As filed with the Securities and Exchange Commission on August 13, 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
CIDARA THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
| | | | | | | | |
Delaware | | 46-1537286 |
| (State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
| | |
6310 Nancy Ridge Drive, Suite 101 San Diego, California | | 92121 |
(Address of Principal Executive Offices) | | (Zip Code) |
Cidara Therapeutics, Inc. 2020 Inducement Incentive Plan
Cidara Therapeutics, Inc. 2024 Equity Incentive Plan
(Full titles of the plans)
Jeffrey Stein, Ph.D.
President and Chief Executive Officer
Cidara Therapeutics, Inc.
6310 Nancy Ridge Drive, Suite 101
San Diego, California 92121
(858) 752-6170
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
| | | | | | | | |
| | |
Charles J. Bair, Esq. Cooley LLP 10265 Science Center Drive San Diego, California 92121 (858) 550-6000 | | Jeffrey Stein, Ph.D. President and Chief Executive Officer Cidara Therapeutics, Inc. 6310 Nancy Ridge Drive, Suite 101 San Diego, California 92121 |
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 | | o | | Accelerated filer | | o |
| Non-accelerated filer | | x | | Smaller reporting company | | x |
| | | | Emerging growth company | | o |
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. o
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed by Cidara Therapeutics, Inc. (the “Registrant”) for the purpose of registering (i) 3,225,586 shares of the Registrant’s Common Stock, par value $0.0001 per share (“Common Stock”), under the Registrant’s 2024 Equity Incentive Plan (the “2024 Plan”), consisting of (a) 2,334,000 new shares of Common Stock reserved for issuance under the 2024 Plan, (b) 165,125 shares of Common Stock that remained available for future grants under the Registrant’s 2015 Equity Incentive Plan (the “Prior Plan”) immediately prior to the July 18, 2024 effective date of the 2024 Plan (the “Effective Date”), and (c) up to 726,461 shares of Common Stock subject to a stock award granted under the Prior Plan that is outstanding as of the Effective Date (each award, a “Prior Plan Award”) (or issued pursuant to a Prior Plan Award, as applicable) that on or after 12:01 a.m. Pacific Standard Time on the Effective Date: (A) are not issued because such Prior Plan Award or any portion thereof expires or otherwise terminates without all of the shares covered by such Prior Plan Award having been issued; (B) are not issued because such Prior Plan Award or any portion thereof is settled in cash; (C) are forfeited back to or repurchased by the Registrant because of the failure to meet a contingency or condition required for the vesting of such shares; (D) are reacquired or withheld (or not issued) by the Registrant to satisfy the exercise or purchase price of such Prior Plan Award; (E) are reacquired or withheld (or not issued) by the Registrant to satisfy the tax withholding obligation in connection with such Prior Plan Award; or (F) are repurchased by the Registrant on the open market with the proceeds of the exercise or purchase price of such Prior Plan Award, and (ii) 225,000 additional shares of Common Stock reserved for issuance under the Registrant’s 2020 Inducement Incentive Plan (the “Inducement Plan”) to employees of the Registrant as an inducement material to entry into employment with the Registrant, in accordance with Nasdaq Listing Rule 5635(c)(4). The (i) 2024 Plan was adopted by the Registrant’s Board of Directors (the “Board”) on May 22, 2024, subject to stockholder approval, which was obtained at the Annual Meeting of Stockholders held on July 18, 2024 and (ii) amendment to the Inducement Plan to provide for the additional shares of Common Stock was approved by the Compensation Committee of the Board on July 18, 2024.
Pursuant to General Instruction E to Form S-8, and only with respect to the Common Stock being registered under the Inducement Plan, this Registration Statement incorporates by reference the contents of the Registration Statements on Form S-8 previously filed with the Securities and Exchange Commission (the “Commission”) on February 25, 2021 (File No. 333-253545) and August 31, 2021 (File No. 333-259219).
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended (the “Securities Act”), and the instructions to Form S-8. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Commission:
•The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the Commission on April 22, 2024;
•The Registrant’s Quarterly Reports on Form 10-Q for the quarterly period ended March 31, 2024 and June 30, 2024, filed with the Commission on May 15, 2024 and August 13, 2024;
•The Registrant’s Current Reports on Form 8-K filed with the Commission on February 9, 2024, April 5, 2024, April 16, 2024, April 22, 2024, April 24, 2024, April 24, 2024 as amended by the Form 8-K/A filed with the Commission on April 29, 2024, May 3, 2024, May 20, 2024, and July 18, 2024 (other than the portions thereof which are furnished and not filed); and
•The description of the Registrant’s Common Stock, which is registered under Section 12 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), filed as Exhibit 4.4 to the Registrant’s Quarterly Report on 10-Q filed with the Commission on August 13, 2020, including any amendments or reports filed for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this Registration Statement and 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 into this Registration Statement and to be a part hereof from the date of filing of such documents; provided, however, that documents or portions thereof that are 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 herein or in any other subsequently filed document that 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 constitute a part of this Registration Statement, except as so modified or superseded.
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 authorizes a court to award, or a corporation’s board of directors to grant indemnity to directors and officers under certain circumstances and subject to certain limitations. The terms of Section 145 of the Delaware General Corporation Law are sufficiently broad to permit indemnification under certain circumstances for liabilities, including reimbursement of expenses incurred, arising under the Securities Act.
As permitted by the Delaware General Corporation Law, the Registrant’s amended and restated certificate of incorporation contains provisions that eliminate the personal liability of its directors for monetary damages for any breach of fiduciary duties as a director, except liability for the following:
•any breach of the director’s duty of loyalty to the Registrant or its stockholders;
•acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law;
•under Section 174 of the Delaware General Corporation Law (regarding unlawful dividends and stock purchases); or
•any transaction from which the director derived an improper personal benefit.
As permitted by the Delaware General Corporation Law, the Registrant’s amended and restated bylaws provide that:
•the Registrant is required to indemnify its directors and executive officers to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions;
•the Registrant may indemnify its other employees and agents as set forth in the Delaware General Corporation Law;
•the Registrant is required to advance expenses, as incurred, to its directors and executive officers in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to very limited exceptions; and
•the rights conferred in the amended and restated bylaws are not exclusive.
The Registrant has entered, and intends to continue to enter, into separate indemnification agreements with its directors and executive officers to provide these directors and executive officers additional contractual assurances regarding the scope of the indemnification set forth in the Registrant’s amended and restated certificate of incorporation and amended and restated bylaws and to provide additional procedural protections. At present, there is no pending litigation or proceeding involving a director or executive officer of the Registrant regarding which indemnification is sought. The indemnification provisions in the Registrant’s amended and restated certificate of incorporation, amended and restated bylaws and the indemnification agreements entered into or to be entered into between the Registrant and each of its directors and executive officers may be sufficiently broad to permit indemnification of the Registrant’s directors and executive officers for liabilities arising under the Securities Act. 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 Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
The Registrant currently carries liability insurance for its directors and officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The exhibits to this Registration Statement are listed below:
| | | | | |
| Exhibit Number | Description |
| 4.1 | |
| 4.2 | |
| 4.3 | |
| 4.4 | |
| 4.5 | |
| 4.6 | |
| 4.7 | |
| 5.1* | |
| 23.1* | |
| 23.2* | |
| 24.1* | |
| 99.1 | |
| 99.2 | |
| 99.3 | |
| 99.4 | |
| 107* | |
* Filed herewith.
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (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 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table 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 Registration Statement is on Form S-8, and 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 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 San Diego, State of California, on August 13, 2024.
| | | | | | | | | | | |
| CIDARA THERAPEUTICS, INC. |
| | |
| By: | | /s/ Jeffrey Stein, Ph.D. |
| | | Jeffrey Stein, 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 Jeffrey Stein, Ph.D. and Preetam Shah, Ph.D., MBA, and each of them, as his/her true and lawful attorney-in-fact and agent, each acting alone, with full power of substitution and resubstitution, for him/her and in his/her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, 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 his/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 has been signed by the following persons in the capacities and on the dates indicated.
| | | | | | | | | | | | | | |
| Signature | | Title | | Date |
| | | | |
| /s/ Jeffrey Stein, Ph.D. | | President, Chief Executive Officer and Member of the Board of Directors (Principal Executive Officer) | | August 13, 2024 |
| Jeffrey Stein, Ph.D. | | | |
| | | | |
/s/ Preetam Shah, Ph.D., MBA | | Chief Financial Officer and Chief Business Officer (Principal Financial Officer and Principal Accounting Officer) | | August 13, 2024 |
Preetam Shah, Ph.D., MBA | | | |
| | | | |
| /s/ Daniel D. Burgess | | Chairman of the Board of Directors | | August 13, 2024 |
| Daniel D. Burgess | | | | |
| | | | |
| /s/ Bonnie Bassler, Ph.D. | | Member of the Board of Directors | | August 13, 2024 |
| Bonnie Bassler, Ph.D. | | | | |
| | | | |
| /s/ Carin Canale-Theakston | | Member of the Board of Directors | | August 13, 2024 |
| Carin Canale-Theakston | | | | |
| | | | |
| /s/ James Merson | | Member of the Board of Directors | | August 13, 2024 |
| James Merson | | | | |
| | | | |
| /s/ Chrysa Mineo | | Member of the Board of Directors | | August 13, 2024 |
| Chrysa Mineo | | | | |
| | | | |
| /s/ Theodore R. Schroeder | | Member of the Board of Directors | | August 13, 2024 |
| Theodore R. Schroeder | | | | |
| | | | |
| /s/ Ryan Spencer | | Member of the Board of Directors | | August 13, 2024 |
| Ryan Spencer | | | | |
| | | | |
| /s/ Laura Tadvalkar, Ph.D. | | Member of the Board of Directors | | August 13, 2024 |
| Laura Tadvalkar, Ph.D. | | | | |
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Cidara Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
| | | | | | | | | | | | | | | | | | | | | | | | | | |
| Table 1 – Newly Registered Securities |
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Share(2) | Maximum Aggregate Offering Price(2) | Fee Rate | Amount of Registration Fee |
| Fees to be Paid | Equity | Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the Cidara Therapeutics, Inc. 2020 Inducement Incentive Plan | Other | 225,000(3) | $11.270 | $2,535,750 | 0.0001476 | $375 |
| Fees to be Paid | Equity | Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the Cidara Therapeutics, Inc. 2024 Equity Incentive Plan | Other | 3,225,586(4) | $11.270 | $36,352,355 | 0.0001476 | $5,366 |
| Total Offering Amounts | | $38,888,105 | | $5,741 |
| Total Fee Offsets | | | | – |
| Net Fee Due | | | | $5,741 |
(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 Common Stock, par value $0.0001 per share (“Common Stock”), of Cidara Therapeutics, Inc. (the “Registrant”) that become issuable under the Registrant’s 2020 Inducement Incentive Plan (the “Inducement Plan”) and the Registrant’s 2024 Equity Incentive Plan (the “2024 Plan”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without receipt of consideration which results in an increase in the number of outstanding shares of Common Stock.
(2) This estimate is made pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on August 7, 2024, as reported on the Nasdaq Capital Market.
(3) Represents an increase in the number of shares of Common Stock reserved for issuance under the Inducement Plan pursuant to an amendment to the Inducement Plan approved by the Compensation Committee of the Board of Directors of the Registrant on July 18, 2024.
(4) Represents the sum of (i) 2,334,000 new shares of Common Stock reserved for issuance under the 2024 Plan, (ii) 165,125 shares of Common Stock that remained available for future grants under the Registrant’s 2015 Equity Incentive Plan (the “Prior Plan”) immediately prior to the July 18, 2024 effective date of the 2024 Plan (the “Effective Date”), and (iii) up to 726,461 shares of Common Stock subject to a stock award granted under the Prior Plan that is outstanding as of the Effective Date (each award, a “Prior Plan Award”) (or issued pursuant to a Prior Plan Award, as applicable) that on or after 12:01 a.m. Pacific Standard Time on the Effective Date: (A) are not issued because such Prior Plan Award or any portion thereof expires or otherwise terminates without all of the shares covered by such Prior Plan Award having been issued; (B) are not issued because such Prior Plan Award or any portion thereof is settled in cash; (C) are forfeited back to or repurchased by the Registrant because of the failure to meet a contingency or condition required for the vesting of such shares; (D) are reacquired or withheld (or not issued) by the Registrant to satisfy the exercise or purchase price of such Prior Plan Award; (E) are reacquired or withheld (or not issued) by the Registrant to satisfy the tax withholding obligation in connection with such Prior Plan Award; or (F) are repurchased by the Registrant on the open market with the proceeds of the exercise or purchase price of such Prior Plan Award.
Charles J. Bair
+1 858 550 6142
cbair@cooley.com
August 13, 2024
Cidara Therapeutics, Inc.
6310 Nancy Ridge Drive, Suite 101
San Diego, California 92121
Re: Registration Statement on Form S-8
Ladies and Gentlemen:
We have acted as counsel to Cidara Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 3,450,586 shares (the “Shares”) of the Company’s common stock, $0.0001 par value per share (“Common Stock”), consisting of (a) 3,225,586 shares of Common Stock issuable pursuant to the Company’s 2024 Equity Incentive Plan (the “2024 Plan”) and (b) 225,000 shares of Common Stock issuable pursuant to the Company’s 2020 Inducement Incentive Plan (together with the 2024 Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the related prospectuses, (b) the Plans, (c) the Company’s certificate of incorporation, and bylaws, each as currently in effect, and (d) such other records, documents, opinions, certificates, memoranda and instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and the related prospectuses, will be validly issued, fully paid and nonassessable (except as to shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).
Cooley LLP 10265 Science Center Drive San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
This opinion is limited to the matters expressly set forth in this letter, and no opinion has been or should be implied, or may be inferred, beyond the matters expressly stated. This opinion speaks only as to law and facts in effect or existing as of the date hereof and we have no obligation or responsibility to update or supplement this opinion to reflect any facts or circumstances that may hereafter come to our attention or any changes in law that may hereafter occur.
We consent to the filing of 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 of 1933, as amended, or the rules and regulations of the Commission thereunder.
Sincerely,
Cooley LLP
By: /s/ Charles J. Bair
Charles J. Bair
Cooley LLP 10265 Science Center Drive San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2020 Inducement Incentive Plan and 2024 Equity Incentive Plan of Cidara Therapeutics, Inc. of our report dated April 22, 2024, with respect to the consolidated financial statements of Cidara Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Diego, California
August 13, 2024
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