As filed with the Securities and Exchange Commission on July 27, 2018

 

Registration No. 333-

  

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

FORM S-8

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

 

Intercept Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware

(State or other jurisdiction

of incorporation or organization)

 

22-3868459

(IRS Employer Identification No.)

 

 

10 Hudson Yards, 37th Floor

New York, NY 10001

(Address of Principal Executive Offices and Zip Code)

 

 

 

Intercept Pharmaceuticals, Inc. 2012 Equity Incentive Plan

(Full title of the plan)

 

 

 

Ryan T. Sullivan

General Counsel and Secretary

Intercept Pharmaceuticals, Inc.

10 Hudson Yards, 37th Floor

New York, NY 10001

(646) 747-1000

(Name, address and telephone number, including area code, of agent for service)

 

 

 

Copy to:

 

Graham Robinson

Skadden, Arps, Slate, Meagher & Flom LLP

500 Boylston Street

Boston, MA 02116

(617) 573-4800

 

 

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 x   Accelerated filer ¨
Non-accelerated filer ¨   Smaller reporting company ¨
(Do not check if a smaller reporting company)   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. ¨

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of securities to be registered

Amount to be

registered(1)

Proposed maximum

offering

price per share(2)

Proposed maximum

aggregate

offering price(2)

Amount of

registration fee

Common Stock, par value $0.001 per share (“Common Stock”), reserved for future grant under the Registrant’s 2012 Equity Incentive Plan 1,080,859 $94.945 $102,622,157.76 $12,776.46

 

(1)Represents (i) 1,010,693 additional shares issuable under the Registrant’s 2012 Equity Incentive Plan (the “Plan”) by reason of the automatic increase provisions of the Plan and (ii) 70,166 shares underlying certain equity awards previously issued under the Plan that have been forfeited or cancelled. Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock that become issuable under the Plan by reason of any stock split, stock dividend, combination, recapitalization or other similar transaction effected without receipt of consideration that results in an increase in the number of outstanding shares of the Registrant’s Common Stock.

 

(2)Estimated pursuant to Rule 457(h) and Rule 457(c) under the Securities Act, solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Registrant’s Common Stock on July 20, 2018, as reported on the Nasdaq Global Select Market.

 

 

  

 

 

 

EXPLANATORY NOTE

 

Intercept Pharmaceuticals, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 for the purpose of registering 1,080,859 shares of its Common Stock, par value $0.001 per share (the “Common Stock”), issuable to eligible persons under the Registrant’s 2012 Equity Incentive Plan, which shares of Common Stock are in addition to the shares of Common Stock registered on the Registrant’s Registration Statements on Form S-8 filed with the U.S. Securities and Exchange Commission (“SEC”) on November 7, 2012 (File No. 333-184810), April 22, 2013 (File No. 333-188064), August 7, 2015 (File No. 333-206247) and May 10, 2017 (File No. 333-217863).

 

Pursuant to General Instruction E to Form S-8, the contents of the Registrant’s Registration Statements on Form S-8 filed with the SEC on November 7, 2012 (File No. 333-184810), April 22, 2013 (File No. 333-188064), August 7, 2015 (File No. 333-206247) and May 10, 2017 (File No. 333-217863) are incorporated by reference into this Registration Statement on Form S-8.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 8. Exhibits.

 

 

       

Incorporated herein by reference

Exhibit
Number

 

Exhibit Description

 

Form†

 

Exhibit

 

Filing Date

4.1   Restated Certificate of Incorporation, as amended   Form 10-Q   3.1   August 9, 2016
4.2   Restated Bylaws   Form 8-K   3.1   February 17, 2016
4.3   Form of Common Stock Certificate   Form S-8(1)   4.3   November 7, 2012
4.4   Indenture, dated as of July 6, 2016, between the Registrant and U.S. Bank National Association, as trustee   Form 8-K   4.1   July 6, 2016
4.5   First Supplemental Indenture (including the Form of Note), dated as of July 6, 2016, between the Registrant and U.S. Bank National Association, as trustee   Form 8-K   4.2   July 6, 2016
4.6   Securities Purchase Agreement, dated April 4, 2018, between the Registrant and the purchasers named therein   Form 8-K   10.1   April 10, 2018
5.1*   Opinion of Skadden, Arps, Slate, Meagher & Flom LLP            
23.1*   Consent of Independent Registered Public Accounting Firm            
23.2*   Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained in Exhibit 5.1 to this Registration Statement on Form S-8)            
24.1*   Power of Attorney (included in signature page of this Registration Statement on Form S-8)            
99.1   Intercept Pharmaceuticals, Inc. 2012 Equity Incentive Plan   Form S-1(2)   10.2.1   September 27, 2012

  

 

*Filed herewith.
Unless otherwise specified, the File No. is 001-35668.
(1)Registration Statement on Form S-8 filed by the Registrant, Registration No. 333-184810.
(2)Registration Statement on Form S-1 filed by the Registrant, Registration No. 333-183706.

 

 

 

 

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 New York, State of New York, on July 27, 2018.

 

  INTERCEPT PHARMACEUTICALS, INC.
       
       
  By: /s/ Mark Pruzanski, M.D.
    Name: Mark Pruzanski, M.D.
    Title: President and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Mark Pruzanski, M.D. and Sandip Kapadia, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her, and in his or her name, place and stead, 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 all other documents in connection therewith, with the Securities and Exchange Commission, granting unto each said attorney-in-fact and agent full power and authority to do and perform each and every act and thing required or necessary to be done in and about the premises, as fully and to all intents and purposes as the undersigned could do in person, and 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/ Mark Pruzanski, M.D.   President, Chief Executive Officer and Director   July 27, 2018
Mark Pruzanski, M.D.   (Principal Executive Officer)    
         
 /s/ Sandip Kapadia   Chief Financial Officer and Treasurer (Principal   July 27, 2018
Sandip Kapadia   Financial Officer and Principal Accounting Officer)    
         

/s/ Paolo Fundarò 

  Chairman of the Board of Directors   July 27, 2018
Paolo Fundarò        
         

/s/ Srinivas Akkaraju, M.D., Ph.D. 

  Director   July 27, 2018
Srinivas Akkaraju, M.D., Ph.D.        
         

/s/ Luca Benatti, Ph.D. 

  Director   July 27, 2018
Luca Benatti, Ph.D.        
         

/s/ Daniel Bradbury 

  Director   July 27, 2018
Daniel Bradbury        
         

/s/ Keith Gottesdiener, M.D. 

  Director   July 27, 2018
Keith Gottesdiener, M.D.        
         

/s/ Nancy Miller-Rich 

  Director   July 27, 2018
Nancy Miller-Rich        
         

/s/ Gino Santini 

  Director   July 27, 2018
Gino Santini        
         

/s/ Glenn Sblendorio 

  Director   July 27, 2018
Glenn Sblendorio        
         

/s/ Daniel Welch 

  Director   July 27, 2018
Daniel Welch        

 

 

 

 

EXHIBIT INDEX

 

 

       

Incorporated herein by reference

Exhibit
Number

 

Exhibit Description

 

Form†

 

Exhibit

 

Filing Date

4.1   Restated Certificate of Incorporation, as amended   Form 10-Q   3.1   August 9, 2016
4.2   Restated Bylaws   Form 8-K   3.1   February 17, 2016
4.3   Form of Common Stock Certificate   Form S-8(1)   4.3   November 7, 2012
4.4   Indenture, dated as of July 6, 2016, between the Registrant and U.S. Bank National Association, as trustee   Form 8-K   4.1   July 6, 2016
4.5   First Supplemental Indenture (including the Form of Note), dated as of July 6, 2016, between the Registrant and U.S. Bank National Association, as trustee   Form 8-K   4.2   July 6, 2016
4.6   Securities Purchase Agreement, dated April 4, 2018, between the Registrant and the purchasers named therein   Form 8-K   10.1   April 10, 2018
5.1*   Opinion of Skadden, Arps, Slate, Meagher & Flom LLP            
23.1*   Consent of Independent Registered Public Accounting Firm            
23.2*   Consent of Skadden, Arps, Slate, Meagher & Flom LLP (contained in Exhibit 5.1 to this Registration Statement on Form S-8)            
24.1*   Power of Attorney (included in signature page of this Registration Statement on Form S-8)            
99.1   Intercept Pharmaceuticals, Inc. 2012 Equity Incentive Plan   Form S-1(2)   10.2.1   September 27, 2012

  

 

*Filed herewith.
Unless otherwise specified, the File No. is 001-35668.
(1)Registration Statement on Form S-8 filed by the Registrant, Registration No. 333-184810.
(2)Registration Statement on Form S-1 filed by the Registrant, Registration No. 333-183706.

 

 

 

Exhibit 5.1

 

 

[Letterhead of Skadden, Arps, Slate, Meagher & Flom LLP]

 

 

 

 

 

July 27, 2018

 

 

Intercept Pharmaceuticals, Inc.

10 Hudson Yards, 37th Floor
New York, New York 10001

 

Re:Intercept Pharmaceuticals, Inc.

Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as special counsel to Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), on the date hereof, relating to the registration by the Company of up to 1,080,859 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable pursuant to the Intercept Pharmaceuticals, Inc. 2012 Equity Incentive Plan (the “Plan”).

 

This opinion is being furnished at the request of the Company in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.

 

In rendering the opinion stated herein, we have examined and relied upon the following:

  

(a)       the Registration Statement;

 

(b)       the Plan;

 

(c)       an executed copy of a certificate of the General Counsel and Secretary of the Company, dated the date hereof (the “Secretary’s Certificate”);

 

(d)       a copy of the Company’s Restated Certificate of Incorporation, as amended, certified by the Secretary of State of the State of Delaware and certified pursuant to the Secretary’s Certificate;

 

 

 

Intercept Pharmaceuticals, Inc.

July 27, 2018

Page 2

 

 

(e)       a copy of the Company’s Restated Bylaws, as in effect as of the date hereof and certified pursuant to the Secretary’s Certificate; and

 

(f)       a copy of certain resolutions of the Board of Directors of the Company, certified pursuant to the Secretary’s Certificate.

 

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for the opinion stated below, including the facts and conclusions set forth in the Secretary’s Certificate.

 

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, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photostatic copies, and the authenticity of the originals of such copies. In making our examination of executed documents, we have assumed that the parties thereto, other than the Company, had the power, corporate or other, to enter into and perform all obligations thereunder and have also assumed the due authorization by all requisite action, corporate or other, and the execution and delivery by such parties of such documents and the validity and binding effect thereof on such parties. As to any facts relevant to the opinion stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others and of public officials.

 

In rendering the opinion stated herein, we have also assumed that (i) an appropriate account statement evidencing Shares credited to an eligible individual’s account maintained with the Company’s transfer agent has been or will be issued by the Company’s transfer agent, (ii) the issuance of Shares will be properly recorded in the books and records of the Company and (iii) each award agreement under which incentive stock options, non-qualified options, stock grants or stock-based awards are granted pursuant to the Plan will be consistent with the Plan and will be duly authorized, executed and delivered by the parties thereto.

 

We do not express any opinion with respect to the laws of any jurisdiction other than the General Corporation Law of the State of Delaware (the “DGCL”).

 

Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that the Shares have been duly authorized by all requisite corporate action on the part of the Company under the DGCL and when the Shares are issued to the participants in accordance with the terms and conditions of the Plan and the applicable award agreement for consideration in an amount at least equal to the par value of such Shares, the Shares will be validly issued, fully paid and nonassessable.

 

 

 

Intercept Pharmaceuticals, Inc.

July 27, 2018

Page 3

 

 

We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the General Rules and Regulations under the Securities Act. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.

 

 

  Very truly yours,
   
  /s/ Skadden, Arps, Slate, Meagher & Flom LLP

 

RJD

 

 

 

 

 

 

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors

Intercept Pharmaceuticals, Inc.:

 

We consent to the incorporation by reference in the registration statement on Form S-8 of Intercept Pharmaceuticals, Inc. of our reports dated February 28, 2018, with respect to the consolidated balance sheets of Intercept Pharmaceuticals, Inc. and subsidiaries (the “Company”) as of December 31, 2017 and 2016, and the related consolidated statements of operations, comprehensive loss, changes in stockholders’ equity, and cash flows for each of the years in the three year period ended December 31, 2017, and the related notes (collectively, the “consolidated financial statements”), and the effectiveness of internal control over financial reporting as of December 31, 2017, which reports appear in the December 31, 2017 annual report on Form 10-K of Intercept Pharmaceuticals, Inc.

 

/s/ KPMG LLP

 

New York, New York
July 27, 2018