the date hereof which would affect the opinions herein stated;
(h)that there is no provision of the law or regulation of any jurisdiction other than Jersey which would have any adverse implication in relation to the opinion expressed hereunder; and
(i)there have been no amendments to the COBO Consents.
4.Opinion
As a matter of Jersey law, and on the basis of and subject to the foregoing and the qualifications below, we are of the opinion that the Shares, when issued pursuant to the terms of the 2024 Plan, will be validly issued, fully paid and non-assessable.
5.Qualifications
This Opinion is subject to the following qualification, namely that the obligations of the Company under, or in respect of, the Shares will be subject to any law from time to time in force relating to bankruptcy, insolvency, liquidation, reorganisation or administration or any other law or legal procedure affecting generally the enforcement of creditors' rights.
6.Governing Law, Limitations, Benefit and Disclosure
6.1 This Opinion shall be governed by and construed in accordance with the laws of Jersey and is limited to the matters expressly stated herein.
6.2 This Opinion is limited to matters of Jersey law and practice as at the date hereof and we have made no investigation and express no opinion with respect to the law or practice of any other jurisdiction.
6.3 We assume no obligation to advise you (to any other person who may rely on this Opinion in accordance with this paragraph), or undertake any investigations, as to any legal developments or factual matters arising after the date of the Opinion that might affect the opinions expressed herein.
6.4 We consent to the filing of a copy of this opinion as Exhibit 5.1 to the Post-Effective Amendment and to reference to us being made therein. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated by the US Securities and Exchange Commission under the Securities Act.
Yours faithfully
Ogier (Jersey) LLP
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Post Effective Amendment No. 1 to Registration Statements on Form S-8 pertaining to the NovoCure Limited 2024 Omnibus Incentive Plan of NovoCure Limited of our reports dated February 22, 2024, with respect to the consolidated financial statements of NovoCure Limited and the effectiveness of internal control over financial reporting of NovoCure Limited included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
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| /s/ KOST FORER GABBAY AND KASIERER | | |
| A member of EY Global | | |
| Tel Aviv, Israel | /s/ | |
| July 25, 2024 | | |
NovoCure (NASDAQ:NVCR)
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