As filed with the Securities and Exchange Commission on December 18, 2017
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)
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Delaware
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90-0136863
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(State or other jurisdiction of incorporation
or organization)
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(I.R.S. Employer Identification No.)
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10 Post Office Square, Suite 502 South, Boston, Massachusetts
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02109
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(Address of principal executive offices)
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(Zip code)
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2017 Inducement Equity Incentive Plan
(Full title of the plan)
Thomas A. Shea
Chief
Financial Officer and Treasurer
Albireo Pharma, Inc.
10 Post Office Square, Suite 502 South
Boston, Massachusetts 02109
(857)
254-5555
(Name, address and telephone number, including area code, of agent for service)
Copy to:
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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
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Peter A. Zorn, Esq.
Chief Corporate Officer, General Counsel and Secretary
Albireo Pharma, Inc.
10
Post Office Square, Suite 502 South
Boston, Massachusetts 02109
(857)
254-5555
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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.
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☒
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Emerging growth company
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☐
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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. ☐
CALCULATION OF
REGISTRATION FEE
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Title of
Securities to be
Registered
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Amount to be
Registered (1)
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Proposed
Maximum
Offering Price
Per
Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration Fee
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Common Stock, $0.01 par value per share
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150,000 shares
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$23.28 (2)
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$3,492,000 (2)
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$434.76
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(1)
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The number of shares of common stock, par value $0.01 per share (“Common Stock”), of Albireo Pharma, Inc. (the “Registrant”) stated above consists of the aggregate number of shares which may be sold
upon the exercise of options or issuance of stock-based awards which may hereafter be granted under the Registrant’s 2017 Inducement Equity Incentive Plan (the “Plan”). The maximum number of shares which may be sold upon the exercise
of such options or issuance of stock-based awards granted under the Plan is subject to adjustment in accordance with certain antidilution and other provisions of the Plan. Accordingly, pursuant to Rule 416 under the Securities Act of 1933, as
amended (the “Securities Act”), this Registration Statement covers, in addition to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after the operation of any such
antidilution and other provisions.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) promulgated under the Securities Act. The offering price per share and the aggregate offering
price for shares reserved for future grant or issuance under the Plan are based on the average of the high and the low price of the Registrant’s Common Stock as reported on The Nasdaq Capital Market as of a date (December 14, 2017) within five
business days prior to filing this Registration Statement.
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EXPLANATORY NOTE
This Registration Statement registers 150,000 shares of common stock, par value $0.01 per share, of the Registrant (the “Common
Stock”) reserved for issuance under the Registrant’s 2017 Inducement Equity Incentive Plan (the “Plan”). This Registration Statement registers additional securities of the same class as other securities for which a registration
statement filed on Form
S-8
of the Registrant relating to an employee benefit plan is effective (File
No. 333-215264).
The information contained in the
Registrant’s registration statement on Form
S-8
(File
No. 333-215264),
except for Item 8 “Exhibits,” is hereby incorporated by reference
pursuant to General Instruction E of Form
S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
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Exhibit
Number
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Exhibit Description
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Filed
Herewith
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Incorporated by
Reference herein
from
Form or
Schedule
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Filing Date
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SEC File/
Reg. Number
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4.1.1
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Restated Certificate of Incorporation of the Registrant, as amended.
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S-3
(Exhibit 4.1.1)
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10/13/2017
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333-220958
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4.1.2
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Certificate of Designation of Series A Convertible Preferred Stock of the Registrant, filed with the Secretary of State of the State of Delaware
on May 17, 2011.
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8-K
(Exhibit 4.6)
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5/19/2011
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001-33451
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4.1.3
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Certificate of Designation of Series B Convertible Preferred Stock of the Registrant, filed with the Secretary of State of the State of Delaware
on June 26, 2012.
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8-K
(Exhibit 4.8)
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6/27/2012
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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)
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7/6/2007
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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
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001-33451
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5.1
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with respect to the legality of the securities being registered.
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X
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23.1
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Consent of Ernst & Young LLP (United States).
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X
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23.2
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Consent of Ernst & Young LLP (United Kingdom).
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X
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23.3
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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).
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X
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99.1
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2017 Inducement Equity Incentive Plan.
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10-Q
(Exhibit 10.1)
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11/14/2017
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001-33451
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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 December 18, 2017.
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ALBIREO PHARMA, INC.
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By:
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/s/ Ronald H.W. Cooper
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Ronald H.W. Cooper
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President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors of Albireo Pharma, Inc., hereby severally constitute and appoint Ronald H.W. Cooper, Thomas A. Shea
and Peter A. Zorn, 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 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 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 below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Ronald H.W. Cooper
Ronald H.W. Cooper
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President, Chief Executive Officer and Director (principal executive officer)
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December 18, 2017
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/s/ Thomas A. Shea
Thomas A. Shea
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Chief Financial Officer (principal financial officer and principal accounting officer)
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December 18, 2017
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/s/ David Chiswell, Ph.D.
David Chiswell, Ph.D.
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Chairman of the Board of Directors
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December 18, 2017
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/s/ Julia R. Brown
Julia R. Brown
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Director
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December 18, 2017
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/s/ Michael Gutch, Ph.D.
Michael Gutch, Ph.D.
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Director
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December 18, 2017
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/s/ Roger A. Jeffs, Ph.D.
Roger A. Jeffs, Ph.D.
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Director
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December 18, 2017
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/s/ Heather Preston, M.D.
Heather Preston, M.D.
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Director
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December 18, 2017
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/s/ Davey S. Scoon
Davey S. Scoon
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Director
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December 18, 2017
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Exhibit 5.1
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One Financial Center
Boston, MA 02111
617-542-6000
617-542-2241
fax
www.mintz.com
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December 18, 2017
Albireo Pharma, Inc.
10 Post Office Square, Suite 502 South
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 150,000 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 2017 Inducement Equity Incentive Plan (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.
Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C.
B
OSTON
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ONDON
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OS
A
NGELES
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N
EW
Y
ORK
| S
AN
D
IEGO
| S
AN
F
RANCISCO
| S
TAMFORD
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ASHINGTON
M
INTZ
, L
EVIN
, C
OHN
, F
ERRIS
,
G
LOVSKY
AND
P
OPEO
, P.C.
December 18, 2017
Page 2
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.
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.