As filed with the Securities and Exchange Commission on August 11, 2016

Registration No. 333-        

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

 

FORM S-8

 

REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933

 

Radius Health, Inc.

(Exact Name of Registrant as Specified in Its Charter)

 

Delaware

 

80-0145732

(State or Other Jurisdiction of
Incorporation or Organization)

 

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

 

 

 

950 Winter Street
Waltham, Massachusetts

 


02451

(Address of Principal Executive Offices)

 

(Zip Code)

 

Radius Health, Inc. 2011 Equity Incentive Plan

(Full Title of the Plan)

 

Robert E. Ward
President and Chief Executive Officer
950 Winter Street

Waltham, Massachusetts  02451
(Name and Address of Agent For Service)

 

(617) 551-4700

(Telephone Number, Including Area Code, of Agent For Service)

 

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 of the Exchange Act.

 

Large accelerated filer x

 

Accelerated filer o

Non-accelerated filer o

 

Smaller reporting company o

(Do not check if a smaller reporting company)

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

 

Title of Securities to
be Registered

 

Amount to be
Registered(1)

 

Proposed
Maximum
Offering
Price Per
Share

 

Proposed
Maximum
Aggregate
Offering Price

 

Amount of
Registration
Fee

 

Common Stock, $.0001 par value per share

 

5,300,000

(2)

$

51.76

(3)

$

274,328,000

(3)

$

27,625

 

 

 

 

 

 

 

 

 

 

 

 

(1)                                  In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

 

(2)                                  Consists of an additional 5,300,000 shares of common stock issuable under the Radius Health, Inc. 2011 Equity Incentive Plan (as amended and restated, the “2011 Plan”), pursuant to the terms of such plan.

 

(3)                                  Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act, and based upon the average of the high and low prices of the common stock, $.0001 par value per share (the “Common Stock”) of Radius Health, Inc. (the “Registrant”) as reported on the Nasdaq Global Market on August 4, 2016.

 

 

 


 

EXPLANATORY NOTE

 

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed for the purpose of registering an additional 5,300,000 shares of the Registrant’s Common Stock to be issued pursuant to the Registrant’s 2011 Plan for which Registration Statements of the Registrant on Form S-8 relating to the same employee benefit plan are effective.

 

STATEMENT OF INCORPORATION BY REFERENCE

 

This Registration Statement hereby incorporates by reference the contents of the Registration Statements on Form S-8, File Nos. 333-177800 and 333-195521, filed by the Registrant on November 7, 2011 and April 28, 2014, respectively, relating to the Registrant’s 2011 Plan, to the extent not otherwise amended or superseded by the contents hereof.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.          Incorporation of Documents by Reference.

 

The following documents, which have been filed with the Commission by the Registrant, pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, are hereby incorporated by reference in, and shall be deemed to be a part of, this Registration Statement:

 

·                   The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2015, filed with the Commission on February 25, 2016.

 

·                   The Registrant’s Proxy Statement on Schedule 14A, filed with the Commission on April 12, 2016.

 

·                   The Registrant’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2016, filed with the Commission on May 5, 2016, the Registrant’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2016, filed with the Commission on August 4, 2016, and the Registrant’s Amendment No. 1 to the Quarterly Report on Form 10-Q/A for the quarter ended June 30, 2016, filed with the Commission on August 9, 2016.

 

·                   The Registrant’s Current Reports on Form 8-K filed with the Commission on May 27, 2016, June 2, 2016, June 29, 2016, July 5, 2016, and July 19, 2016.

 

·                   The description of the Registrant’s Common Stock contained in its Registration Statement on Form 8-A, filed with the Commission on May 2, 2014, and any amendment or report filed with the Commission for the purpose of updating the description.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all 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 the filing of such documents. The Registrant is not, however, incorporating by reference any

 

2


 

documents or portions thereof, whether specifically listed above or filed in the future, that are not deemed “filed” with the Commission, including the Registrant’s Compensation Committee report and performance graph or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.

 

Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.  Under no circumstances will any information furnished under Items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless such Current Report on Form 8-K expressly provides to the contrary.

 

Item 8.  Exhibits.

 

The Exhibit Index immediately preceding the exhibits is incorporated by reference.

 

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 Waltham, state of Massachusetts, on August 11, 2016.

 

 

RADIUS HEALTH, INC.

 

 

 

By:

/s/ Robert E. Ward

 

 

Robert E. Ward

 

 

President and Chief Executive Officer

 

POWER OF ATTORNEY AND SIGNATURES

 

We, the undersigned officers and directors of Radius Health, Inc., hereby severally constitute and appoint Robert E. Ward and B. Nicholas Harvey, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in and about the premises, as full to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.

 

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 dates indicated.

 

Signature

 

Title

 

Date

 

 

 

 

 

/s/ Robert E. Ward

 

Director, President and Chief Executive Officer (Principal executive officer)

 

August 11 , 2016

Robert E. Ward

 

 

 

 

 

 

 

 

/s/ B. Nicholas Harvey

 

Chief Financial Officer (Principal financial and accounting officer)

 

August 11 , 2016

B. Nicholas Harvey

 

 

 

 

 

 

 

 

/s/ Kurt C. Graves

 

Chairman of the Board

 

August 11 , 2016

Kurt C. Graves

 

 

 

 

 

 

 

 

 

/s/ Alan H. Auerbach

 

Director

 

August 11 , 2016

Alan H. Auerbach

 

 

 

 

 

 

 

 

 

/s/ Willard H. Dere

 

Director

 

August 11 , 2016

Willard H. Dere

 

 

 

 

 

4


 

/s/ Catherine Friedman

 

Director

 

August 11 , 2016

Catherine Friedman

 

 

 

 

 

 

 

 

 

/s/ Ansbert K. Gadicke

 

Director

 

August 11 , 2016

Ansbert K. Gadicke

 

 

 

 

 

 

 

 

 

/s/ Jean-Pierre Garnier

 

Director

 

August 11 , 2016

Jean-Pierre Garnier

 

 

 

 

 

 

 

 

 

/s/ Owen Hughes

 

Director

 

August 11 , 2016

Owen Hughes

 

 

 

 

 

 

 

 

 

/s/ Anthony Rosenberg

 

Director

 

August 11 , 2016

Anthony Rosenberg

 

 

 

 

 

 

 

 

 

/s/ Debasish Roychowdhury

 

Director

 

August 11 , 2016

Debasish Roychowdhury

 

 

 

 

 

5


 

INDEX TO EXHIBITS

 

Number

 

Description

 

 

 

4.1(1)

 

Restated Certificate of Incorporation of the Registrant

 

 

 

4.2(2)

 

Amended and Restated By-Laws of the Registrant

 

 

 

5

 

Opinion of Latham & Watkins LLP, counsel to the Registrant

 

 

 

23.1

 

Consent of Latham & Watkins LLP (included in Exhibit 5)

 

 

 

23.2

 

Consent of Ernst & Young LLP

 

 

 

24

 

Power of attorney (included on the signature pages of this registration statement)

 

 

 

99.1(3)

 

Radius Health, Inc. 2011 Equity Incentive Plan (as amended and restated)

 

(1)                                  Previously filed with the Securities and Exchange Commission as Exhibit 3.1 to the Registrant’s Current Report on Form 8-K, filed on June 13, 2014 (File No. 001-35726) and incorporated herein by reference.

 

(2)                                  Previously filed with the Securities and Exchange Commission as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K, filed on June 13, 2014 (File No. 001-35726) and incorporated herein by reference.

 

(3)                                  Previously filed with the Securities and Exchange Commission as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K, filed on May 27, 2016 (File No. 001-35726) and incorporated herein by reference.

 

6

Exhibit 5

 

 

John Hancock Tower, 27th Floor

 

200 Clarendon Street

 

Boston, Massachusetts 02116

 

Tel: +1.617.948.6000 Fax: +1.617.948.6001

 

www.lw.com

 

 

GRAPHIC

FIRM / AFFILIATE OFFICES

 

 

 

 

Barcelona

Moscow

 

Beijing

Munich

 

Boston

New Jersey

 

Brussels

New York

 

Century City

Orange County

 

Chicago

Paris

 

Dubai

Riyadh

 

Düsseldorf

Rome

 

Frankfurt

San Diego

 

Hamburg

San Francisco

 

Hong Kong

Shanghai

 

Houston

Silicon Valley

 

London

Singapore

 

Los Angeles

Tokyo

 

Madrid

Washington, D.C.

 

Milan

 

 

August 11, 2016

 

Radius Health, Inc.

950 Winter Street

Waltham, MA 02451

 

Re:            Registration Statement on Form S-8; 5,300,000 shares of Radius Health, Inc. Common Stock, $.0001 par value per share

 

Ladies and Gentlemen:

 

We have acted as special counsel to Radius Health, Inc., a Delaware corporation (the “ Company ”), in connection with the proposed issuance by the Company of up to 5,300,000 shares of common stock of the Company, $.0001 par value per share (the “ Shares ”), issuable under the Radius Health, Inc. 2011 Equity Incentive Plan, as amended and restated (the “ Plan ”). The Shares are included in a registration statement on Form S-8 under the Securities Act of 1933, as amended (the “ Act ”), filed with the Securities and Exchange Commission (the “ Commission ”) on August 11, 2016 (the “ Registration Statement ”).  This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or related prospectus, other than as expressly stated herein with respect to the issue of the Shares.

 

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter.  With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters.  We are opining herein as to the General Corporation Law of the State of Delaware (the “ DGCL ”), and we express no opinion with respect to any other laws.

 


 

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the purchasers, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plan, assuming in each case that the individual grants or awards under the Plan are duly authorized by all necessary corporate action and duly granted or awarded and exercised in accordance with the requirements of law and the Plan (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable.  In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

 

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act.  We consent to your filing this opinion as an exhibit to the Registration Statement.  In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

 

 

 

Very truly yours,

 

 

 

/s/ Latham & Watkins LLP

 

2

Exhibit 23.2

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the Radius Health, Inc. 2011 Equity Incentive Plan, as amended and restated, of our reports dated February 25, 2016, with respect to the financial statements of Radius Health, Inc. and the effectiveness of internal control over financial reporting of Radius Health, Inc. included in its Annual Report on Form 10-K for the year ended December 31, 2015 filed with the Securities and Exchange Commission.

 

 

/s/ Ernst & Young LLP

Boston, Massachusetts

 

August 11 , 2016