As filed with the Securities and Exchange Commission on June 29, 2015

Registration No. 333-       

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C.  20549

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

United Therapeutics Corporation

(Exact Name of Registrant as Specified in the Charter)

 

Delaware

 

52-1984749

(State or other jurisdiction of incorporation
or organization)

 

(I.R.S. Employer Identification No.)

 

1040 Spring Street
Silver Spring, MD

 

20910

(Address of principal executive offices)

 

(Zip Code)

 

UNITED THERAPEUTICS CORPORATION
2015 STOCK INCENTIVE PLAN

(Full title of the plan)

 

Martine A. Rothblatt, Chairman and Co-Chief Executive Officer

United Therapeutics Corporation

1040 Spring Street

Silver Spring, MD 20910
(301) 608-9292
(Name, address and telephone number, including area code, of agent for service)

 

Copy to:

 

Stephen I. Glover, Esq.

 

John S. Hess, Jr., Esq.

Gibson, Dunn & Crutcher LLP

 

Vice President and Associate General Counsel

1050 Connecticut Avenue, N.W.

 

United Therapeutics Corporation

Washington, D.C. 20036

 

55 T.W. Alexander Drive

(202) 955-8500

 

Research Triangle Park, NC 27516

 

 

(919) 485-8350

 

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 Exchange Act.

 

Large accelerated filer x

 

Accelerated filer o

Non-accelerated filer o (Do not check if a smaller reporting company)

 

Smaller reporting company o

 

CALCULATION OF REGISTRATION FEE

 

Title of 
Securities to be 
Registered (1)

 

Amount to be 
Registered (2)

 

Proposed Maximum 
Offering Price Per Share (3)

 

Proposed Maximum 
Aggregate Offering 
Price (3)

 

Amount of 
Registration 
Fee

 

Common Stock, par value $0.01 per share

 

6,150,000 shares

 

$

177.61

 

$

1,092,301,500

 

$

126,926

 

(1)          This Registration Statement relates to the equity awards that may be issued under the United Therapeutics Corporation 2015 Stock Incentive Plan (the “Plan”).

 

(2)          Pursuant to Rule 416 under the Securities Act of 1933 (the “Securities Act”), this Registration Statement also covers any additional shares of the Registrant’s common stock, par value $0.01 per share (“Common Stock”), of United Therapeutics Corporation that may be issued under the Plan as a result of any stock dividend, stock split, recapitalization or other similar transactions.

 

(3)          Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and (h)(1) under the Securities Act. The price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock as reported on the NASDAQ Global Select Market for June 25, 2015.

 

 

 


 

INTRODUCTION

 

This Registration Statement on Form S-8 is filed by United Therapeutics Corporation, a Delaware corporation (the “Company” or the “Registrant”), relating to 6,150,000 shares of Common Stock, issuable to eligible individuals under the Plan.

 

PART I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Item 1.                                                          Plan Information *

 

Item 2.                                                          Registrant Information and Employee Plan Annual Information *

 

*                                          Information required by Part I to be contained in the Section 10(a) prospectus is omitted from this Registration Statement in accordance with Rule 428 under the Securities Act and the Note to Part I of Form S-8.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.                                                          Incorporation of Documents by Reference

 

The following documents, which have heretofore been filed by the Company with the Securities Exchange Commission (the “Commission”) pursuant to the Securities Act, and pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein and shall be deemed to be a part hereof:

 

(1)                                  The Annual Report on Form 10-K for the fiscal year ended December 31, 2014, which the Company filed with the Commission on February 24, 2015;

 

(2)                                  The Quarterly Report on Form 10-Q for the period ended March 31, 2015, which the Company filed with the Commission on April 28, 2015;

 

(3)                                  Current Reports on Form 8-K filed on April 30, 2015 (as to information filed under Item 5.03 of Form 8-K) and June 29, 2015;

 

(4)                                  The description of the Common Stock contained in the Registration Statement on Form 8-A/A filed with the Commission on May 2, 2011, together with any amendments or reports filed for the purposes of updating such description; and

 

(5)                                  The description of the Company’s preferred stock purchase rights (which trade with the Common Stock) contained in the First Amended and Restated Rights Agreement filed with the Commission on Current Report Form 8-K on July 3, 2008, together with any amendments or reports filed for the purposes of updating such description.

 

In addition, all documents filed by the Company or the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all such

 

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securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and made a part hereof from their respective dates of filing (such documents, and the documents listed above, being hereinafter referred to as “Incorporated Documents”); provided, however, that the documents listed above or subsequently filed by the Company or the Plan pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the offering made by this Registration Statement is in effect prior to the filing with the Commission of the Company’s Annual Report on Form 10-K covering such year shall cease to be Incorporated Documents or to be incorporated by reference in this Registration Statement from and after the filing of such Annual Reports.

 

Any statement contained herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in any subsequently filed Incorporated Document modifies or supersedes such statement.  Any statement contained in an Incorporated Document 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 other subsequently filed Incorporated Document 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.

 

Item 4.                                                          Description of Securities

 

Not Applicable.

 

Item 5.                                                          Interests of Named Experts and Counsel

 

Not Applicable.

 

Item 6.                                                          Indemnification of Directors and Officers

 

As permitted by Delaware law, the Company’s certificate of incorporation provides that no director will be personally liable to the Company or its shareholders for monetary damages for breach of fiduciary duty as a director, except for liability for (a) any breach of duty of loyalty to the Company or its shareholders, (b) acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law, (c) willful or negligent violations of certain provisions of the Delaware General Corporation Law (the “DGCL”) imposing certain requirements with respect to stock repurchases, redemptions and dividends, or (d) for any transaction from which the director derived an improper personal benefit.

 

The Company’s certificate of incorporation and bylaws provide that the Company must indemnify its directors and officers and may indemnify its employees and agents to the fullest extent permitted by Delaware law. Pursuant to Section 145 of the DGCL, the Company generally has the power to indemnify its current and former directors, officers, employees and agents against expenses and liabilities that they incur in connection with any suit to which they are, or are threatened to be made, a party by reason of their serving in such positions so long as they acted in good faith and in a manner they reasonably believed to be in, or not opposed to, the best interests of the Company, and with respect to any criminal action, they had no reasonable cause to believe their conduct was unlawful. The statute expressly provides that the power to indemnify or advance expenses authorized thereby is not exclusive of any rights granted under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office. The Company believes that indemnification under its certificate of incorporation and bylaws covers negligence and gross negligence on the part of indemnified parties. The Company also has the power to purchase and maintain insurance for such directors and officers, and currently maintains an insurance policy which, within the limits and subject to the terms and conditions thereof, covers certain expenses and liabilities that may be incurred by directors

 

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and officers in connection with actions, suits or proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the Company.

 

The Company has entered into indemnification agreements with each of its directors and executive officers. These agreements, among other things, require the Company to indemnify such directors and executive officers for certain expenses (including attorneys’ fees), judgments, fines and settlement amounts incurred by any such person in any action or proceeding, including any action by the Company or in its right, arising out of such person’s services as a director or officer of the Company, any of its subsidiaries or any other company or enterprise to which the person provides services at the Company’s request to the fullest extent permitted by law.

 

The foregoing discussion of the Company’s certificate of incorporation and bylaws and Section 145 of the DGCL is not intended to be exhaustive and is qualified in its entirety by each of those documents and that statute.

 

Item 7.                                                          Interests of Named Experts and Counsel

 

Not Applicable.

 

Item 8.                                                          Exhibits

 

Exhibit No.

 

Description

 

 

 

4.1

 

Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on Form S-1/A filed on June 11, 1999)

 

 

 

4.2

 

Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on June 28, 2010)

 

 

 

4.3

 

Fourth Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on June 29, 2015)

 

 

 

5.1

 

Opinion of counsel*

 

 

 

10.1

 

United Therapeutics Corporation 2015 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on June 29, 2015)

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm*

 

 

 

23.2

 

Consent of counsel (included in Exhibit 5.1)*

 

 

 

24

 

Power of Attorney (included on signature page)*

 

* Filed herewith

 

[SIGNATURES ON THE NEXT PAGE]

 

3


 

SIGNATURES

 

Pursuant to the requirements of the Securities Act, the Company 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 Research Triangle Park, North Carolina, on this 29th day of June, 2015.

 

 

 

UNITED THERAPEUTICS CORPORATION

 

 

 

 

 

By:

/s/ Martine A. Rothblatt

 

Martine A. Rothblatt, Ph.D.

 

Chairman of the Board and Co-Chief Executive Officer

 

 

 

 

 

By:

/s/ Roger A. Jeffs

 

Roger A. Jeffs, Ph.D.

 

President and Co-Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Martine A. Rothblatt, Ph.D., James Edgemond, Roger Jeffs, Ph.D. and Paul A. Mahon, and each of them, with full power of substitution and full power to act without the others, his or her true and lawful attorney-in-fact and agent, to act for him or her and in his or her name, place and stead, in any and all capacities, to sign this Registration Statement on Form S-8 any and all amendments (including post-effective amendments) to this Registration Statement and any subsequent registration statement the Company may hereafter file with the Commission pursuant to Rule 462(b) under the Securities Act to register additional Awards, and to file this Registration Statement and any subsequent registration statement and all amendments thereto, with all exhibits thereto, and other documents in connection therewith, with the Commission, granting unto such attorneys-in-fact and agents, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do, and hereby ratifies and confirms all his said attorneys-in-fact and agents, or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.  This Power of Attorney may be signed in any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one Power of Attorney.

 

Pursuant to the requirements of the Securities Act, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

 

Name

 

Title

 

Date

 

 

 

 

 

/s/ Martine A. Rothblatt

 

Chairman and Co-Chief Executive Officer

 

June 26, 2015

Martine A. Rothblatt

 

(Co-Principal Executive Officer)

 

 

 

4


 

Name

 

Title

 

Date

 

 

 

 

 

/s/ James Edgemond

 

Chief Financial Officer and Treasurer

 

June 26, 2015

James Edgemond

 

(Principal Financial Officer and Principal Accounting Officer)

 

 

 

 

 

 

 

/s/ Roger A. Jeffs

 

President, Co-Chief Executive Officer and

 

June 26, 2015

Roger A. Jeffs

 

Director (Co-Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Christopher Causey

 

Director

 

June 26, 2015

Christopher Causey

 

 

 

 

 

 

 

 

 

/s/ Raymond Dwek

 

Director

 

June 26, 2015

Raymond Dwek

 

 

 

 

 

 

 

 

 

/s/ Richard Giltner

 

Director

 

June 26, 2015

Richard Giltner

 

 

 

 

 

 

 

 

 

/s/ Katherine Klein

 

Director

 

June 26, 2015

Katherine Klein

 

 

 

 

 

 

 

 

 

/s/ Ray Kurzweil

 

Director

 

June 26, 2015

Ray Kurzweil

 

 

 

 

 

 

 

 

 

/s/ Judy Olian

 

Director

 

June 26, 2015

Judy Olian

 

 

 

 

 

 

 

 

 

/s/ Christopher Patusky

 

Director

 

June 26, 2015

Christopher Patusky

 

 

 

 

 

 

 

 

 

/s/ Louis Sullivan

 

Director

 

June 26, 2015

Louis Sullivan

 

 

 

 

 

 

 

 

 

 

 

Director

 

June     , 2015

Tommy Thompson

 

 

 

 

 

5


 

EXHIBIT INDEX

 

Exhibit No.

 

Description

 

 

 

4.1

 

Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Registration Statement on Form S-1/A filed on June 11, 1999)

 

 

 

4.2

 

Certificate of Amendment to Amended and Restated Certificate of Incorporation of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on June 28, 2010)

 

 

 

4.3

 

Fourth Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K filed on June 29, 2016)

 

 

 

5.1

 

Opinion of counsel*

 

 

 

10.1

 

United Therapeutics Corporation 2015 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 of the Company’s Current Report on Form 8-K filed on June 29, 2015)

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm*

 

 

 

23.2

 

Consent of counsel (included in Exhibit 5.1)*

 

 

 

24

 

Power of Attorney (included on signature page)*

 

* Filed herewith

 

6

Exhibit 5.1

 

 

June 29, 2015

 

United Therapeutics Corporation
1040 Spring Street
Silver Spring, MD 20910

 

Re:          United Therapeutics Corporation Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have examined the Registration Statement on Form S-8 (the “Registration Statement”), of United Therapeutics Corporation, a Delaware corporation (the “Company”) filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to 6,150,000 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), issuable to eligible individuals under the Company’s 2015 Stock Incentive Plan (the “Plan”).

 

We have examined the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below.  In our examination, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies.

 

Based upon the foregoing examination and in reliance thereon, and subject to the assumptions stated and in reliance on statements of fact contained in the documents that we have examined, we are of the opinion that the shares of Common Stock issuable under the Plan, when issued in accordance with the terms of the Plan, will be validly issued, fully paid and non-assessable.

 

We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”).  We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above.  This opinion is limited to the effect of the current state of the law of the DGCL and the facts

 

 


 

as they currently exist.  We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.

 

We consent to the filing of this opinion as an exhibit to the Registration Statement.  In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.

 

Very truly yours,

 

/s/ Gibson, Dunn & Crutcher, LLP

Gibson, Dunn & Crutcher, LLP

 

2

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to United Therapeutics Corporation 2015 Stock Incentive Plan of United Therapeutics Corporation of our reports dated February 24, 2015, with respect to the consolidated financial statements and schedule of United Therapeutics Corporation and the effectiveness of internal control over financial reporting of United Therapeutics Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 2014, filed with the Securities and Exchange Commission.

 

 

 

 

/s/ Ernst & Young LLP

 

 

 

 

McLean, Virginia

 

June 29, 2015

 

 

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