As filed with the Securities and Exchange Commission on June 19, 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

 


 

AKCEA THERAPEUTICS, INC.

(Exact name of registrant as specified in its charter)

 


 

Delaware

 

47-2608175

(State or other jurisdiction of
incorporation or organization)

 

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

 

55 Cambridge Parkway, Suite 100
Cambridge, Massachusetts 02142
(Address of principal executive offices) (Zip code)

 


 

2015 Equity Incentive Plan

2017 Employee Stock Purchase Plan

(Full titles of the plans)

 

Paula Soteropoulos
Chief Executive Officer
Akcea Therapeutics, Inc.
55 Cambridge Parkway, Suite 100
Cambridge, Massachusetts 02142
(617) 207-0202

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

 


 

Copies to:

 

Charles S. Kim

Nicole C. Brookshire

Sean Clayton
Richard C. Segal

Cooley LLP

500 Boylston Street

Boston, Massachusetts 02116
(617) 937-2300

 

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 o

 

Accelerated filer o

 

Non-accelerated filer x
(Do not check if a
smaller reporting company)

 

Smaller reporting company o

Emerging growth companyx

 

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. x

 

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

 

5,500,000 shares

(3)

$

22.88 - 23.815

 

$

127,948,610.13

 

$

15,929.60

 

(1)         Pursuant to Rule 416(a) of 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, par value $0.001 per share (the “Common Stock”) that become issuable under the Akcea Therapeutics, Inc. 2015 Equity Incentive Plan (the “2015 EIP”) and the Akcea Therapeutics, Inc. 2017 Employee Stock Purchase Plan (the “2017 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock.

(2)          Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee. The offering price per share and the aggregate offering price are based upon (a) $22.88, which is the weighted-average exercise price for outstanding options granted under the 2015 EIP and (b) $23.815, which is based on the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Market on June 14, 2018. The chart below details the calculations of the registration fee.

 

Securities

 

Number of
Shares

 

Offering Price
Per
Share (2)

 

Aggregate
Offering
Price

 

Shares, of the 5,000,000 shares of Common Stock added to the shares authorized for issuance under the 2015 EIP, as amended, issuable upon the exercise of outstanding options granted under the 2015 EIP, as amended

 

3,244,802

 

$

22.88

(2)(a)

$

74,241,069.76

 

Shares reserved for future grant under the 2015 EIP, as amended

 

1,755,198

 

$

23.815

(2)(b)

$

41,800,040.37

 

Shares reserved for future grant under the 2017 ESPP

 

500,000

 

$

23.815

(2)(b)

$

11,907,500.00

 

Proposed Maximum Aggregate Offering Price

 

 

 

 

 

$

127,948,610.13

 

Registration Fee

 

 

 

 

 

$

15,929.60

 

 

(3)          Represents (a) 5,000,000 shares of Common Stock added to the shares authorized for issuance under the 2015 EIP pursuant to an amendment to such plan approved by the registrant’s stockholders via written consent and (b) 500,000 shares of Common Stock that were automatically added to the shares authorized for issuance under the 2017 ESPP on January 1, 2018, pursuant to an “evergreen” provision contained in the Plan. Pursuant to such provision, on January 1 of each year from 2018 until 2027, the number of shares authorized for issuance under the Plan is automatically increased by a number equal to the amount equal to the lesser of (i) 1% of the total number of shares of Common Stock outstanding on December 31st of the preceding calendar year, and (ii) 500,000 shares of Common Stock.  Notwithstanding the foregoing, the Registrant’s board may act prior to the first day of any calendar year to provide that there will be no such increase in the share reserve for such calendar year or that the increase in the share reserve for such calendar year will be a lesser number of shares of Common Stock than would otherwise occur pursuant to the preceding sentence.

 

 

 



 

INCORPORATION OF DOCUMENTS BY REFERENCE

 

This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plans is effective. The Registrant previously registered shares of its Common Stock for issuance under the 2015 EIP and 2017 ESPP under a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on July 14, 2017 (File No. 333-219290). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statement referenced above.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

ITEM 8.    EXHIBITS.

 

Exhibit
Number

 

Description

 

 

 

4.1(1)

 

Amended and Restated Certificate of Incorporation of the Registrant, as amended and as currently in effect.

 

 

 

4.2(2)

 

Amended and Restated Bylaws of the Registrant, as currently in effect.

 

 

 

4.3(3)

 

Specimen Common Stock Certificate.

 

 

 

5.1

 

Opinion of Cooley LLP.

 

 

 

23.1

 

Consent of Independent Registered Public Accounting Firm.

 

 

 

23.2

 

Consent of Cooley LLP. Reference is made to Exhibit 5.1.

 

 

 

24.1

 

Power of Attorney. Reference is made to the signature page hereto.

 

 

 

99.1(4)

 

2015 Equity Incentive Plan, as amended, and Form of Award Agreements.

 

 

 

99.2(5)

 

2017 Employee Stock Purchase Plan.

 

2



 


(1)       Previously filed as Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-38137), originally filed with the Commission on May 7, 2018, and incorporated herein by reference.

(2)       Previously filed as Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 001-38137), originally filed with the Commission on July 19, 2017, and incorporated herein by reference.

(3)       Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-216949), originally filed with the Commission on June 20, 2017, as amended, and incorporated herein by reference.

(4)       Previously filed as Exhibit 10.1 to the Registrant’s Current Report on Form 8-K (File No. 001-38137), originally filed with the Commission on April 20, 2018, and incorporated herein by reference.

(5)       Previously filed as Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1/A (File No. 333-216949), originally filed with the Commission on June 20, 2017, as amended, and incorporated herein by reference.

 

3



 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 Cambridge, Commonwealth of Massachusetts, on June 19, 2018.

 

 

AKCEA THERAPEUTICS, INC.

 

 

 

 

By:

/s/ Paula Soteropoulos

 

 

Paula Soteropoulos

 

 

Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Paula Soteropoulos and Michael MacLean, and each or any one of them, his/her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him/her and in his/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 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 and necessary to be done in connection therewith, as fully to all intents and purposes as he/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/her substitutes or substitute, 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/ Paula Soteropoulos

 

Chief Executive Officer and Director (Principal Executive Officer)

 

June 19, 2018

Paula Soteropoulos

 

 

 

 

 

 

 

 

/s/ Michael MacLean

 

Chief Financial Officer

 

June 19, 2018

Michael MacLean

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ Stanley T. Crooke

 

Director

 

June 19, 2018

Stanley T. Crooke, M.D., Ph.D.

 

 

 

 

 

 

 

 

 

/s/ Sarah Boyce

 

President, Director

 

June 19, 2018

Sarah Boyce

 

 

 

 

 

 

 

 

 

/s/ Edward Fitzgerald

 

Director

 

June 19, 2018

Edward Fitzgerald

 

 

 

 

 

 

 

 

 

/s/ Christopher Gabrieli

 

Chairman of the Board of Directors

 

June 19, 2018

Christopher Gabrieli

 

 

 

 

 

 

 

 

 

/s/ Elaine Hochberg

 

Director

 

June 19, 2018

Elaine Hochberg

 

 

 

 

 

 

 

 

 

/s/ Richard A. Moscicki

 

Director

 

June 19, 2018

Richard A. Moscicki, M.D.

 

 

 

 

 

4



 

/s/ B. Lynne Parshall

 

Director

 

June 19, 2018

B. Lynne Parshall, J.D.

 

 

 

 

 

 

 

 

 

/s/ Sandford D. Smith

 

Director

 

June 19, 2018

Sandford D. Smith

 

 

 

 

 

5


Exhibit 5.1

 

 

Nicole C. Brookshire
T: +1 617 937 2357
nbrookshire@cooley.com

 

 

June 19, 2018

 

Akcea Therapeutics, Inc.

55 Cambridge Parkway, Suite 100
Cambridge, MA 02142

 

Ladies and Gentlemen:

 

You have requested our opinion with respect to certain matters in connection with the filing by Akcea Therapeutics, Inc., a Delaware corporation (the “Company”) of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 5,500,000 shares of the Company’s Common Stock, $0.001 par value, (the “Shares”), consisting of (i) 5,000,000 shares of Common Stock issuable pursuant to its 2015 Equity Incentive Plan and (ii) 500,000 shares of Common Stock issuable pursuant to its 2017 Employee Stock Purchase Plan (together with the Company’s 2015 Equity Incentive Plan, the “Plans”).

 

In connection with this opinion, we have examined the Registration Statement and related Prospectus, your Certificate of Incorporation and Bylaws, as amended, and such other documents, records, certificates, memoranda and other instruments as we deem necessary as a basis for this opinion.  We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.

 

Our opinion herein is expressed solely with respect to the General Corporation Law of the State of Delaware.  We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

 

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plan, the Registration Statement and related Prospectus, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

Our opinion is limited to the matters stated herein and no opinion is implied or may be inferred beyond the matters expressly stated and is based on those laws as in effect on the date hereof, and we disclaim any obligation to advise you of facts, circumstances, events or developments which hereafter may be brought to our attention and which may alter, affect or modify the opinion expressed herein.

 

500 BOYLSTON STREET, BOSTON, MA 02116-3736  T: (617) 937-2300  F: (617) 937-2400  WWW.COOLEY.COM

 



 

 

Akcea Therapeutics, Inc.

June 19, 2018

Page Two

 

We consent to the filing of this opinion as an exhibit to the Registration Statement.

 

Very truly yours,

 

COOLEY LLP

 

By:

/s/ Nicole C. Brookshire

 

 

Nicole C. Brookshire

 

 

500 BOYLSTON STREET, BOSTON, MA 02116-3736  T: (617) 937-2300  F: (617) 937-2400  WWW.COOLEY.COM

 


Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2015 Equity Incentive Plan and 2017 Employee Stock Purchase Plan of Akcea Therapeutics, Inc. of our report dated February 28, 2018, with respect to the consolidated financial statements of Akcea Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.

 

 

/s/ Ernst & Young LLP

San Diego, California

 

June 19, 2018