As filed with the Securities and Exchange Commission
on March 1, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Albireo Pharma, Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
90-0136863 |
(State
or other jurisdiction of incorporation
or organization) |
|
(I.R.S.
Employer Identification No.) |
| |
|
|
| 53
State Street, 19th Floor, Boston, Massachusetts |
|
02109 |
| (Address
of principal executive offices) |
|
(Zip
code) |
Albireo Pharma, Inc. 2018 Equity Incentive
Plan, as amended
(Full title of the plan)
Jason G. Duncan
Chief Legal Officer, General Counsel and Secretary
Albireo Pharma, Inc.
53 State Street, 19th Floor
Boston, Massachusetts 02109
(857) 254-5555
(Name, address and telephone number, including
area code, of agent for service)
Copy to:
| Megan
N. Gates, Esq. |
| John
P. Condon, Esq. |
| Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C. |
| One
Financial Center |
| Boston,
Massachusetts 02111 |
| (617)
542-6000 |
| Facsimile:
(617) 542-2241 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
Accelerated filer |
¨ |
| |
|
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|
| Non-accelerated filer |
x |
Smaller reporting company |
x |
| |
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| |
|
Emerging growth company |
¨ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
EXPLANATORY NOTE
This Registration Statement registers 3,000,000
additional shares (the “Shares”) of common stock, par value $0.01 per share, of the Registrant (the “Common Stock”)
reserved for issuance under the Registrant’s 2018 Equity Incentive Plan, as amended (the “Plan”), approved by the Registrant’s
stockholders at the 2021 Annual Meeting of Stockholders held on June 17, 2021. In accordance with the instructional Note to Part I
of Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”), the information specified by
Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 with respect to the Shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents
by Reference. |
The following documents filed by the Registrant
with the Commission are incorporated herein by reference:
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 filed with the Commission on March 1, 2022;
(b) the
Registrant’s Current Report on Form 8-K filed with the Commission on January 5, 2022, as amended by Amendment
No. 1 to the Registrant’s Current
Report on Form 8-K/A filed with the Commission on January 5, 2022 (except for the information furnished under Items 2.02 or 7.01
and the exhibits furnished thereto); and
(c)
the description of the Registrant’s Common Stock which is contained in the Registrant’s Registration Statement on Form 8-A
filed with the Commission on May 8, 2007, including any amendment or report filed for the purpose of updating such description.
The SEC file number for each of the documents
listed above is 001-33451.
All
reports and other documents filed by the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended (other than Current Reports furnished under Item 2.02 or Item 7.01 of Form 8-K
and exhibits furnished on such form that relate to such items), 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 herein and to be part hereof from the date of filing of such reports and documents. 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.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts
and Counsel. |
None.
| Item 6. | Indemnification of Directors
and Officers. |
The Registrant’s restated certificate of
incorporation and its restated bylaws provide that the Registrant shall indemnify its directors and officers to the fullest extent not
prohibited by the Delaware General Corporation Law or any other applicable law, except that the Registrant is not required to indemnify
any director or executive officer in connection with any proceeding (or part thereof) initiated by such person unless (i) such indemnification
is expressly required to be made by law, (ii) the proceeding was authorized by the Registrant’s board of directors, (iii) the
Registrant provides such indemnification, in its sole discretion, pursuant to the powers vested in the Registrant under the Delaware
General Corporation Law or any other applicable law, or (iv) such indemnification is required to be made under the enforcement provisions
of the Registrant’s restated bylaws.
Section 145 of the Delaware General Corporation
Law permits a corporation to indemnify any director or officer of the corporation against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with any action, suit or proceeding brought
by reason of the fact that such person is or was a director or officer of the corporation, if such person acted in good faith and in
a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, and, with respect to
any criminal action or proceeding, if he or she had no reasonable cause to believe his or her conduct was unlawful. In a derivative
action (i.e., one brought by or on behalf of the corporation), indemnification may be provided only for expenses actually and reasonably
incurred by any director or officer in connection with the defense or settlement of such an action or suit if such person acted in good
faith and in a manner that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that
no indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to the
extent that the Delaware Chancery Court or the court in which the action or suit was brought shall determine that such person is fairly
and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the
Delaware General Corporation Law, Article Sixth of the Registrant’s restated certificate of incorporation eliminates the liability
of a director to the Registrant or its stockholders for monetary damages for such a breach of fiduciary duty as a director to the fullest
extent under applicable law, which does not include liabilities arising:
·
from any breach of the director’s duty of loyalty to the Registrant or its stockholders;
·
from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
·
under Section 174 of the Delaware General Corporation Law; and
·
from any transaction from which the director derived an improper personal benefit.
The Registrant has entered into indemnification
agreements with its directors and executive officers, in addition to the indemnification provided in its restated certificate of incorporation
and its restated bylaws, and intends to enter into indemnification agreements with any new directors and executive officers in the future. The
Registrant has purchased and intends to maintain insurance on behalf of any person who is or was a director or officer against any loss
arising from any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions.
| Item 7. | Exemption from Registration
Claimed. |
Not applicable.
Exhibit
Number |
|
Exhibit Description |
|
Filed
Herewith |
|
Incorporated by
Reference herein
from Form or
Schedule |
|
Filing Date |
|
SEC File/
Reg. Number |
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4.1.1 |
|
Restated
Certificate of Incorporation, as amended, of the Registrant. |
|
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|
10-K
(Exhibit 3.1) |
|
3/1/2022 |
|
001-33451 |
| |
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4.2 |
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Amended
and Restated Bylaws of the Registrant. |
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S-8
(Exhibit 4.2) |
|
7/6/2007 |
|
333-144407 |
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4.3 |
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Form of
common stock certificate. |
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10-K
(Exhibit 4.1) |
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12/22/2016 |
|
001-33451 |
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4.4 |
|
Form of
Warrant issued by the Registrant to Hercules Capital, Inc. |
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8-K
(Exhibit 10.2) |
|
6/9/2020 |
|
001-33451 |
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5.1 |
|
Opinion of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. with respect to the legality of the securities being registered. |
|
X |
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23.1 |
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Consent of Ernst & Young LLP. |
|
X |
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23.2 |
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Consent of Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1). |
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X |
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24.1 |
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Powers of Attorney (included on the
signature page to this registration statement). |
|
X |
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99.1 |
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2018
Equity Incentive Plan, as amended. |
|
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|
8-K
(Exhibit 10.1) |
|
6/21/2021 |
|
001-33451 |
| |
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107 |
|
Filing Fee Table. |
|
X |
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus
required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus
any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof)
which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee”
table in the effective Registration Statement;
(iii) To include any material
information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to
such information in the Registration Statement;
Provided,
however, that paragraphs (1)(i) and (1)(ii) of this section do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining
any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means
of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the indemnification
provisions summarized in Item 6, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
SIGNATURES
The
Registrant. 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 Boston, Commonwealth of Massachusetts, on March 1,
2022.
| |
ALBIREO PHARMA, INC. |
| |
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|
| |
By: |
/s/ Ronald H.W.
Cooper |
| |
|
Ronald H.W. Cooper |
| |
|
President and Chief Executive Officer |
SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of
Albireo Pharma, Inc., hereby severally constitute and appoint Ronald H.W. Cooper, Simon N.R. Harford and Jason G. Duncan, 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 or her and in his or her name, place and stead, and in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration Statement on Form S-8 of Albireo Pharma, Inc.,
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 or she 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 or her 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 below by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
/s/ Ronald H.W. Cooper |
|
President, Chief Executive
Officer and
Director |
|
March 1, 2022 |
| Ronald H.W. Cooper |
|
(principal executive officer) |
|
|
| |
|
|
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| /s/
Simon N.R. Harford |
|
Chief Financial Officer
and Treasurer |
|
March 1, 2022 |
| Simon N.R. Harford |
|
(principal financial officer
and |
|
|
| |
|
principal accounting officer) |
|
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| |
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| /s/
David Chiswell, Ph.D. |
|
Chairman of the Board of
Directors |
|
March 1, 2022 |
| David Chiswell, Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/
Anne Klibanski, M.D. |
|
Director |
|
March 1, 2022 |
| Anne Klibanski, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/
Michael Gutch, Ph.D. |
|
Director |
|
March 1, 2022 |
| Michael Gutch, Ph.D. |
|
|
|
|
| /s/
Stephanie S. Okey, M.S. |
|
Director |
|
March 1,
2022 |
| Stephanie S. Okey, M.S. |
|
|
|
|
| |
|
|
|
|
| /s/
Davey S. Scoon |
|
Director |
|
March 1, 2022 |
| Davey S. Scoon |
|
|
|
|
Exhibit 5.1
|
|
 |
One Financial
Center
Boston,
MA 02111
617 542
6000
mintz.com
|
March 1, 2022
Albireo Pharma, Inc.
53 State Street, 19th Floor
Boston, Massachusetts 02109
Ladies and Gentlemen:
We
have acted as legal counsel to Albireo Pharma, Inc., a Delaware corporation (the “Company”), in connection with the preparation
and filing with the Securities and Exchange Commission (the “Commission”) of a Registration Statement on Form S-8 (the
“Registration Statement”), pursuant to which the Company is registering the issuance under the Securities Act of 1933, as
amended (the “Securities Act”), of an aggregate of 3,000,000 shares (the “Shares”)
of the Company’s common stock, $0.01 par value per share (the “Common Stock”) that may be issued pursuant to the Company’s
2018 Equity Incentive Plan, as amended (the “Plan”). This opinion is being rendered in connection with the filing of the Registration
Statement with the Commission. All capitalized terms used herein and not otherwise defined shall have the respective meanings given to
them in the Registration Statement.
In connection with this opinion,
we have examined the Company’s Restated Certificate of Incorporation, as amended, and Amended and Restated Bylaws, each as currently
in effect; such other records of the corporate proceedings of the Company and certificates of the Company’s officers as we have
deemed relevant; and the Registration Statement and the exhibits thereto.
In our examination, we have
assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of the originals of such
copies, and the truth and correctness of any representations and warranties contained therein. In addition, we have assumed that the Company
will receive any required consideration in accordance with the terms of the Plan.
Our opinion expressed herein
is limited to the General Corporation Law of the State of Delaware and we express no opinion with respect to the laws of any other jurisdiction.
No opinion is expressed herein with respect to the qualification of the Shares under the securities or blue sky laws of any state or any
foreign jurisdiction.
Please note that we are opining
only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon
currently existing statutes, rules, regulations and judicial decisions, and we disclaim any obligation to advise you of any change in
any of these sources of law or subsequent legal or factual developments which might affect any matters or opinions set forth herein.
Based upon the foregoing,
we are of the opinion that the Shares, when issued and delivered in accordance with the terms of the Plan, will be validly issued, fully
paid and non-assessable.
Boston London Los
Angeles New York San Diego San
Francisco Washington
MINTZ,
LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
MINTZ
March 1, 2022
Page 2 | |  |
We understand that you wish
to file this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of
Regulation S-K promulgated under the Securities Act, and we hereby consent thereto. In giving this consent, we do not 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 promulgated thereunder.
| Very truly yours, |
| | |
| | /s/ Mintz, Levin, Cohn, Ferris, |
| | Glovsky and Popeo, P.C. |
| | |
| | Mintz, Levin, Cohn, Ferris, |
| | Glovsky and Popeo, P.C. |