40-F/A 1 v376156_40fa.htm

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM 40-F/A
(Amendment No. 1)

 

¨ Registration statement pursuant to section 12 of the Securities Exchange Act of 1934

 

OR

 

x Annual report pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934

 

For the fiscal year ended December 31, 2013 Commission File Number 000-29338

 

CARDIOME PHARMA CORP.
(Exact name of Registrant as specified in its charter)

 

Canada
(Province or other jurisdiction of incorporation or organization)

 

2834
(Primary Standard Industrial Classification Code Number (if applicable))

 

Not Applicable
(I.R.S. Employer Identification Number (if applicable))

 

6190 Agronomy Road, Suite 405
Vancouver, British Columbia, Canada V6T 1Z3
(604) 677-6905
(Address and telephone number of Registrant’s principal executive offices)

 

CT Corporation

111 Eighth Avenue

New York, New York 10011

(212) 894-8940
(Name, address (including zip code) and telephone number (including area code)
of agent for service in the United States)

 

Securities registered or to be registered pursuant to Section 12(b) of the Act:

 Title of each class Name of each exchange on which registered
Common Shares, no par value Nasdaq Stock Market

 

Securities registered or to be registered pursuant to Section 12(g) of the Act:
None

 

Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act:
None

 

For annual reports, indicate by check mark the information filed with this Form:

 

¨ Annual Information Form x Audited Annual Financial Statements

 

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report:

 

The Registrant had 14,958,277 Common Shares outstanding as at December 31, 2013.

 

Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports) and (2) has been subject to such filing requirements for the past 90 days.

 

Yes  x   No  ¨

 

Indicate by check mark whether registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files).

 

Yes  x   No  ¨

 

 
 

 

EXPLANATORY NOTE

 

This Form 40-F/A is being filed to amend the Annual Report on Form 40-F for the fiscal year ended December 31, 2013, originally filed with the Securities and Exchange Commission (the “Commission”) on March 27, 2014. The Registrant is filing this Amendment to replace in their entirety the Audited Consolidated Financial Statements of the Registrant for the fiscal year ended December 31, 2013 (the “Originally Filed Statements”), which were filed as Exhibit 1.2 to the Form 40-F. The purpose of this amended filing is to correct certain typographical errors in the unaudited pro forma information disclosed in note 4 to the Originally Filed Statements, and to make other changes to conform with required disclosure. These changes include the removal of the disclosure of unaudited pro forma income (loss) from operations, which was not required to be disclosed and contained a calculation error, as well as amendments to the unaudited pro forma net income (loss) and pro forma net income (loss) per share for the years ended December 31, 2013 and 2012 to adjust for certain calculation errors. This amended filing does not impact reported revenues, net income attributable to the Company, income per share or net cash flows for the year ended December 31, 2013. Financial information in the Registrant’s audited consolidated financial statements is subject to multiple levels of internal review prior to being disclosed. The review process was being followed during the preparation of the Originally Filed Statements. Notwithstanding such controls, the calculation error was inadvertently carried through to the Originally Filed Statements. Nevertheless, the Registrant does not believe this error reflects a material weakness in the Registrant’s internal control over financial reporting, and its Chief Executive Officer and Chief Financial Officer have re-evaluated the Registrant’s disclosure controls and procedures and internal control over financial reporting as a result of these errors and have concluded that such controls remain effective, as described below. Readers should disregard the Originally Filed Statements in their entirety and instead refer to the Annual Consolidated Financial Statements filed herewith. An amended Interactive Data File is being filed herewith as Exhibit 101 to reflect these changes. No changes are required to be made to the Registrant’s previously-filed Management’s Discussion and Analysis of Financial Condition and Results of Operation for the fiscal year ended December 31, 2013, which was filed as Exhibit 1.3 to the Form 40-F. The Registrant has also revised Item A. Disclosure Controls and Procedures, Item B. Management’s Annual Report on Internal Control Over Financial Reporting an Item D. Changes in Internal Control Over Financial Reporting, as set forth below.

 

In addition, as required by Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), new certifications by the Registrant’s principal executive officer and principal financial officer are filed herewith as Exhibits 31.1 and 32.1 to this Form 40-F/A, and a new consent of KPMG LLP is filed herewith as Exhibit 23.1.

 

Other than as discussed above, all information in the Company’s Form 40-F is unchanged and is not reproduced in this Form 40-F/A. This Form 40-F/A does not reflect events occurring after the filing of the Form 40-F or modify or update the disclosure contained in the Form 40-F in any way other than as discussed above. Accordingly, this Form 40-F/A should be read in conjunction with the Form 40-F.

 

A.                  Disclosure Controls and Procedures

  

Disclosure controls and procedures are defined by the Securities and Exchange Commission (the “Commission”) as those controls and other procedures that are designed to ensure that information required to be disclosed by the Registrant in reports filed or submitted by it under the Exchange Act, is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms.

 

In connection with the filing of this Form 40-F/A, the Registrant’s Chief Executive Officer and Chief Financial Officer have re-evaluated the effectiveness of the Registrant’s disclosure controls and procedures and have concluded, despite the changes required to be made to the Originally Filed Statements, that such disclosure controls and procedures were effective as at December 31, 2013. See also “Disclosure Controls and Procedures” in Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2013, filed as Exhibit No. 1.3 to this Annual Report on Form 40-F.

 

 
 

  

B.                  Management’s Annual Report on Internal Control over Financial Reporting

 

The Registrant’s management, including its Chief Executive Officer and Chief Financial Officer, is responsible for establishing and maintaining adequate internal control over financial reporting (as such term is defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) and has designed such internal control over financial reporting to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States of America (“GAAP”). Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Projections of any evaluation of effectiveness to future periods are subject to the risks that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies and procedures may deteriorate.

 

In connection with the filing of this Form 40-F/A, the Registrant’s management has re-evaluated the design and operation of its internal control over financial reporting as of December 31, 2013 and has concluded that, despite the changes required to be made to the Originally Filed Statements, such internal control over financial reporting is effective as of December 31, 2013. This assessment was based on the framework in Internal Control—Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission.

 

As permitted by Commission guidance, the Registrant’s management did not include the internal control over financial reporting of Correvio LLC (“Correvio”), which was acquired in November 2013, in management’s assessment of the effectiveness of internal controls over financial reporting as of December 31, 2013. As of December 31, 2014, the Registrant’s management will be required to assess the effectiveness of the internal controls of Correvio, in addition to those of its existing business. Prior to its acquisition by the Registrant, Correvio was a privately held company. Correvio had net assets of $8.7 million, revenues of $3.8 million and operating expenses of $3.3 million, which the Registrant included in its consolidated financial statements as at and for the year ended December 31, 2013. Please see the Business Acquisition Report dated January 29, 2014, included as Exhibit 99.1 to the Registrant’s report on Form 6-K, furnished to the SEC on January 29, 2014.

 

C.                  Changes in Internal Control over Financial Reporting

 

During 2013, the Registrant’s management implemented a new accounting system. The new accounting system was implemented to achieve a consistent and integrated financial reporting system and further strengthens the Registrant’s internal controls over financial reporting. The Registrant’s management also incorporated additional internal controls related to the accounting for product revenue and inventories related to the sale of BRINAVESSTM. There were no material changes to the Registrant’s internal controls in fiscal 2013 as a result of the acquisition of Correvio in November 2013.

 

There were no other significant changes in the Registrant’s internal control over financial reporting that occurred during the period covered by this report that has materially affected, or is reasonably likely to materially affect, the Registrant’s internal control over financial reporting. No changes in the Registrant’s internal control over financial reporting have been made in connection with the filing of this Form 40-F/A.

 

 
 

 

UNDERTAKING AND CONSENT TO SERVICE OF PROCESS

 

A.                   Undertaking

The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities in relation to which the obligation to file an annual report on Form 40-F arises or transactions in said securities.

 

B.                   Consent to Service of Process

The Registrant has previously filed with the Commission a written irrevocable consent and power of attorney on Form F-X in connection with its Common Shares. Any change to the name or address of the agent for service of process shall be communicated promptly to the Commission by an amendment to the Form F-X.

 

 
 

 

EXHIBITS

 

The following exhibits are filed as part of this report:

 

Exhibit No. Description
   
1.1 Annual Information Form for the fiscal year ended December 31, 2013.*
   
1.2 Audited Consolidated Financial Statements for the fiscal year ended December 31, 2013.
   
1.3 Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2013.*
   
23.1 Consent of KPMG LLP.
   
31.1 Certifications of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
   
32.1 Certification of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
   
101 Interactive Data File (as amended).
   

* Previously Filed

 

 
 

SIGNATURES

 

Pursuant to the requirements of the Exchange Act, the Registrant certifies that it meets all of the requirements for filing on Form 40-F and has duly caused this annual report to be signed on its behalf by the undersigned, thereto duly authorized.

 

Date: April 30, 2014

 

  Cardiome Pharma Corp.
   
  By:  /s/ William Hunter
 

Name:

Title:

 William Hunter
President and Chief Executive Officer

 

 
 

 

EXHIBIT INDEX

 

Exhibit No. Description
   
1.1 Annual Information Form for the fiscal year ended December 31, 2013.*
   
1.2 Audited Consolidated Financial Statements for the fiscal year ended December 31, 2013.
   
1.3 Management’s Discussion and Analysis of Financial Condition and Results of Operations for the fiscal year ended December 31, 2013.*
   
23.1 Consent of KPMG LLP.
   
31.1 Certifications of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
   
32.1 Certification of Chief Executive Officer (Principal Executive Officer) and Chief Financial Officer (Principal Financial Officer) pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
   
101 Interactive Data File (as amended).

 

* Previously Filed