As filed with the Securities and Exchange Commission on February 6, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Agios Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 26-0662915 | |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) | |
| 38 Sidney Street, 2nd Floor Cambridge, MA |
02139 | |
| (Address of Principal Executive Offices) | (Zip Code) | |
2013 Stock Incentive Plan
(Full Title of the Plan)
David P. Schenkein, M.D.
Chief Executive Officer
Agios Pharmaceuticals, Inc.
38 Sidney Street, 2nd Floor
Cambridge, MA 02139
(Name and Address of Agent For Service)
(617) 649-8600
(Telephone Number, Including Area Code, of Agent For Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | ¨ | Accelerated filer | ¨ | |||
| Non-accelerated filer | x (Do not check if a smaller reporting company) | Smaller reporting company | ¨ | |||
CALCULATION OF REGISTRATION FEE
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| Title of Securities to be Registered |
Amount to be Registered (1) |
Proposed Maximum Offering
Price |
Proposed Maximum Aggregate |
Amount of Registration Fee | ||||
| Common Stock, $0.001 par value per share |
1,242,966 shares | $26.23 (2) | $32,602,998.18 (2) | $4,200 | ||||
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| (1) | In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant’s Common Stock as reported on the Nasdaq Global Select Market on February 3, 2014. |
Statement of Incorporation by Reference
This Registration Statement on Form S-8, relating to the 2013 Stock Incentive Plan of Agios Pharmaceuticals, Inc. (the “Registrant”), is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement on Form S-8 has previously been filed and is effective. Accordingly, this Registration Statement incorporates by reference the contents of the Registration Statement on Form S-8, File No. 333-190101, filed with the Securities and Exchange Commission on July 24, 2013 by the Registrant, relating to the Registrant’s 2007 Stock Incentive Plan, 2013 Stock Incentive Plan and 2013 Employee Stock Purchase Plan, except for Item 8, Exhibits, with respect to which the Exhibit Index immediately preceding the exhibits attached hereto is incorporated herein by reference.
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 Cambridge, Commonwealth of Massachusetts, on this 6th day of February, 2014.
| AGIOS PHARMACEUTICALS, INC. | ||
| By: | /s/ David P. Schenkein | |
| David P. Schenkein, M.D. | ||
| Chief Executive Officer | ||
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Agios Pharmaceuticals, Inc., hereby severally constitute and appoint David P. Schenkein, M.D., J. Duncan Higgons and Glenn Goddard and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Agios Pharmaceuticals, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.
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/ David P. Schenkein David P. Schenkein, M.D. |
Chief Executive Officer and Director (Principal executive officer) |
February 6, 2014 | ||
| /s/ Glenn Goddard Glenn Goddard |
Senior Vice President, Finance (Principal financial and accounting officer) |
February 6, 2014 | ||
| /s/ Lewis C. Cantley Lewis C. Cantley, Ph.D. |
Director | February 6, 2014 | ||
| /s/ Paul J. Clancy Paul J. Clancy |
Director | February 6, 2014 | ||
| /s/ Douglas G. Cole Douglas G. Cole, M.D. |
Director | February 6, 2014 | ||
| /s/ Perry Karsen Perry Karsen |
Director | February 6, 2014 | ||
| /s/ John M. Maraganore John M. Maraganore, Ph.D. |
Director | February 6, 2014 | ||
| /s/ Robert T. Nelsen Robert T. Nelsen |
Director | February 6, 2014 | ||
| /s/ Kevin P. Starr Kevin P. Starr |
Director | February 6, 2014 | ||
| /s/ Marc Tessier-Lavigne Marc Tessier-Lavigne, Ph.D. |
Director | February 6, 2014 | ||
INDEX TO EXHIBITS
| Number |
Description | |
| 4.1(1) | Restated Certificate of Incorporation of the Registrant | |
| 4.2(1) | Amended and Restated By-Laws of the Registrant | |
| 5.1 | Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant | |
| 23.1 | Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Ernst & Young LLP, an independent registered public accounting firm | |
| 24.1 | Power of attorney (included on the signature pages of this registration statement) | |
| 99.1(2) | 2013 Stock Incentive Plan | |
| (1) | Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant’s Current Report on Form 8-K (File No. 001-36014) filed with the Securities and Exchange Commission on July 30, 2013 and incorporated herein by reference. |
| (2) | Previously filed with the Securities and Exchange Commission as an Exhibit to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-189216) filed with the Securities and Exchange Commission on June 24, 2013 and incorporated herein by reference. |
Exhibit 5.1
| February 6, 2014 |
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Agios Pharmaceuticals, Inc.
38 Sidney Street, 2nd Floor
Cambridge, MA 02139
| Re: | Registration Statement on Form S-8: 2013 Stock Incentive Plan |
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 1,242,966 shares of common stock, $0.001 par value per share (the “Shares”), of Agios Pharmaceuticals, Inc., a Delaware corporation (the “Company”), issuable under the Company’s 2013 Stock Incentive Plan (the “Plan”).
We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the Company as we have deemed material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the state laws of the Commonwealth of Massachusetts, the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
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.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
| Very truly yours, | ||
| WILMER CUTLER PICKERING HALE AND DORR LLP | ||
| By: | /s/ Steven D. Singer | |
| Steven D. Singer, a Partner | ||
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2013 Stock Incentive Plan of Agios Pharmaceuticals, Inc. of our report dated May 23, 2013, except for Note 12b, as to which the date is July 11, 2013, with respect to the consolidated financial statements of Agios Pharmaceuticals, Inc. included in its Registration Statement (Form S-1 No. 333-189216) and related prospectus, filed with the Securities and Exchange Commission.
| /s/ Ernst & Young LLP |
| Boston, Massachusetts |
| February 4, 2014 |