Securities Registration: Employee Benefit Plan (s-8)
February 25 2021 - 4:07PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on February 25, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Albireo Pharma, Inc.
(Exact name of registrant as specified
in its charter)
Delaware
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90-0136863
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer
Identification No.)
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10 Post Office Square, Suite 1000, Boston, Massachusetts
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02109
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(Address of principal executive offices)
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(Zip code)
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Albireo Pharma, Inc. 2020 Inducement
Equity Incentive Plan
(Full title of the plan)
Jason G. Duncan
Chief Legal Officer, General Counsel
and Secretary
Albireo Pharma, Inc.
10 Post Office Square, Suite 1000
Boston, Massachusetts 02109
(857) 254-5555
(Name, address and telephone number, including
area code, of agent for service)
Copy to:
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Megan N. Gates, Esq.
John P. Condon, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C.
One Financial Center
Boston, Massachusetts 02111
(617) 542-6000
Facsimile: (617) 542-2241
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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
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging growth company
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¨
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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. ¨
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered
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Amount
to be
Registered(1)
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Proposed Maximum
Offering Price
Per Share
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Proposed Maximum
Aggregate Offering
Price
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Amount of
Registration Fee
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Common Stock, $0.01 par value per share
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300,000 shares
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$
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36.86 to $37.36
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(2)
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$
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11,159,500
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(2)
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$
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1,217.50
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(1)
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The number of shares of common stock, par value $0.01 per share (“Common Stock”),
of Albireo Pharma, Inc. (the “Registrant”) stated above consists of 300,000 shares reserved for issuance under the
Registrant’s 2020 Inducement Equity Incentive Plan (the “Plan”). The maximum
number of shares which may be sold upon the exercise of such options or issuance of stock-based awards granted under the Plan is
subject to adjustment in accordance with certain antidilution and other provisions of the Plan. Accordingly, pursuant to Rule 416
under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement covers, in addition
to the number of shares stated above, an indeterminate number of shares which may be subject to grant or otherwise issuable after
the operation of any such antidilution and other provisions.
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(2)
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Estimated solely for the purpose of calculating the amount of the registration fee pursuant
to Rule 457(c) and Rule 457(h) promulgated under the Securities Act. The offering price per share and the aggregate offering price
for shares (a) issuable upon the exercise of outstanding options granted under the Plan are based upon the weighted-average
exercise price of such outstanding options and (b) reserved for future grant or issuance under the Plan are based on the average
of the high and the low price of the Registrant’s Common Stock as reported on The Nasdaq Capital Market as of a date (February
22, 2021) within five business days prior to filing this Registration Statement. The chart below details the calculation of the
registration fee:
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Securities
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Number of
Shares
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Offering Price
Per Share (2)
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Aggregate
Offering Price
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Shares issuable upon the exercise of outstanding options granted under the Plan
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97,000
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$
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36.86(2)
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(a)
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$
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3,575,420
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Shares reserved for future grant under the Plan
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203,000
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$
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37.36(2)
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(b)
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$
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7,584,080
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Proposed maximum aggregate offering price
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300,000
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$
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11,159,500
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Registration fee
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$
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1,217.50
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EXPLANATORY NOTE
This Registration Statement registers 300,000
shares (the “Shares”) of common stock, par value $0.01 per share, of the Registrant (the “Common Stock”)
reserved for issuance under the Registrant’s 2020 Inducement Equity Incentive Plan (the “Plan”). In accordance
with the instructional Note to Part I of Form S-8 as promulgated by the Securities and Exchange Commission (the “Commission”),
the information specified by Part I of Form S-8 has been omitted from this Registration Statement on Form S-8 with respect to the
Shares.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant
with the Commission are incorporated herein by reference:
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020 filed with the Commission on February 25, 2021;
(b) the Registrant’s Current Report
on Form 8-K filed with the Commission on January 25, 2021; and
(c) the description of the Registrant’s Common Stock which is contained in the Registrant’s Registration Statement on Form 8-A filed with the Commission on May 8, 2007, including any amendment or report filed for the purpose of updating such description.
The SEC file number for each of the documents
listed above is 001-33451.
All reports and other documents filed by
the Registrant after the date hereof pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended, prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be part hereof
from the date of filing of such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated
by reference herein shall be deemed to be modified or superseded for the purposes of this Registration Statement 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 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.
None.
Item 6. Indemnification of Directors
and Officers.
The Registrant’s restated certificate
of incorporation and its restated bylaws provide that the Registrant shall indemnify its directors and officers to the fullest
extent not prohibited by the Delaware General Corporation Law or any other applicable law, except that the Registrant is not required
to indemnify any director or executive officer in connection with any proceeding (or part thereof) initiated by such person unless
(i) such indemnification is expressly required to be made by law, (ii) the proceeding was authorized by the Registrant’s
board of directors, (iii) the Registrant provides such indemnification, in its sole discretion, pursuant to the powers vested in
the Registrant under the Delaware General Corporation Law or any other applicable law, or (iv) such indemnification is required
to be made under the enforcement provisions of the Registrant’s restated bylaws.
Section 145 of the Delaware General
Corporation Law permits a corporation to indemnify any director or officer of the corporation against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with
any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer of the
corporation, if such person acted in good faith and in a manner that he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation, and, with respect to any criminal action or proceeding, if he or she had no
reasonable cause to believe his or her conduct was unlawful. In a derivative action (i.e., one brought by or on behalf of the
corporation), indemnification may be provided only for expenses actually and reasonably incurred by any director or officer
in connection with the defense or settlement of such an action or suit if such person acted in good faith and in a manner
that he or she reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no
indemnification shall be provided if such person shall have been adjudged to be liable to the corporation, unless and only to
the extent that the Delaware Chancery Court or the court in which the action or suit was brought shall determine that such
person is fairly and reasonably entitled to indemnity for such expenses despite such adjudication of liability.
Pursuant to Section 102(b)(7) of the Delaware
General Corporation Law, Article Sixth of the Registrant’s restated certificate of incorporation eliminates the liability
of a director to the Registrant or its stockholders for monetary damages for such a breach of fiduciary duty as a director to the
fullest extent under applicable law, which does not include liabilities arising:
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from any breach of the director’s duty of loyalty to the Registrant or its stockholders;
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from acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
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under Section 174 of the Delaware General Corporation Law; and
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from any transaction from which the director derived an improper personal benefit.
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The Registrant has entered into indemnification
agreements with its directors and executive officers, in addition to the indemnification provided in its restated certificate of
incorporation and its restated bylaws, and intends to enter into indemnification agreements with any new directors and executive
officers in the future. The Registrant has purchased and intends to maintain insurance on behalf of any person who is or was a
director or officer against any loss arising from any claim asserted against him or her and incurred by him or her in any such
capacity, subject to certain exclusions.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number
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Exhibit Description
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Filed Herewith
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Incorporated by Reference herein from Form or Schedule
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Filing Date
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SEC File/Reg. Number
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4.1.1
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Restated Certificate of Incorporation, as amended, of the Registrant.
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S-3 (Exhibit 4.1.1)
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10/13/2017
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333-220958
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4.2
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Amended and Restated Bylaws of the Registrant.
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S-8 (Exhibit 4.2)
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7/6/2007
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333-144407
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4.3
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Form of common stock certificate.
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10-K (Exhibit 4.1)
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12/22/2016
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001-33451
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5.1
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Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. with respect to the legality of the securities being registered.
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X
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23.1
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Consent of Ernst & Young LLP.
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X
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23.2
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Consent of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. (included in Exhibit 5.1).
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X
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24.1
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Powers of Attorney (included on the signature page to this registration statement).
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X
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99.1
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Albireo Pharma, Inc. 2020 Inducement Equity Incentive Plan.
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10-Q (Exhibit 10.1)
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11/5/2020
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001-33451
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99.2
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Form of Stock Option Agreement under the Albireo Pharma, Inc. 2020 Inducement Equity Incentive Plan.
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10-Q (Exhibit 10.2)
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11/5/2020
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001-33451
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99.3
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Form of Restricted Stock Unit Agreement under the Albireo Pharma, Inc. 2020 Inducement Equity Incentive Plan.
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10-Q (Exhibit 10.3)
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11/5/2020
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001-33451
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Item 9. Undertakings.
(a) The undersigned
Registrant hereby undertakes:
(1) To file,
during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
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(i)
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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(ii)
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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% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
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(iii)
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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;
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Provided, however, that paragraphs
(1)(i) and (1)(ii) of this section 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 in the Registration Statement.
(2) 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 therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) 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.
(b) 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 that is incorporated
by reference in this Registration Statement shall be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) 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 indemnification provisions summarized in Item 6, 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 Act
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 Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. 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 February 25, 2021.
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ALBIREO PHARMA, INC.
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By:
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/s/ Ronald H.W. Cooper
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Ronald H.W. Cooper
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President and Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
We, the undersigned officers and directors
of Albireo Pharma, Inc., hereby severally constitute and appoint Ronald H.W. Cooper, Simon N.R. Harford and Jason G. Duncan, and
each of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution in each of them for him or her and in his or her name, place and stead, and in any and
all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8
of Albireo Pharma, Inc., 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 or necessary to be done in and about the premises, as full 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 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 below by the following persons in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/ Ronald H.W. Cooper
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President, Chief Executive Officer and Director (principal executive officer)
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February 25, 2021
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Ronald H.W. Cooper
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/s/ Simon N.R. Harford
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Chief Financial Officer (principal financial officer and principal accounting officer)
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February 25, 2021
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Simon N.R. Harford
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/s/ David Chiswell, Ph.D.
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Chairman of the Board of Directors
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February 25, 2021
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David Chiswell, Ph.D.
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/s/ Anne Klibanski, M.D.
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Director
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February 25, 2021
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Anne Klibanski, M.D.
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/s/ Michael Gutch, Ph.D.
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Director
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February 25, 2021
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Michael Gutch, Ph.D.
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/s/ Roger A. Jeffs, Ph.D.
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Director
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February 25, 2021
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Roger A. Jeffs, Ph.D.
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/s/ Stephanie S. Okey, M.S.
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Director
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February 25, 2021
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Stephanie S. Okey, M.S.
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/s/ Davey S. Scoon
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Director
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February 25, 2021
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Davey S. Scoon
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