As filed with the Securities and Exchange Commission
on May 9, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8 REGISTRATION STATEMENT
Under
The
Securities Act of 1933
EDGEWISE THERAPEUTICS, INC.
(Exact name of registrant as specified in its
charter)
| Delaware |
|
82-1725586 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
1715
38th Street
Boulder, CO 80301
(720) 262-7002
(Address, including zip code, and telephone
number, including area code, of Registrant’s principal executive
offices)
2021 Equity Incentive Plan
2021 Employee Stock Purchase Plan
(Full title of the plan)
Kevin Koch, Ph.D.
President and Chief Executive Officer
Edgewise Therapeutics, Inc.
1715
38th Street
Boulder, CO 80301
(720) 262-7002
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Kenneth A. Clark
Tony Jeffries
Jennifer Knapp
Wilson Sonsini Goodrich & Rosati
Professional Corporation
1881 9th Street, Suite 110
Boulder, CO 80302-5148
(303) 256-5900 |
R. Michael Carruthers
Chief Financial Officer
Edgewise Therapeutics, Inc.
1715
38th Street
Boulder, CO 80301
(720) 262-7002 |
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 |
¨ |
Accelerated
filer |
¨ |
| |
|
|
|
| Non-accelerated filer |
x |
Smaller reporting company |
x |
| |
|
|
|
| |
|
Emerging growth company |
x |
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. ¨
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item
2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (this “Registration Statement”)
in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and
the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8
will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under
the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of
Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. |
Incorporation of Documents by Reference. |
Edgewise Therapeutics, Inc. (the “Registrant”)
hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange
Commission (the “Commission”):
| (5) | All other reports filed with the Commission pursuant to Sections
13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”) since the end of the fiscal year covered by the Registrant’s Annual Report
referred to in (1) above; and |
All documents filed by the Registrant pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act on or after the date of this Registration Statement and prior to the
filing of a post-effective amendment to this Registration Statement that indicates that all securities offered have been sold or that
deregisters all securities then remaining unsold shall be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the date of filing of such documents; provided, however, that documents or information deemed to have
been furnished and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into 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 for purposes of this Registration Statement to the extent that a statement contained herein or in
any subsequently filed document which also 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. |
Section 145 of the Delaware General Corporation
Law empowers a corporation to indemnify its directors and officers and to purchase insurance with respect to liability arising out of
their capacity or status as directors and officers, provided that the person acted in good faith and in a manner the person reasonably
believed to be in our best interests, and, with respect to any criminal action, had no reasonable cause to believe the person’s
actions were unlawful. The Delaware General Corporation Law further provides that the indemnification permitted thereunder shall not
be deemed exclusive of any other rights to which the directors and officers may be entitled under the corporation’s bylaws, any
agreement, a vote of stockholders or otherwise. The Amended and Restated Certificate of Incorporation of the Registrant provides for
the indemnification of the Registrant’s directors and officers to the fullest extent permitted under the Delaware General Corporation
Law. In addition, the Amended and Restated Bylaws of the Registrant require the Registrant to fully indemnify any person who was or is
a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (whether civil, criminal,
administrative or investigative) by reason of the fact that such person is or was a director or officer of the Registrant, or is or was
a director or officer of the Registrant serving at the Registrant’s request as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorney’s fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, to
the fullest extent permitted by applicable law.
Section 102(b)(7) of the Delaware General
Corporation Law permits a corporation to provide in its certificate of incorporation that a director or officer of the corporation shall
not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director or officer,
except (1) for any breach of the director’s or officer’s duty of loyalty to the corporation or its stockholders, (2) for
acts or omissions by a director or officer not in good faith or which involve intentional misconduct or a knowing violation of law, (3) for
payments of unlawful dividends or unlawful stock repurchases or redemptions made to a director,(4) for any transaction from which
the director or officer derived an improper personal benefit or (5) an officer in any action by or in the right of the corporation.
The Amended and Restated Certificate of Incorporation of the Registrant provides that the Registrant’s directors shall not be personally
liable to it or its stockholders for monetary damages for breach of fiduciary duty as a director and that if the Delaware General Corporation
Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability
of the Registrant’s directors shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation
Law, as so amended.
Section 174 of the Delaware General Corporation
Law provides, among other things, that a director who willfully or negligently approves of an unlawful payment of dividends or an unlawful
stock purchase or redemption may be held liable for such actions. A director who was either absent when the unlawful actions were approved,
or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered in the books containing minutes
of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice
of the unlawful acts.
As permitted by the Delaware General Corporation
Law, the Registrant has entered into separate indemnification agreements with each of the Registrant’s directors and certain of
the Registrant’s officers which require the Registrant, among other things, to indemnify them against certain liabilities which
may arise by reason of their status as directors, officers or certain other employees.
The Registrant expects to obtain and maintain
insurance policies under which its directors and officers are insured, within the limits and subject to the limitations of those policies,
against certain expenses in connection with the defense of, and certain liabilities which might be imposed as a result of, actions, suits
or proceedings to which they are parties by reason of being or having been directors or officers. The coverage provided by these policies
may apply whether or not the Registrant would have the power to indemnify such person against such liability under the provisions of
the Delaware General Corporation Law.
These indemnification provisions and the indemnification
agreements entered into between the Registrant and the Registrant’s officers and directors may be sufficiently broad to permit
indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising
under the Securities Act of 1933, as amended.
| Item 7. |
Exemption from Registration Claimed. |
Not applicable.
*Filed herewith.
(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:
(i) to
include any prospectus required by Section 10(a)(3) of the Securities Act;
(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 Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the effective Registration Statement;
and
(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)(1)(i) and (a)(1)(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 Exchange Act that are incorporated by reference in the Registration Statement.
(2) that,
for the purpose of determining any liability under the Securities Act, 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, each filing of the
registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
in the 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 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 Commission
such indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final adjudication of such issue.
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 Boulder, Colorado, on May 9, 2024.
| EDGEWISE THERAPEUTICS, INC. |
|
| |
|
|
| By: |
/s/
Kevin Koch |
|
| |
Kevin Koch, Ph.D. |
|
| |
President and Chief
Executive Officer |
|
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Kevin Koch, Ph.D., R. Michael Carruthers and John R. Moore as his or her true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, 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 thereto (including post-effective amendments), and to file
the same, with all exhibits thereto, and all 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 and about the premises, as fully for all intents and purposes as they, he or she might
or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them, or their, 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, as amended,
this registration statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
| /s/ Kevin Koch |
|
President, Chief Executive Officer and Director (Principal Executive Officer) |
|
May 9, 2024 |
| Kevin Koch, Ph.D. |
|
|
|
|
| |
|
|
|
|
| /s/ R. Michael Carruthers |
|
Chief Financial Officer (Principal Financial and Accounting Officer) |
|
May 9, 2024 |
| R. Michael Carruthers |
|
|
| |
|
|
| /s/ Peter Thompson |
|
Co-Founder, Chairman and Director |
|
May 9, 2024 |
| Peter Thompson, M.D. |
|
|
|
|
| |
|
|
| /s/ Alan Russell |
|
Chief Scientific Officer and Director |
|
May 9, 2024 |
| Alan Russell, Ph.D. |
|
|
|
|
| |
|
|
| /s/ Laura A. Brege |
|
Director |
|
May 9, 2024 |
| Laura A. Brege |
|
|
|
|
| |
|
|
| /s/ Badreddin Edris |
|
Co-Founder and Director |
|
May 9, 2024 |
| Badreddin Edris, Ph.D. |
|
|
|
|
| |
|
|
| /s/ Jonathan Fox |
|
Director |
|
May 9, 2024 |
| Jonathan Fox, M.D., Ph.D., FACC |
|
|
|
|
| |
|
|
|
|
| /s/ Arlene Morris |
|
Director |
|
May 9, 2024 |
| Arlene Morris |
|
|
|
|
| |
|
|
| /s/ Jonathan Root |
|
Director |
|
May 9, 2024 |
| Jonathan Root, M.D. |
|
|
|
|
Exhibit 5.1
 |
Wilson Sonsini Goodrich & Rosati
Professional Corporation
1881 9th Street, Suite 110
Boulder, Colorado 80302-5148
o: 650.493.9300
f: 866.974.7329 |
May 9, 2024
Edgewise Therapeutics, Inc.
1715 38th St.
Boulder, CO 80301
| |
Re: |
Registration
Statement on Form S-8 |
Ladies and Gentlemen:
At your request, we have
examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Edgewise Therapeutics, Inc.,
a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “Commission”)
on or about the date hereof, relating to the registration under the Securities Act of 1933, as amended (the “Act”),
shares of your common stock, par value $0.0001 per share (the “Shares”), consisting of: (i) 3,522,667 shares
of common stock to be issued under the 2021 Equity Incentive Plan (the “2021 Plan”); and (ii) 704,533 shares
of common stock to be issued under the 2021 Employee Stock Purchase Plan (the “2021 ESPP” and, together with the 2021
Plan, the “Plans”). As your legal counsel, we have reviewed the actions proposed to be taken by you in connection
with the issuance and sale of the Shares to be issued under the Plans.
On the basis of the foregoing,
and in reliance thereon, we are of the opinion that the Shares, when issued and sold in the manner described in the Plans and pursuant
to the agreements that accompany the Plans, will be legally and validly issued, fully paid, and nonassessable.
We hereby consent to
the filing of this opinion as an exhibit to the above referenced Registration Statement and to the use of our name wherever it appears
in the Registration Statement and in any amendments thereto. 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 Act or the rules and regulations of the Commission thereunder.
| |
Very truly
yours, |
| |
/s/ Wilson
Sonsini Goodrich & Rosati, P.C. |
| |
|
| |
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation |
austin
beijing
boston
BOULDER
brussels
hong kong
london
los angeles
new york
palo alto
SALT LAKE CITY
san diego
san francisco
seattle
shanghai
washington, dc
wilmington, de
Exhibit 23.1
Consent of
Independent Registered Public Accounting Firm
We consent to
the use of our report dated February 22, 2024, with respect to the financial statements of Edgewise Therapeutics, Inc., incorporated
herein by reference.
/s/ KPMG LLP
Denver, Colorado
May 9, 2024
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Edgewise Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
|
Title of Securities to be
Registered |
|
Fee
Calculation
Rule |
|
Amount
to be
Registered(1) |
|
|
Proposed
Maximum
Offering
Price
Per Share |
|
|
Maximum
Aggregate
Offering Price |
|
|
Fee Rate |
|
Amount of
Registration
Fee |
|
| Equity |
|
Common Stock, par value $0.0001 per share, reserved for issuance pursuant to the 2021 Employee Stock Purchase Plan |
|
457 (c) and (h) |
|
|
704,533 |
(2) |
|
$ |
16.76 |
(4) |
|
$ |
11,807,973.08 |
|
|
0.00014760 |
|
$ |
1,742.86 |
|
| Equity |
|
Common Stock, par value $0.0001 per share, reserved for issuance pursuant to the 2021 Equity Incentive Plan |
|
457 (c) and (h) |
|
|
3,522,667 |
(3) |
|
$ |
19.71 |
(5) |
|
$ |
69,431,766.57 |
|
|
0.00014760 |
|
$ |
10,248.13 |
|
| Total Offering Amounts |
|
$ |
81,239,739.65 |
|
|
|
|
$ |
11,990.99 |
|
| Total Fee Offset |
|
$ |
— |
|
| Net Fee Due |
|
$ |
11,990.99 |
|
| |
(1) |
Pursuant to Rule 416(a) under 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, $0.0001 par value per share ("Common Stock"), that become issuable under the Registrant’s 2021 Employee Stock Purchase Plan (the “ESPP”) or 2021 Equity Incentive Plan (the "2021 Plan") by reason of an event such as any stock split, stock dividend or similar adjustment effected without the Registrant’s receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. |
| |
(2) |
Reflects an automatic annual increase of 704,533 on January 1, 2024 to the number of shares of Registrant’s Common Stock reserved for issuance under the ESPP, which annual increase is provided for in the ESPP. |
| |
(3) |
Reflects an automatic annual increase of 3,522,667 on January 1, 2024 to the number of shares of Registrant’s Common Stock reserved for issuance under the 2021 Plan, which annual increase is provided for in the 2021 Plan. |
| |
(4) |
Estimated in accordance with paragraphs (c) and (h) of Rule 457 under the Securities Act solely for the purpose of calculating the registration fee on the basis of 85% of $19.71 per share, which represents the average of the high and low price per share of the Registrant’s common stock on May 6, 2024 as reported on the Nasdaq Global Select Market. Pursuant to the ESPP, the purchase price of the shares of the Registrant’s common stock reserved for issuance thereunder will be at least 85% of the lower of the fair market value on (i) the first trading day of the offering period or (ii) the purchase date. |
| |
(5) |
Estimated in accordance with Rules 457 (c) and (h) of the Securities Act solely for the purpose of calculating the registration fee on the basis of $19.71 per share, which represents the average of the high and low prices of the registrant’s common stock on May 6, 2024, as reported on the Nasdaq Global Select Market. |
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