40-F 1 m12968ore40vf.txt FORM 40-F U.S. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------------------------------------------------------------------- FORM 40-F [ ] REGISTRATION STATEMENT PURSUANT TO SECTION 12 OF THE SECURITIES EXCHANGE ACT OF 1934 [X] ANNUAL REPORT PURSUANT TO SECTION 13(a) OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Commission File Number 000-50393 For the six-month period ended December 31, 2003 -------------------------------------------------------------------------------- NEUROCHEM INC. (Exact name of Registrant as specified in its charter) Canada 2834 Not Applicable (Province or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer incorporation or organization) Classification Code Number) Identification No.)
275 ARMAND FRAPPIER BOULEVARD LAVAL, QUEBEC H7V 4A7, CANADA (450) 680-4500 (Address and telephone number of Registrant's principal executive offices) CT Corporation System 111 Eighth Avenue, 13th Floor New York, New York 10011 (212) 894-8400 (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: None Securities registered or to be registered pursuant to Section 12(g) of the Act: Common Shares, no par value 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: [X] 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 29,775,127 Common Shares Outstanding as at December 31, 2003 Indicate by check mark whether the Registrant by filing the information contained in this Form is also thereby furnishing the information to the Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934 (the "Exchange Act"). If "Yes" is marked, indicate the filing number assigned to the Registrant in connection with such Rule. Yes [ ] No [X] 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 [ ] PRINCIPAL DOCUMENTS The following documents have been filed as part of this Annual Report on Form 40-F: A. ANNUAL INFORMATION FORM Annual Information Form of the Registrant for the six-month period ended December 31, 2003. B. CONSOLIDATED AUDITED ANNUAL FINANCIAL STATEMENTS Consolidated Audited Financial Statements of the Registrant for the six-month period ended December 31, 2003, years ended June 30, 2003 and 2002 and for the period from inception (June 17, 1993) to December 31, 2003 together with the auditors' report thereon, including a reconciliation to United States generally accepted accounting principles. C. MANAGEMENT'S DISCUSSION AND ANALYSIS Management's Discussion of Financial Conditions and Results of Operations of the Registrant for the fiscal years referred to above. DISCLOSURE CONTROLS AND PROCEDURES DISCLOSURE CONTROLS AND PROCEDURES Based on their evaluation as of the end of the period covered by this report, the Registrant's Chief Executive Officer and Chief Financial Officer have concluded that the Registrant's disclosure controls and procedures as defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act are effective to ensure that information required to be disclosed by the Registrant in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in Securities and Exchange Commission rules and forms. CHANGES IN INTERNAL CONTROL OVER FINANCIAL REPORTING As of the end of the period covered by this report, there were no changes in the Registrant's internal control over financial reporting that occurred during the period covered by this report that have materially affected or are reasonably likely to materially affect the Registrant's internal control over financial reporting. NOTICES PURSUANT TO REGULATION BTR None. AUDIT COMMITTEE A. IDENTIFICATION OF AUDIT COMMITTEE The following persons comprise the Audit Committee: Mr. Graeme K. Rutledge (Chair), Dr. Colin Bier and Mr. John Molloy. B. AUDIT COMMITTEE FINANCIAL EXPERT The Board of Directors of the Company has determined that Mr. Graeme K. Rutledge is an audit committee financial expert (as defined in paragraph 8(b) of General Instruction B to Form 40-F). CODE OF ETHICS The Registrant has adopted a code of ethics (as that term is defined in Form 40-F) that applies to its employees (including its principal executive officer, principal financial officer and controller). The code of ethics is attached as an exhibit and filed with this Form 40-F. Since the adoption of the code of ethics, there have not been any amendments to the code of ethics or waivers, including implicit waivers, from any provision of the code of ethics. PRINCIPAL ACCOUNTANT FEES AND SERVICES The Company has paid KPMG LLP ("KPMG"), its external auditors, the following fees in each of the last two fiscal periods. AUDIT FEES The following sets forth the aggregate fees paid for each of the two past fiscal periods for professional fees to KPMG for the audit of the annual financial statements or for services normally provided by KPMG in connection with statutory and regulatory filings or engagements for those fiscal periods. Fiscal year ended June 30, 2003 Cdn $53,700 Audit of consolidated financial statements for the six-month period ended December 31, 2003 Cdn $64,040 AUDIT-RELATED FEES The following sets forth additional aggregate fees to those reported under "Audit Fees" in each of the last two fiscal periods for assurance and related services by KPMG that are reasonably related to the performance of the audit or review of the financial statements: Fiscal year ended June 30, 2003 Review of interim financial statements Cdn $23,200 Translation services Cdn $16,200 Six-month period ended December 31, 2003 Review of interim financial statements Cdn $10,500 Public offering Cdn $206,000 Comments on accounting treatment or requirements of various transactions Cdn $43,870 Translation services Cdn $31,400 NON-AUDIT AND TAX FEES The following sets forth the aggregate fees billed in each of the last two fiscal periods for professional services rendered by KPMG for tax compliance, tax advice and tax planning: Fiscal year ended June 30, 2003 Assistance with corporate reorganization and tax compliance work $119,700 Six-month period ended December 31, 2003 Review of various business opportunities, sales tax and US tax issues $38,300 ALL OTHER FEES The following sets forth the aggregate fees billed in each of the last two fiscal periods for products and services provided by the principal accountant not described above: Fiscal year ended June 30, 2003 None Six-month period ended December 31, 2003 None AUDIT COMMITTEE APPROVAL The Registrant's audit committee pre-approves every engagement by KPMG to render audit or non-audit services. All of the services described above were approved by the audit committee. Prior to the beginning of each fiscal period, the Registrant seeks audit committee approval for all services expected to be rendered by KPMG during the coming year. If during the course of the year, the Registrant requires a service to be performed that is not contemplated in the list of pre-approved services the Registrant seeks approval from the Chairman of the audit committee for KPMG to proceed with such service, which approval requires subsequent ratification at the next meeting of the audit committee. OFF-BALANCE SHEET ARRANGEMENTS The Registrant has no off-balance sheet arrangements required to be disclosed in this annual report on Form 40-F. CONTRACTUAL OBLIGATIONS
Payments Due by Period (in thousand Canadian $) ---------------------------------------------------------------- Contractual Obligations Total Less than 1 year 1-3 years 3-5 years More than 5 years ----------------------- ----- ---------------- --------- --------- ----------------- Obligations under capital leases 901 470 431 Nil Nil Operating leases 2,184 508 1,052 392 232 Management fees 1,120 960 160 Nil Nil
DISCLOSURE PURSUANT TO THE REQUIREMENTS OF THE NASDAQ NATIONAL MARKET ("NASDAQ") The Registrant was granted an exemption from Marketplace Rule 4350(f) requiring each issuer to provide for a quorum at any meeting of the holders of common stock of no less than 33 1/3% of the outstanding shares of the issuer's common voting stock. This exemption was granted because Nasdaq's requirements regarding Marketplace Rule 4350(f) are contrary to generally accepted business practices in Canada. DOCUMENTS FILED PURSUANT TO GENERAL INSTRUCTIONS: Number Document ------ -------- 1. Annual Information Form of the Registrant for the fiscal year ended December 31, 2003. 2. Consolidated Audited Financial Statements of the Registrant for the six-month period ended December 31, 2003, years ended June 30, 2003 and 2002 and for the period from inception (June 17, 1993) to December 31, 2003 together with the auditors' report thereon, including a reconciliation to United States generally accepted accounting principles. 3. Management's Discussion and Analysis of Financial Condition and Results of Operations of the Registrant for the fiscal years referred to above. 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 required to do so by the Commission staff, information relating to: the securities registered pursuant to Form 40-F; 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 Form F-X. SIGNATURE 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. May 13, 2004 NEUROCHEM INC. By: /s/ Francesco Bellini ------------------------------------------------- Dr. Francesco Bellini Chairman of the Board and Chief Executive Officer EXHIBIT INDEX NUMBER DOCUMENT ------ -------- 1. Annual Information Form of the Registrant for the fiscal year ended December 31, 2003. 2. Consolidated Audited Financial Statements of the Registrant for the six-month period ended December 31, 2003, years ended June 30, 2003 and 2002 and for the period from inception (June 17, 1993) to December 31, 2003 together with the auditors' report thereon, including a reconciliation to United States generally accepted accounting principles. 3. Management's Discussion and Analysis of Financial Condition and Results of Operations of the Registrant for the fiscal years referred to above. 4. Consent of KPMG LLP 5. Certification pursuant to Rule 13a-14 or 15d-14 of the Exchange Act, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Dr. Francesco Bellini) 6. Certification pursuant to Rule 13a-14 or 15d-14 of the Exchange Act, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (Claude Michaud) 7. Certification pursuant to Title 18, United States Code, Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Dr. Francesco Bellini) 8. Certification pursuant to Title 18, United States Code, Section 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (Claude Michaud) 9. Code of Ethics