Insider filing report for Changes in Beneficial Ownership
- Schedule 13G & 13D forms are used to report a party's ownership of stock which exceeds 5% of a company's total stock issue.
- Schedule 13G is a shorter version of Schedule 13D with fewer reporting requirements.
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO § 240.13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO 240.13d-2(a)
Under the Securities Exchange Act of 1934
Nyxoah SA
(Name of Issuer)
Ordinary Shares
(Title of Class of Securities)
B6S7WD106
(CUSIP Number)
Ray Jarman
Group General Counsel & Company Secretary
Cochlear Limited
1 University Avenue, Macquarie University
NSW 2109
Australia
+61294255239
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
July 7, 2021
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. ¨
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended (the “Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| CUSIP No. B6S7WD106 | Page 2 of 8 Pages |
| 1. | Name of reporting person Cochlear Investments Pty Ltd |
| 2. | Check the appropriate box if a member of a group (a) ¨ (b) ¨ |
| 3. | SEC use only |
| 4. | Source of funds AF |
| 5. | Check box if disclosure of legal proceedings is required pursuant to Item 2(e) or 2(f) ¨ |
| 6. | Citizenship or place of organization Australia |
| Number of shares beneficially owned by each reporting person with |
7. | Sole voting power | |
| 8. | Shared voting power 4,697,617 Ordinary Shares (See Item 5) | ||
| 9. | Sole dispositive power | ||
| 10. | Shared dispositive power 4,697,617 Ordinary Shares (See Item 5) |
| 11. | Aggregate amount beneficially owned by each reporting person 4,697,617 Ordinary Shares |
| 12. | Check box if the aggregate amount in Row (11) excludes certain shares ¨ |
| 13. | Percent of class represented by amount in Row (11) 18.5%(1) |
| 14. | Type of reporting person CO |
(1) Based on 25,437,859 ordinary shares (“Ordinary Shares”) of Nyxoah S.A. (the “Issuer”) stated to be outstanding in the Issuer's Form 6-K furnished to the Securities and Exchange Commission (“SEC”) on July 9, 2021.
| CUSIP No. B6S7WD106 | Page 3 of 8 Pages |
| 1. | Name of reporting person Cochlear Limited |
| 2. | Check the appropriate box if a member of a group (a) ¨ (b) ¨ |
| 3. | SEC use only |
| 4. | Source of funds WC |
| 5. | Check box if disclosure of legal proceedings is required pursuant to Item 2(e) or 2(f) ¨ |
| 6. | Citizenship or place of organization Australia |
| Number of shares beneficially owned by each reporting person with |
7. | Sole voting power | |
| 8. | Shared voting power 4,697,617 Ordinary Shares (see Item 5) | ||
| 9. | Sole dispositive power | ||
| 10. | Shared dispositive power 4,697,617 Ordinary Shares (See Item 5) |
| 11. | Aggregate amount beneficially owned by each reporting person 4,697,617 Ordinary Shares |
| 12. | Check box if the aggregate amount in Row (11) excludes certain shares ¨ |
| 13. | Percent of class represented by amount in Row (11) 18.5%(1) |
| 14. | Type of reporting person CO |
Based on 25,437,859 Ordinary Shares stated to be outstanding in the Issuer's Form 6-K furnished to the SEC on July 9, 2021.
| CUSIP No. B6S7WD106 | Page 4 of 8 Pages |
| ITEM 1. | SECURITIES AND ISSUER. |
This Schedule 13D relates to the ordinary shares (the “Ordinary Shares”) of Nyxoah SA (the “Issuer”). The principal executive offices of the Issuer are located at Rue Edouard Belin 12, 1435 Mont-Saint-Guibert, Belgium.
| ITEM 2. | IDENTITY AND BACKGROUND |
| (a) – (b) | Pursuant to Rule 13d-1 promulgated by the SEC under Section 13 of the Act, this statement is being filed by: (i) Cochlear Investments Pty Ltd (“Cochlear Investments”); and (ii) Cochlear Limited The Ordinary Shares that may be deemed to be beneficially owned by each Reporting Person are set forth on Line 11 of such Reporting Person’s cover sheet. The Ordinary Shares are owned directly by Cochlear Investments. Cochlear Investments is a wholly-owned subsidiary of Cochlear Limited. Accordingly, Cochlear Limited may be deemed to have investment control over the Ordinary Shares held by Cochlear Investments. Cochlear Investments and Cochlear Limited are each referred to individually as a “Reporting Person” and collectively as the “Reporting Persons.” |
The principal business address of each Reporting Person is 1 University Avenue, Macquarie University
NSW 2109, Australia. The name, business address, present principal occupation and the citizenship of each director and executive officer
of each of the Reporting Persons are set forth in Schedules A hereto and are incorporated herein by reference.
| (c) | Cochlear Investments is principally engaged in the business of investing in health care industry companies. Cochlear Limited is a medical device company that is publicly listed in Australia. |
| (d) – (e) | During the five years preceding the date of this filing, neither of the Reporting Persons nor any person listed on Schedule A has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. |
| (f) | The Reporting Persons are incorporated under the laws of New South Wales, Australia. |
| CUSIP No. B6S7WD106 | Page 5 of 8 Pages |
| ITEM 3 | SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION |
On June 30, 2021, the Registration Statement on Form F-1 filed with the Securities and Exchange Commission (“SEC”) by the Issuer in connection with its initial public offering in the United States (the “IPO”) was declared effective. The closing of the IPO took place on July 7, 2021 and at such closing Cochlear Investments purchased an aggregate of 750,000 Ordinary Shares at the IPO price of $30.00 per share.
Cochlear Investments purchased 3,988 Series B2 preferred shares of the Issuer in two tranches between September and November 2018 at EUR 3,259.91 per Series B2 preferred share.
Cochlear Investments purchased 1,350 Ordinary Shares on February 21, 2020 at EUR 5,966.59 per share.
On September 21, 2020, the Issuer completed an initial public offering on the Euronext Brussels (the “Euronext IPO”). Cochlear Investments purchased an aggregate of 294,117 Ordinary Shares in the Euronext IPO at a price of EUR 17.00 per share.
The source of funds for acquiring the securities described herein that are directly owned by Cochlear Investments was the working capital of Cochlear Limited.
| ITEM 4. | PURPOSE OF TRANSACTION. |
The response to Item 3 is incorporated herein by reference.
Cochlear Investments purchased the Ordinary Shares reported hereunder for investment purposes, and such purchases were made in the ordinary course of business of Cochlear Investments.
In pursuing such investment purposes, the Reporting Persons may further purchase, hold, vote, trade, dispose or otherwise deal in the Ordinary Shares at times, and in such manner, as they deem advisable to benefit from, among other things, (1) changes in the market price of Ordinary Shares; (2) changes in the Issuer's operations, business strategy or prospects; or (3) from the sale or merger of the Issuer. To evaluate such alternatives, the Reporting Persons will closely monitor the Issuer's operations, prospects, business development, management, competitive and strategic matters, capital structure, and prevailing market conditions, as well as other economic, securities markets and investment considerations. Consistent with their investment research methods and evaluation criteria, the Reporting Persons may discuss such matters with the management or Board of Directors of the Issuer, other shareholders, industry analysts, existing or potential strategic partners or competitors, investment and financing professionals, sources of credit, and other investors. Such evaluations and discussions may materially affect, and result in, among other things, the Reporting Persons (1) modifying their ownership of the Ordinary Shares; (2) exchanging information with the Issuer pursuant to appropriate confidentiality or similar agreements; (3) proposing changes in the Issuer's operations, governance or capitalization; (4) pursuing a transaction that would result in the Reporting Persons' acquisition of all or a controlling interest in the Issuer; or (5) pursuing one or more of the other actions described in subsections (a) through (j) of Item 4 of Schedule 13D.
In addition to the information disclosed in this Statement, the Reporting Persons reserve the right to (1) formulate other plans and proposals; (2) take any actions with respect to their investment in the Issuer, including any or all of the actions set forth in subsections (a) through (j) of Item 4 of Schedule 13D; and (3) acquire additional Ordinary Shares or dispose of some or all of the Ordinary Shares beneficially owned by them, in each case in the open market, through privately negotiated transactions or otherwise. The Reporting Persons may at any time reconsider and change their plans or proposals relating to the foregoing.
| CUSIP No. B6S7WD106 | Page 6 of 8 Pages |
| ITEM 5. | INTEREST IN SECURITIES OF THE ISSUER. |
The information contained on each of the cover pages of this Schedule 13D and the information set forth or incorporated in Items 2, 3, 4, and 6 are hereby incorporated herein by reference.
| (a) – (b) | As of the date hereof, Cochlear Investments directly owns 4,697,617 Ordinary Shares, representing 18.5% of the outstanding Ordinary Shares. Cochlear Limited is the parent company of Cochlear Investments. As a result, Cochlear Limited may be deemed to indirectly beneficially own the Ordinary Shares directly held by Cochlear Investments. The percentage of outstanding Ordinary Shares that may be deemed to be beneficially owned by each Reporting Person is set forth on line 13 of the cover sheet of this Schedule 13D. Such percentage was calculated based on 25,437,859 Ordinary Shares stated to be outstanding in the Issuer's Form 6-K furnished to the SEC on July 9, 2021. The Reporting Persons do not have the right to acquire any additional Ordinary Shares. |
| (c) | The reported share amounts for the Reporting Persons reflect amounts as of the date hereof. The Reporting Persons have not effected any transactions in the Ordinary Shares during the past 60 days, other than on July 7, 2021, Cochlear Investments acquired 750,000 Ordinary Shares from the Issuer in connection with the IPO at the IPO price of $30.00 per share for an aggregate purchase price of $22.5 million. |
| (d) | None. |
| (e) | Not applicable. |
| CUSIP No. B6S7WD106 | Page 7 of 8 Pages |
| ITEM 6. | CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. |
The Reporting Persons are parties to an agreement with respect to the joint filing of this Schedule 13D and any amendments thereto (the “Joint Filing Agreement”). A copy of the Joint Filing Agreement is attached as Exhibit 1 to this Schedule 13D and is incorporated by reference herein.
In connection with the IPO, Cochlear Investments has agreed with the underwriters of the IPO, Piper Sandler & Co., Stifel, Nicolaus & Company, Incorporated, and Cantor Fitzgerald & Co. (the “Underwriters”), subject to limited exceptions, not to offer, pledge, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase or otherwise dispose of, directly or indirectly, or enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the ordinary shares or such securities convertible or exercisable ordinary shares for a period of 90 days after the date of Issuer’s prospectus dated July 2, 2021, without the prior written consent of the Underwriters (the “U.S. Lock-up Arrangements”). The US Lock-up Arrangements do not apply to Ordinary Shares acquired by Cochlear Investments in the IPO. Such Lock-up arrangements were more fully described in the final prospectus filed by the Issuer with the SEC on July 2, 2021 pursuant to Rule 424(b)(5) and filed as Exhibit A to Exhibit 1.1 to the Issuer's Amendment No. 3 to Form S-1 Registration Statement (File No. 333-257000), and such description is incorporated herein by reference.
In connection with the Euronext IPO, Cochlear Investments, along with all other existing shareholders of the Issuer at the time of the Euronext IPO, entered into a lock-up arrangement, subject to limited exception, with the underwriters of the Euronext IPO with respect to certain of its shares and other securities issued by the Issuer for a period of twelve months after the listing date on the Euronext Brussels, September 18, 2020 (the “Euronext Lock-up Arrangements”). A copy of the Euronext Lock-up Arrangements is attached as Exhibit 3 to this Schedule 13D and is incorporated by reference herein.
Other than the Joint Filing Agreement, U.S. Lock-up Arrangements and the Euronext Lock-up Arrangements, the Reporting Persons have no contracts, arrangements, understandings or relationship with any persons with respect to the securities of the Issuer.
| ITEM 7. | MATERIAL TO BE FILED AS EXHIBITS. |
| CUSIP No. B6S7WD106 | Page 8 of 8 Pages |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated: July 16, 2021
| COCHLEAR INVESTMENTS PTY LTD | ||
| By: | /s/ Ray Jarman | |
| Name: Ray Jarman | ||
| Title: Company Secretary | ||
| COCHLEAR LIMITED | ||
| By: | /s/ Ray Jarman | |
| Name: Ray Jarman | ||
| Title: Company Secretary | ||
SCHEDULE A
Executive Officers and Directors of Cochlear Investments Pty Ltd
| Name and Position | Present Principal Occupation |
Business Address | Citizenship |
| Diggory William Howitt | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Chief Executive Officer & President, Cochlear Limited |
| Stuart Ross Sayers | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Chief Financial Officer, Cochlear Limited |
| Ray Phillip Jarman | Company Secretary | 1 University Avenue Macquarie University NSW 2109 Australia |
General Counsel & Company Secretary, Cochlear Limited |
Executive Officers and Directors of Cochlear Limited
| Name and Position | Present Principal Occupation |
Business Address | Citizenship |
| Roderic Holliday-Smith | Chair of the Board, Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Diggory William Howitt | Director, Chief Executive Officer & President | 1 University Avenue Macquarie University NSW 2109 Australia |
Chief Executive Officer & President, Cochlear |
| Yasmin Anita Allen | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Andrew Leslie Denver | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Glen Francis Boreham | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Catriona Alison Deans | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Bruce Gregory Robinson | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Shah Abbas Hussain | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Michael Grenfell Daniell | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Christine Frances McLoughlin | Director | 1 University Avenue Macquarie University NSW 2109 Australia |
Director |
| Stuart Ross Sayers | Chief Financial Officer | 1 University Avenue Macquarie University NSW 2109 Australia |
Chief Financial Officer, Cochlear |
| Jan Raymond Janssen | Chi ef Technology Officer | 1 University Avenue Macquarie University NSW 2109 Australia |
Chief Technology Officer, Cochlear |
| Anthony Sean Bishop | President, Asia Pacific & Latin America Region | 1 University Avenue Macquarie University NSW 2109 Australia |
President, Asia Pacific & Latin America Region, Cochlear |
| Richard John Brook | President, EMEA Region |
Peter Merian-Weg 4 4052 Basel Switzerland |
President, EMEA, Cochlear |
| Anthony Manna | President, Americas Region |
10350 Park Meadows Drive, Lone Tree, CO 80124, USA |
President, Americas Region, Cochlear |
| Ray Phillip Jarman | General Counsel & Company Secretary | 1 University Avenue Macquarie University NSW 2109 Australia |
General Counsel & Company Secretary, Cochlear |