Securities Registration: Employee Benefit Plan (s-8)
March 09 2023 - 3:03PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission
on March 9, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
BLACK DIAMOND THERAPEUTICS, INC.
(Exact name of registrant as specified in its
charter)
Delaware |
81-4254660 |
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification Number) |
|
|
One Main Street, 14th Floor
Cambridge, Massachusetts |
02142 |
(Address of Principal Executive Offices) |
(Zip Code) |
Black Diamond Therapeutics, Inc. 2020 Stock
Option and Incentive Plan (the “2020 Plan”)
Black Diamond Therapeutics, Inc. 2020 Employee
Stock Purchase Plan (the “2020 ESPP”)
(Full Title of the Plans)
David M. Epstein, Ph.D.
President and Chief Executive Officer
Black Diamond Therapeutics, Inc.
One Main Street, 14th Floor
Cambridge, Massachusetts 02142
(617) 252-0848
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Robert E. Puopolo, Esq.
Mitchell S. Bloom, Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
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. ¨
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this
“Registration Statement”) is filed for the purposes of registering (i) an additional 1,457,371 shares of common stock, par
value $0.0001 per share (the “common stock”), of Black Diamond Therapeutics, Inc. (the “Registrant”) that may
be issued pursuant to the 2020 Plan and (ii) an additional 326,364 shares of common stock that may be issued pursuant to the 2020 ESPP.
The number of shares of common stock reserved and available for issuance under the 2020 Plan is subject to an annual increase on each
January 1 by an amount equal to the lesser of: (i) four percent (4%) of the number of shares of common stock issued and outstanding
on the immediately preceding December 31, or (ii) such lesser number of shares of common stock as determined by the Administrator
(as defined in the 2020 Plan). Accordingly, on January 1, 2023, the number of shares of common stock reserved and available for issuance
under the 2020 Plan increased by 1,457,371. This Registration Statement registers these additional 1,457,371 shares of common stock. The
additional shares are of the same class as other securities relating to the 2020 Plan for which the Registrant’s registration statements
filed on Form S-8 (File No. 333-236170, File No. 333-254686, and File No. 333-263648) filed with the Securities and Exchange
Commission (the “SEC”) on January 30, 2020, March 25, 2021, and March 17, 2022, respectively, are effective. The number of
shares of common stock reserved and available for issuance under the 2020 ESPP is subject to an annual increase on each January 1
by an amount equal to the least of (i) 326,364 shares of common stock, (ii) one percent (1%) of the number of shares of common stock issued
and outstanding on the immediately preceding December 31, or (iii) such lesser number of shares of common stock as determined by
the Administrator (as defined in the 2020 ESPP). Accordingly, on January 1, 2023, the number of shares of common stock reserved and
available for issuance under the 2020 ESPP increased by 326,364. This Registration Statement registers these additional 326,364 shares
of common stock. The additional shares are of the same class as other securities relating to the 2020 ESPP for which the Registrant’s
registration statements filed on Form S-8 (File No. 333-236170, File No. 333-254686, and File No. 333-263648) filed with
the SEC on January 30, 2020, March 25, 2021, and March 17, 2022 respectively, are effective. The information contained in the Registrant’s
registration statements on Form S-8 (File No. 333-236170, File No. 333-254686, and File No. 333-263648) is hereby incorporated
by reference pursuant to General Instruction E, except for “Item 8. Exhibits.”
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
See the Exhibit Index for a list of exhibits filed as part of this
Registration Statement, which Exhibit Index is incorporated herein by reference.
EXHIBIT INDEX
Exhibit No. |
|
Description |
|
|
4.1 |
|
Fourth Amended and Restated Certificate of Incorporation of the Registrant, as currently in effect (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K (File No. 001-39200) filed on February 3, 2020) |
|
|
|
4.2 |
|
Amended and Restated By-laws of the Registrant, as currently in effect (incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K (File No. 001-39200) filed on February 3, 2020) |
|
|
|
4.3 |
|
Second Amended and Restated Investors’ Rights Agreement among the Registrant and certain of its stockholders, dated November 25, 2019 (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-1 (File No. 333-235789) filed on January 3, 2020) |
|
|
|
4.4 |
|
Warrant to Purchase Stock, dated September 21, 2016, issued by the Registrant to Roche Finance Ltd (incorporated by reference to Exhibit 4.3 of the Registrant’s Registration Statement on Form S-1 (File No. 333-235789) filed on January 3, 2020) |
|
|
|
4.5 |
|
2020 Stock Option and Incentive Plan and forms of award agreements thereunder (incorporated by reference to Exhibit 10.2 of the Registrant’s Registration Statement on Form S-1/A (File No. 333-235789) filed on January 21, 2020) |
|
|
|
4.6 |
|
2020 Employee Stock Purchase Plan (incorporated by reference to
Exhibit 10.4 of the Registrant’s Registration Statement on Form S-1/A (File No. 333-235789) filed on January 21, 2020) |
|
|
|
5.1* |
|
Opinion of Goodwin Procter LLP. |
|
|
23.1* |
|
Consent of PricewaterhouseCoopers LLP, Independent Registered Public Accounting Firm. |
|
|
23.2* |
|
Consent of Goodwin Procter LLP (included in Exhibit 5.1). |
|
|
24.1* |
|
Power of Attorney (included on signature page to this registration statement). |
|
|
|
107* |
|
Filing Fee Table. |
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 Cambridge, State of Massachusetts, on the 9th day of March, 2023.
|
BLACK DIAMOND THERAPEUTICS, INC. |
|
|
|
|
By: |
/s/ David M. Epstein |
|
|
David M. Epstein
President and Chief Executive Officer |
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL BY THESE PRESENT, that each individual
whose signature appears below hereby constitutes and appoints David M. Epstein and Brent Hatzis-Schoch, and each of them, either of whom
may act without the joinder of the other, 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 any and all amendments (including
post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission granting unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary to be done in 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 his or their 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 has been signed by the following persons in the capacities and on the date indicated
below.
Name |
|
Title |
|
Date |
|
|
|
/s/ David M.
Epstein
David M. Epstein |
|
President, Chief Executive Officer and Director (Principal Executive Officer) |
|
March 9, 2023 |
|
|
|
/s/ Fang Ni
Fang Ni |
|
Chief Business and Financial Officer
(Principal Financial Officer) |
|
March 9, 2023 |
|
|
|
/s/ Erika Jones |
|
Vice President, Finance and Corporate Controller
(Principal Accounting Officer) |
|
March 9, 2023 |
Erika Jones |
|
|
|
|
|
/s/ Mark A.
Velleca
Mark A. Velleca |
|
Chairman and Director |
|
March 9, 2023 |
|
|
|
/s/ Ali Behbahani
Ali Behbahani |
|
Director |
|
March 9, 2023 |
|
|
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/s/ Kapil Dhingra
Kapil Dhingra |
|
Director |
|
March 9, 2023 |
|
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/s/ Wendy Dixon |
|
Director |
|
March 9, 2023 |
Wendy Dixon |
|
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/s/ Samarth
Kulkarni
Samarth Kulkarni |
|
Director |
|
March 9, 2023 |
|
|
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/s/ Alexander
Mayweg
Alexander Mayweg |
|
Director |
|
March 9, 2023 |
|
|
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/s/ Garry E.
Menzel
Garry E. Menzel |
|
Director |
|
March 9, 2023 |
|
|
|
/s/ Rajeev Shah
Rajeev Shah |
|
Director |
|
March 9, 2023 |
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