As filed with the Securities and Exchange Commission on March 1, 2022
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
THE SECURITIES ACT OF 1933
Rhythm Pharmaceuticals, Inc.
(Exact name of Registrant as specified in its charter)
(State or other jurisdiction of
Incorporation or organization)
222 Berkeley Street
Boston, MA 02116
(Address of principal executive offices) (Zip code)
Rhythm Pharmaceuticals, Inc. 2017 Equity Incentive Plan
Rhythm Pharmaceuticals, Inc. 2017 Employee Stock Purchase Plan
(Full title of the plans)
David P. Meeker, M.D.
Chief Executive Officer, President and Chairman of the Board
Rhythm Pharmaceuticals, Inc.
222 Berkeley Street
Boston, MA 02116
(Name and address of agent for service) (Telephone number, including area code, of agent for service)
With copies to:
Peter N. Handrinos, Esq.
Latham & Watkins LLP
John Hancock Tower
200 Clarendon Street
Boston, MA 02116
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 x||Accelerated filer ¨|
|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 comply with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ¨
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 2,011,343 shares of the Registrant’s common stock to be issued pursuant to the Rhythm Pharmaceuticals, Inc. 2017 Equity Incentive Plan (the “Incentive Plan”) and an additional 502,835 shares of the Registrant’s common stock to be issued pursuant to the Rhythm Pharmaceuticals, Inc. 2017 Employee Stock Purchase Plan, as amended (the “ESPP”, and together with the Incentive Plan, the “Plans”). A Registration Statement of the Registrant on Form S-8 relating to the Plans is effective.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENTS ON FORM S-8
The contents of the Registration Statements on Form S-8 (File Nos. 333-220925, 333-223647, 333-229642, 333-236829 and 333-253709), including any amendments thereto, filed with the Securities and Exchange Commission, relating to the Plans, are incorporated herein by reference.
|4.1||Amended and Restated Certificate of Incorporation of Rhythm Pharmaceuticals, Inc., dated October 10, 2017 (incorporated by reference to Exhibit 3.1 to Rhythm Pharmaceuticals, Inc.’s Quarterly Report on Form 10-Q (File No. 001-38223) filed on May 4, 2020)|
|4.2||Amended and Restated Bylaws of Rhythm Pharmaceuticals, Inc. (incorporated by reference to Exhibit 3.1 to Rhythm Pharmaceuticals, Inc.’s Current Report on Form 8-K (File No. 001-38223) filed on December 11, 2020)|
|5.1*||Opinion of Latham & Watkins LLP|
|23.1*||Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm|
|23.2*||Consent of Latham & Watkins LLP (included in Exhibit 5.1)|
|24.1*||Power of Attorney (included on signature page)|
|99.1||Rhythm Pharmaceuticals, Inc. 2017 Equity Incentive Plan and Form of Option Agreement (incorporated by reference to Exhibit 10.2 to Rhythm Pharmaceuticals, Inc.’s Quarterly Report on Form 10-Q (File No. 001-38223) filed on November 14, 2017)|
|99.2||2017 Equity Incentive Plan Form of Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.18 to Rhythm Pharmaceuticals, Inc.’s Annual Report on Form 10-K (File No. 001-38223) filed on March 2, 2020)|
|99.3||Rhythm Pharmaceuticals, Inc. 2017 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.10 to Rhythm Pharmaceuticals, Inc.’s Quarterly Report on Form 10-Q (File No. 001-38223) filed on November 14, 2017)|
|99.4||First Amendment to the 2017 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.17 to Rhythm Pharmaceuticals, Inc.’s Registration Statement on Form S-1 (File No. 333-225700) filed on June 18, 2018|
|107.1*||Filing Fee Table|
* Filed herewith.
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 March 1, 2022.
|RHYTHM PHARMACEUTICALS, INC.|
|By:||/s/ David P. Meeker, M.D.|
|David P. Meeker, M.D.|
|Chief Executive Officer, President and|
|Chairman of the Board|
Each person whose signature appears below hereby constitutes and appoints David P. Meeker, M.D. and Hunter C. Smith, or each of them singly, with full power to act without the other, such person’s true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign this registration statement and any and all amendments, including post-effective amendments to this registration statement, and to file the same, with exhibits and schedules 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 or desirable to be done in connection therewith as fully 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 or her 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.
|/s/ David P. Meeker, M.D.||Chief Executive Officer, President and Director||March 1, 2022|
|David P. Meeker, M.D.||(Principal Executive Officer)|
|/s/ Hunter C. Smith||Chief Financial Officer||March 1, 2022|
|Hunter C. Smith||(Principal Financial Officer)|
|/s/ William T. Roberts||Chief Accounting Officer||March 1, 2022|
|William T. Roberts||(Principal Accounting Officer)|
|/s/ Edward T. Mathers||Lead Director||March 1, 2022|
|Edward T. Mathers|
|/s/ Stuart Arbuckle||Director||March 1, 2022|
|/s/ Camille L. Bedrosian, M.D.||Director||March 1, 2022|
|Camille L. Bedrosian, M.D.|
|/s/ Jennifer L. Good||Director||March 1, 2022|
|Jennifer L. Good|
|/s/ Christophe R. Jean||Director||March 1, 2022|
|Christophe R. Jean|
|/s/ David W. J. McGirr||Director||March 1, 2022|
|David W. J. McGirr|
|/s/ Lynn A. Tetrault, J.D.||Director||March 1, 2022|
|Lynn A. Tetrault, J.D.|
|200 Clarendon Street|
|Boston, Massachusetts 02116|
|Tel: +1.617.948.6000 Fax: +1.617.948.6001|
|FIRM / AFFILIATE OFFICES|
|Century City||Orange County|
|March 1, 2022||Frankfurt||San Francisco|
Rhythm Pharmaceuticals, Inc.
222 Berkeley Street, 12th Floor
Boston, Massachusetts 02116
|Re:||Registration Statement on Form S-8; 2,514,178 shares of Common Stock, par value $0.001 per share, of Rhythm Pharmaceuticals, Inc.|
To the addressee set forth above:
We have acted as special counsel to Rhythm Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing by the Company with the Securities and Exchange Commission of a registration statement on Form S–8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the issuance of up to 2,514,178 shares of the Company’s common stock, par value $0.001 per share (the “Shares”), which may be issued pursuant to the Rhythm Pharmaceuticals, Inc. 2017 Equity Incentive Plan (the “2017 Plan”) and the Rhythm Pharmaceuticals, Inc. 2017 Employee Stock Purchase Plan (the “2017 ESPP” and, together with the 2017 Plan, the “Plans”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus forming a part thereof, other than as expressly stated herein with respect to the issuance of the Shares.
As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon the foregoing and upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein only as to the General Corporation Law of the State of Delaware, as amended (the “DCGL”), and we express no opinion with respect to any other laws.
March 1, 2022
Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients thereof, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plans, assuming in each case that the individual grants or awards under the Plans are duly authorized by all necessary corporate action and duly granted or awarded and exercised in accordance with the requirements of law and the Plans (and the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.
This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Securities Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby 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 Securities and Exchange Commission thereunder.
|/s/ Latham & Watkins LLP|
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Rhythm Pharmaceuticals, Inc. 2017 Equity Incentive Plan and the Rhythm Pharmaceuticals, Inc. 2017 Employee Stock Purchase Plan of our reports dated March 1, 2022, with respect to the consolidated financial statements of Rhythm Pharmaceuticals, Inc. and the effectiveness of internal control over financial reporting of Rhythm Pharmaceuticals, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2021, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
March 1, 2022
CALCULATION OF FILING FEE TABLE
RHYTHM PHARMACEUTICALS, INC.
(Exact Name of Registrant as Specified in its Charter)
Table I: Newly Registered Securities
|Fee Rate||Amount of
|2017 Incentive Award Plan||Equity||Common Stock, par value $0.001 per share||Rule 457(c)
|2,011,343||(2)||$||6.92||(4)||$||13,918,493.56||$92.70 per million dollars||$||1,290.24|
|2017 Employee Stock Purchase Plan||Equity||Common Stock, par value $0.001 per share||Rule 457(c)
|502,835||(3)||$||6.92||(4)||$||3,479,618.20||$92.70 per million dollars||$||322.56|
|Total Offering Amounts||$||17,398,111.76||$||1,612.80|
|Total Fee Offsets||$||—|
|Net Fee Due||$||1,612.80|
|(1)||In accordance with Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued under the Rhythm Pharmaceuticals, Inc. 2017 Incentive Award Plan (the “Incentive Plan”) and the Rhythm Pharmaceuticals, Inc. 2017 Employee Stock Purchase Plan, as amended (the “ESPP”) to prevent dilution resulting from stock splits, stock dividends or similar transactions. In addition, pursuant to Rule 416(c) under the Securities Act, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Incentive Plan and the ESPP.|
|(2)||Consists of 2,011,343 shares of Common Stock that may become issuable under the Incentive Plan pursuant to its terms.|
|(3)||Consists of 502,835 shares of Common Stock that may become issuable under the ESPP pursuant to its terms.|
|(4)||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 Common Stock as reported on the Nasdaq Global Select Market on February 24, 2022.|