As filed with the Securities and Exchange Commission on February 25, 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

 

 

JAZZ PHARMACEUTICALS PUBLIC LIMITED COMPANY

(Exact name of registrant as specified in its charter)

 

 

 

Ireland		98-1032470
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification Number)

Fourth Floor, Connaught House,

One Burlington Road Dublin 4, Ireland

011-353-1-634-7800

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Jazz Pharmaceuticals plc 2011 Equity Incentive Plan

Jazz Pharmaceuticals plc Amended and Restated

2007 Non-Employee Directors Stock Option Plan

(Full title of the plan)

 

 

Bruce C. Cozadd

Chairman and Chief Executive Officer

Jazz Pharmaceuticals plc

c/o Jazz Pharmaceuticals, Inc.

3180 Porter Drive

Palo Alto, CA 94304

(650) 496-3777

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

 

 

Copy to:

Chadwick L. Mills, Cooley LLP

3175 Hanover Street

Palo Alto, CA 94304-1130

(650) 843-5000

 

 

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

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price Per Share(3)		Proposed Maximum Aggregate Offering Price(3)		Amount of Registration Fee
Ordinary shares, nominal value $0.0001 per share
– 2011 Equity Incentive Plan		2,585,081(2)		$167.28		$432,432,349.68		$55,697.29
– 2007 Amended and Restated Non-Employee Directors Stock Option Plan		60,000(2)		$167.28		$10,036,800.00		$1,292.74
TOTAL		2,645,081				$442,469,149.68		$56,990.03

(1)

Pursuant to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional ordinary shares of the Registrant, nominal value $0.0001 per share (“Ordinary Shares”), that become issuable under the plan set forth herein by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration that results in an increase in the number of outstanding Ordinary Shares.

(2)

Represents Ordinary Shares reserved on January 1, 2014 for issuance under the Registrant’s 2011 Equity Incentive Plan (the “2011 Equity Incentive Plan”) and Amended and Restated 2007 Non-Employee Directors Stock Option Plan (“2007 Directors Plan”). Ordinary Shares issuable under the 2011 Equity Incentive Plan were previously registered on registration statements on Form S-8 filed by the Registrant with the U.S. Securities and Exchange Commission (the “Commission”) on January 18, 2012 (File No. 333-179075) (the “2012 Form S-8”) and February 27, 2013 (File No. 333-186886). Ordinary Shares issuable under the 2007 Directors Plan were previously registered on the 2012 Form S-8.

(3)

Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(h) and Rule 457(c) promulgated under the Securities Act. The offering price per share and the aggregate offering price are based upon the average of the high and low prices of the Ordinary Shares as reported on The NASDAQ Global Select Market on February 18, 2014.

 

 

 

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EXPLANATORY NOTE

This Registration Statement on Form S-8 (the “Registration Statement”) is being filed by Jazz Pharmaceuticals plc (the “Registrant”) for the purpose of registering an additional 2,585,081 ordinary shares of the Registrant, nominal value $0.0001 per share, to be issued pursuant to the Registrant’s 2011 Equity Incentive Plan pursuant to an annual increase provision in that plan and an additional 60,000 ordinary shares of the Registrant to be issued pursuant to the Registrant’s Amended and Restated 2007 Non-Employee Directors Stock Option Plan pursuant to an annual increase provision in that plan.

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.

Incorporation of Documents by Reference.

The following documents filed by the Registrant with the U.S. Securities and Exchange Commission (the “Commission”) are incorporated by reference into this Registration Statement:

 

•

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the Commission on February 25, 2014;

 

•

The Registrant’s Current Report on Form 8-K filed with the Commission on February 25, 2014;

 

•

The Registrant’s Current Report on Form 8-K filed with the Commission on January 24, 2014;

 

•

The Registrant’s Current Report on Form 8-K filed with the Commission on January 13, 2014; and

 

•

The Registrant’s Current Report on Form 8-K filed with the Commission on January 18, 2012 (which evidences the registration of the Registrant’s ordinary shares under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and includes therein a description of the Registrant’s ordinary shares).

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, other than specific sections of such documents as set forth therein, current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items, prior to the filing of a post-effective amendment to this Registration Statement which indicates that all of the Registrant’s ordinary shares offered have been sold or which deregisters all of such ordinary shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of the filing of such documents.

For purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

Item 4.

Description of Securities.

Not applicable.

 

Item 5.

Interests of Named Experts and Counsel.

Not applicable.

 

Item 6.

Indemnification of Directors and Officers.

Pursuant to the Registrant’s memorandum and articles of association, subject to the provisions of, and so far as may be permitted by the Irish Companies Acts of 1963 to 2012 (as amended), every director, the secretary and current or former executives may be indemnified by the Registrant against all costs, charges, losses, expenses and liabilities incurred by him or her in the execution and discharge of his or her duties or in relation thereto, including any liability incurred by him or her in defending civil or criminal proceedings that relate to anything done or omitted or alleged to have been done or omitted by him or her as a director, secretary, executive or employee of the Registrant and in which judgment is given in his or her favor (or the proceedings are otherwise disposed of without any finding or admission of any material breach of duty on his part) or in which he or she is acquitted or in connection with any application under any statute for relief from liability in respect of any such act or omission in which relief is granted to him or her by the court. Under the Registrant’s memorandum and articles of association, the Registrant’s directors, secretary and current or former directors, however, will not be entitled to indemnification by the Registrant if they incurred the liabilities through their own fraud, dishonesty or conscious, intentional or willful breach of the obligation to act honestly, lawfully and in good faith.

The Registrant has entered into indemnity agreements with each of its directors, its secretary and persons designated as executive officers that require it to indemnify such persons against any and all expenses (including attorneys’ fees), witness fees, judgments, fines, penalties, settlements and other amounts incurred (including expenses of a derivative action) in connection with any action, suit or proceeding or alternative dispute resolution mechanism, inquiry, hearing or investigation, whether threatened, pending or completed and whether conducted by the Registrant or any other party, to which any such person may be made a party by reason of the fact that such person is or was a director, officer, employee, consultant, agent or fiduciary of the Registrant or any of its subsidiaries or other affiliated enterprises, provided that such person’s conduct did not constitute a breach of his or her duty of loyalty or other fiduciary duty to the Registrant or its shareholders, and was not an act or omission not in good faith or which involved intentional misconduct or a knowing violation of laws. The indemnity agreements also set forth certain procedures that will apply in the event of a claim for indemnification thereunder. The indemnity agreements with certain of the Registrant’s directors further provide that, with respect to a director that is serving on the Registrant’s board of directors at the direction of a venture or other investment fund or entity, with respect to such indemnitee’s service as a director, officer, employee, agent and/or fiduciary of the Registrant, the Registrant’s obligations under the indemnity agreement are the primary source of indemnification and advancement, the Registrant is required to make all expense advances, and the Registrant is liable for all of such indemnitee’s expenses, to the extent required by the indemnity agreement and the Registrant’s memorandum and articles of association, without regard to any rights the indemnitee may have against the applicable venture or other investment fund or entity, and the Registrant irrevocably waives, relinquishes and releases any and all claims against the applicable venture or other investment fund or entity for contribution, subrogation or any other recovery of any kind in connection with the Registrant’s obligations under the indemnity agreement.

The Registrant maintains directors’ and officers’ liability insurance. The policy insures the Registrant’s directors, secretary and executives against unindemnified losses arising from certain wrongful acts in their capacities as directors, secretary and executives, and reimburses the Registrant for those losses for which the Registrant has lawfully indemnified the directors, secretary and executives. The policy contains various exclusions, none of which will apply to any offerings pursuant to this registration statement.

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The Registrant is a party to various investor rights and registration rights agreements that provide for cross-indemnification in connection with registration of the Registrant’s ordinary shares on behalf of parties to such agreements, including selling shareholders that may be named in one or more supplements to the prospectus included in any such registration statement.

 

Item 7.

Exemption from Registration Claimed.

Not applicable.

 

Item 8.

Exhibits.

 

Exhibit Number		Description of Document
3.1		Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.1 in the Registrant’s Current Report on Form 8-K (File No. 001-33500), as filed with the Commission on January 18, 2012).
4.1		Reference is made to Exhibit 3.1.
5.1		Opinion of A&L Goodbody.
23.1		Consent of A&L Goodbody (included in Exhibit 5.1).
23.2		Consent of KPMG, Independent Registered Public Accounting Firm.
23.3		Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
24.1		Power of Attorney (included in the signature page hereto).
99.1		Jazz Pharmaceuticals plc 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 99.1 in the Registrant’s Registration Statement on Form S-8 (File No. 333-179075), as filed with the Commission on January 18, 2012).
99.2		Jazz Pharmaceuticals plc Amended and Restated 2007 Non-Employee Directors Stock Option Plan (incorporated herein by reference to Exhibit 99.4 in the Registrant’s Registration Statement on Form S-8 (File No. 333-179075), as filed with the Commission on January 18, 2012).

 

Item 9.

Undertakings.

1. The undersigned Registrant hereby undertakes:

(a) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

(i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933;

(ii) To reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

(iii) To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;

Provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference herein.

(b) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(c) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

2. The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

3. Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.

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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 Palo Alto, State of California on February 25, 2014.

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Bruce C. Cozadd, Kathryn E. Falberg, Suzanne Sawochka Hooper and Karen J. Wilson, and each or any of them, as his or her true and lawful attorneys-in-fact and agents, with full powers 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 other documents in connection therewith, with the U.S. Securities and Exchange Commission, and generally to do all such things in his or her name and behalf in their capacities as officers and directors to enable Jazz Pharmaceuticals plc to comply with the provisions of the Securities Act of 1933 and all requirements of the U.S. 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 and about the premises, as fully to all intents and purposes as he or 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 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:

 

Signatures		Title		Date
/s/ Bruce C. Cozadd Bruce C. Cozadd		Chairman, Chief Executive Officer and Director (Principal Executive Officer)		February 25, 2014
/s/ Kathryn E. Falberg Kathryn E. Falberg		Executive Vice President and Chief Financial Officer (Principal Financial Officer)		February 25, 2014
/s/ Karen J. Wilson Karen J. Wilson		Senior Vice President, Finance (Principal Accounting Officer)		February 25, 2014
/s/ Paul L. Berns Paul L. Berns		Director		February 25, 2014
/s/ Patrick G. Enright Patrick G. Enright		Director		February 25, 2014
/s/ Peter Gray Peter Gray		Director		February 25, 2014
/s/ Heather Ann McSharry Heather Ann McSharry		Director		February 25, 2014
/s/ Seamus C. Mulligan Seamus C. Mulligan		Director		February 25, 2014
/s/ Kenneth W. O’Keefe Kenneth W. O’Keefe		Director		February 25, 2014
/s/ Norbert G. Riedel, Ph.D. Norbert G. Riedel, Ph.D.		Director		February 25, 2014
/s/ Catherine A. Sohn Catherine A. Sohn		Director		February 25, 2014
/s/ Rick E Winningham Rick E Winningham		Director		February 25, 2014

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EXHIBIT INDEX

 

Exhibit Number		Description of Document
3.1		Memorandum and Articles of Association of the Registrant (incorporated herein by reference to Exhibit 3.1 in the Registrant’s Current Report on Form 8-K (File No. 001-33500), as filed with the Commission on January 18, 2012).
4.1		Reference is made to Exhibit 3.1.
5.1		Opinion of A&L Goodbody.
23.1		Consent of A&L Goodbody (included in Exhibit 5.1).
23.2		Consent of KPMG, Independent Registered Public Accounting Firm.
23.3		Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm.
24.1		Power of Attorney (included in the signature page hereto).
99.1		Jazz Pharmaceuticals plc 2011 Equity Incentive Plan (incorporated herein by reference to Exhibit 99.1 in the Registrant’s Registration Statement on Form S-8 (File No. 333-179075), as filed with the Commission on January 18, 2012).
99.2		Jazz Pharmaceuticals plc Amended and Restated 2007 Non-Employee Directors Stock Option Plan (incorporated herein by reference to Exhibit 99.4 in the Registrant’s Registration Statement on Form S-8 (File No. 333-179075), as filed with the Commission on January 18, 2012).

Exhibit 5.1

A&L Goodbody Solicitors International Financial Services Centre North Wall Quay Dublin 1

Tel: +353 1 649 2000 Fax: +353 1 649 2649 email: info@algoodbody.com website: www.algoodbody.com dx: 29 Dublin

Jazz Pharmaceuticals plc

Fourth Floor,

Connaught House,

One Burlington Road,

Dublin 4,

Ireland

25 February 2014

Jazz Pharmaceuticals plc (the Company)

Dear Sirs

We act as Irish counsel for the Company, a public limited company incorporated under the laws of Ireland, in connection with the proposed registration by the Company of 2,645,081 ordinary shares of the Company, nominal value $0.0001 per share (the Ordinary Shares), pursuant to a Registration Statement on Form S-8 (the Registration Statement) to be filed by the Company under the Securities Act of 1933, as amended. The Ordinary Shares are issuable under the Jazz Pharmaceuticals plc 2011 Equity Incentive Plan (the 2011 Plan) and Jazz Pharmaceuticals plc Amended and Restated 2007 Non-Employee Directors Stock Option Plan (the 2007 Directors Plan) (together the Plans). The 2011 Plan was adopted by the Company under an Agreement and Plan of Merger and Reorganization dated 19 September 2011 by and among the Company, Jazz Pharmaceuticals, Inc., Jaguar Merger Sub Inc. and Seamus Mulligan.

In connection with this Opinion, we have reviewed copies of such corporate records of the Company as we have deemed necessary as a basis for the opinion hereinafter expressed. In rendering this opinion, we have examined, and have assumed the truth and accuracy of the contents of, such documents and certificates of officers of the Company and of public officials as to factual matters and have conducted such searches in public registries in Ireland as we have deemed necessary or appropriate for the purposes of this opinion but have made no independent investigation regarding such factual matters. In our examination we have assumed the truth and accuracy of the information contained in such documents, 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 or photostatic copies and the authenticity of the originals of such documents.

We have further assumed that none of the resolutions and authorities of the shareholders or directors of the Company upon which we have relied have been varied, amended or revoked in any respect or have expired and that the Ordinary Shares will be issued in accordance with such resolutions and authorities and the terms of the Plans.

Dublin       Belfast       London       New York       San Francisco       Palo Alto

 

P.M. Law

V.J. Power

S. O’Riordan

E.A. Roberts

D. Widger

J.B. Somerville

D. Main

A.J. Johnston

A. Casey

G. Stanley

C.E. Gill

L.A. Kennedy

M.P.McKenna

C. Rogers

C. Christle

M.F. Barr

J. Cahir

M. Rasdale

B. Hosty

D. Dagostino

E.M. Fitzgerald

S.M. Doggett

K.A. Feeney

G. O’Toole

S.O’Croinin

A.M.Curran

M. Traynor

D. Inverarity

M. O’Brien

E Keane

B.M. Cotter

B.McDermott

M.Sherlock

J.N. Kelly

J.W. Yarr

A. Roberts

P.M. Murray

M. Coghlan

K. Killalea

J.G. Grennan

C. Duffy

E.P. Conlon

N. O’Sullivan

D.R. Baxter

M. Dale

N. Ryan

D.R. Francis

L. Mulleady

J.Coman

E.M. Brady

E. MacNeill

M.J. Ward

A.McCarthy

C. McCourt

K. Furlong

L.A. Murphy

K. Ryan

P.D. White

P.V. Maher

K.P. Allen

A.C. Burke

J.F. Whelan

R.M. Moore

P.T.Fahy

A. Walsh

E. Hurley

Consultants: J.R. Osborne S.W Haughey T.V. O’Connor Professor J.C.W. Wylie A.F.  Browne M.A. Greene A.V. Fanagan J.A. O’Farrell I.B.Moore J.H. Hickson

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We have assumed the absence of fraud on the part of the Company and its respective officers, employees, agents and advisers.

Having made such further investigation and reviewed such other documents as we have considered requisite or desirable, subject to the foregoing and to the within qualifications and assumptions, and provided that the Registration Statement, as finally amended, has become effective, we are of the opinion that the Ordinary Shares have been duly authorised and when issued in accordance with the Registration Statement, the Plans and the options or other equity awards granted or to be granted thereunder, will be validly issued, fully paid and not subject to calls for any additional payments (“non-assessable”).

In rendering this Opinion, we have confined ourselves to matters of Irish law. We express no opinion on any laws other than the laws of Ireland (and the interpretation thereof) in force as at the date hereof.

We hereby consent to the filing of this Opinion with the United States Securities and Exchange Commission as an exhibit to the Registration Statement.

Yours faithfully

/s/ A&L Goodbody

A&L Goodbody

 

2

Exhibit 23.2

Consent of KPMG, Independent Registered Public Accounting Firm

The Board of Directors

Jazz Pharmaceuticals plc:

We consent to the incorporation by reference in the registration statement on Form S-8 of Jazz Pharmaceuticals plc of our reports dated February 25, 2014, with respect to the consolidated balance sheets of Jazz Pharmaceuticals plc as of December 31, 2013 and 2012, and the related consolidated statements of income, comprehensive income, shareholders’ equity, and cash flows for each of the years in the two-year period ended December 31, 2013, and the related financial statement schedule, and the effectiveness of internal control over financial reporting as of December 31, 2013, which reports appear in the December 31, 2013 annual report on Form 10-K of Jazz Pharmaceuticals plc.

/s/ KPMG

Dublin, Ireland

February 25, 2014

Exhibit 23.3

Consent of Ernst & Young LLP, Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2011 Equity Incentive Plan and the 2007 Amended and Restated Non-Employee Directors Stock Option Plan, in each case, of Jazz Pharmaceuticals plc (the Successor) of our report dated February 28, 2012, with respect to the consolidated statements of operations, comprehensive income, stockholders’ equity, and cash flows of Jazz Pharmaceuticals, Inc. (the Predecessor) and its subsidiaries for the year ended December 31, 2011, and the related financial statement schedule for 2011, included in the Annual Report (Form 10-K) of Jazz Pharmaceuticals plc for the year ended December 31, 2013.

/s/ Ernst & Young LLP

Redwood City, California

February 25, 2014