As filed with the Securities and Exchange Commission on December 9, 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
Intercept Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 22-3868459 |
| (State or other jurisdiction of | (I.R.S. Employer Identification No.) |
| incorporation or organization) |
| 305 Madison Avenue, Morristown, NJ | 07960 |
| (Address of Principal Executive Offices) | (Zip Code) |
Intercept Pharmaceuticals, Inc. Amended and Restated Equity Incentive Plan
(Full title of the plan)
Jared Freedberg
General Counsel
Intercept Pharmaceuticals, Inc.
305 Madison Avenue
Morristown, NJ 07960
| (646) 747-1000 |
(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
with a copy to:
Timothy F. Nelson
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, 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 x |
| Non-accelerated filer ¨ | 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. ¨
EXPLANATORY NOTE
Intercept Pharmaceuticals, Inc. (the “Registrant”) is filing this Registration Statement on Form S-8 for the purpose of registering 1,884,938 shares of its Common Stock, par value $0.001 per share (“Common Stock”), issuable to eligible persons under the Registrant’s Amended and Restated 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 Securities and Exchange Commission on November 7, 2012 (File No. 333-184810), April 22, 2013 (File No. 333-188064), August 7, 2015 (File No. 333-206247), May 10, 2017 (File No. 333-217863), July 27, 2018 (File No. 333-226405), August 13, 2019 (File No. 333-233248), August 17, 2020 (File No. 333-248083), and September 29, 2021 (File No. 333-259892), the contents of all of which are incorporated by reference into this Registration Statement on Form S-8 pursuant to General Instruction E to Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits.
* 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.
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 Morristown, State of New Jersey, on December 9, 2022.
| INTERCEPT PHARMACEUTICALS, INC. | ||
| By: | /s/ Jerome Durso | |
| Name: | Jerome Durso | |
| Title: | President and Chief Executive Officer | |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Jerome Durso, Andrew Saik, Rocco Venezia, Jared Freedberg, Jose Truzman, and Edward Mahaney-Walter, 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 date indicated.
| Signature | Title | Date | ||
| /s/ Jerome Durso | President, Chief Executive Officer, and | December 9, 2022 | ||
| Jerome Durso | Director (Principal Executive Officer) | |||
| /s/ Andrew Saik | Chief Financial Officer | December 9, 2022 | ||
| Andrew Saik | (Principal Financial Officer) | |||
| /s/ Rocco Venezia | Chief Accounting Officer | December 9, 2022 | ||
| Rocco Venezia | (Principal Accounting Officer) | |||
| /s/ Paolo Fundarò | Chairman of the Board of Directors | December 9, 2022 | ||
| Paolo Fundarò |
| /s/ Srinivas Akkaraju, M.D., Ph.D. | Director | December 9, 2022 | ||
| Srinivas Akkaraju, M.D., Ph.D. | ||||
| /s/ Luca Benatti, Ph.D. | Director | December 9, 2022 | ||
| Luca Benatti, Ph.D. | ||||
| /s/ Daniel Bradbury | Director | December 9, 2022 | ||
| Daniel Bradbury | ||||
| /s/ Keith Gottesdiener, M.D. | Director | December 9, 2022 | ||
| Keith Gottesdiener, M.D. | ||||
| /s/ Nancy Miller-Rich | Director | December 9, 2022 | ||
| Nancy Miller-Rich | ||||
| /s/ Mark Pruzanski, M.D. | Director | December 9, 2022 | ||
| Mark Pruzanski, M.D. | ||||
| /s/ Dagmar Rosa-Bjorkeson | Director | December 9, 2022 | ||
| Dagmar Rosa-Bjorkeson | ||||
| /s/ Gino Santini | Director | December 9, 2022 | ||
| Gino Santini | ||||
| /s/ Glenn Sblendorio | Director | December 9, 2022 | ||
| Glenn Sblendorio |
Exhibit 5.1
Skadden, Arps, Slate, Meagher & Flom llp
| One Manhattan West
New York, NY 10001 ________
TEL: (212) 735-3000 FAX: (212) 735-2000
www.skadden.com
December 9, 2022 |
FIRM/AFFILIATE
----------- BOSTON CHICAGO HOUSTON LOS ANGELES PALO ALTO WASHINGTON, D.C. WILMINGTON ----------- BEIJING BRUSSELS FRANKFURT HONG KONG LONDON MUNICH PARIS SÃO PAULO SEOUL SHANGHAI SINGAPORE TOKYO TORONTO |
Intercept Pharmaceuticals, Inc.
305 Madison Avenue
Morristown, New Jersey 07960
| Re: | Intercept Pharmaceuticals, Inc. Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as special United States counsel to Intercept Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the Company's registration statement on Form S-8 (together with the exhibits thereto, the “Registration Statement”) to be filed on the date hereof with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Securities Act”). The Registration Statement relates to the registration of 1,884,938 shares (the “Shares”) of common stock, par value $0.001 per share, of the Company available for future issuance under the Intercept Pharmaceuticals, Inc. Amended and Restated Equity Incentive Plan (the “Plan”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K of the General Rules and Regulations of the Commission promulgated under the Securities Act (the “Rules and Regulations”).
In rendering the opinion stated herein, we have examined and relied upon the following:
(a) the Registration Statement in the form to be filed with the Commission on the date hereof;
(b) the Plan;
Intercept Pharmaceuticals, Inc. December 9, 2022 Page 2 |
(c) an executed copy of a certificate of Edward Mahaney-Walter, Assistant Corporate 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 and in effect as of the date hereof (the “Certificate of Incorporation”), certified by the Secretary of State of the State of Delaware as of December 9, 2022, and certified pursuant to the Secretary’s Certificate;
(e) a copy of the Company’s Restated Bylaws, as amended and in effect as of the date hereof (the “Bylaws”), and certified pursuant to the Secretary’s Certificate; and
(f) a copy of certain resolutions of the Board of Directors of the Company relating to the approval of the Plan, the filing of the Registration Statement and certain related matters, and 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, including electronic 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 photocopied 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, including the facts and conclusions set forth in the Secretary’s Certificate.
In rendering the opinion set forth below, we have also assumed that (i) the Shares will be issued in book-entry form and an appropriate account statement evidencing the Shares credited to a recipient’s account maintained with the Company’s transfer agent and registrar will be issued by the Company’s transfer agent and registrar, (ii) each award agreement under which options, stock appreciation rights, restricted stock, restricted stock units, stock bonuses, other stock-based awards and certain other 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, and (iii) the issuance of the Shares does not violate or conflict with any agreement or instrument binding on the Company (except that we do not and will not make this assumption with respect to the Certificate of Incorporation and the Bylaws).
Intercept Pharmaceuticals, Inc. December 9, 2022 Page 3 |
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 Plan 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.
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 within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. 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 |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated March 2, 2022, with respect to the consolidated financial statements of Intercept Pharmaceuticals, Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.
/s/ KPMG LLP
New York, New York
December 9, 2022
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Intercept Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee |
| Equity | Common Stock, par value $0.001 per share | Other | 1,884,938(2) | $14.13(3) | $26,634,173.94 | $110.20 per $1,000,000 | $2,935.09 |
| Total Offering Amounts | N/A | $26,634,173.94 | N/A | $2,935.09 | |||
| Total Fee Offsets | N/A | N/A | N/A | $0 | |||
| Net Fee Due | N/A | N/A | N/A | $2,935.09 | |||
(1) 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 Registrant’s Amended and Restated Equity Incentive Plan (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) Represents the sum of (i) 1,182,918 shares (4% of the 29,572,953 shares outstanding as of December 31, 2021), plus (ii) 702,020 shares underlying certain equity awards previously issued under the Plan that have been forfeited or cancelled.
(3) 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 December 6, 2022, as reported on the Nasdaq Global Select Market.