As filed with the Securities and Exchange Commission on March 30, 2022
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
AEROVATE THERAPEUTICS, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 83-1377888 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification No.) |
930 Winter Street, Suite M-500
Waltham, MA 02451
(617) 443-2400
(Address, including zip code and telephone number, including area code, of Registrant’s principal executive offices)
Aerovate Therapeutics, Inc. 2021 Stock Option and Incentive Plan
(Full title of the plans)
Timothy P. Noyes
Chief Executive Officer
Aerovate Therapeutics, Inc.
930 Winter Street, Suite M-500
Waltham, MA 02451
(617) 443-2400
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Edwin M. O’Connor, Esq.
Alicia M. Tschirhart, 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 | ☒ | Smaller reporting company | ☒ | |
| Emerging growth company | ☒ |
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. ☒
STATEMENT OF INCORPORATION BY REFERENCE
This Registration Statement on Form S-8 is filed to register the offer and sale of an additional 976,415 shares of the Registrant’s common stock, $0.0001 par value per share, to be issued under the Registrant’s 2021 Stock Option and Incentive Plan. This Registration Statement incorporates by reference the contents of the registration statement on Form S-8, File No. 333-257579, filed by the Registrant on June 30, 2021, relating to the Registrant’s 2021 Stock Option and Incentive Plan pursuant to General Instruction E.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 8. | Exhibits. |
The exhibits to this Registration Statement are listed in the Exhibit Index attached hereto and incorporated by reference herein.
EXHIBIT INDEX
| * | Filed herewith. |
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 Waltham, Commonwealth of Massachusetts, on this 30 day of March, 2022.
| AEROVATE THERAPEUTICS, INC. | ||
| By: | /s/ Timothy P. Noyes | |
| Name: | Timothy P. Noyes | |
| Title: | Chief Executive Officer and Director | |
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL BY THESE PRESENT, that each individual whose signature appears below hereby constitutes and appoints each of Timothy P. Noyes and George A. Eldridge as such person’s true and lawful attorney-in-fact and agent with full power of substitution and resubstitution, for such person in such person’s 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 such person might or could do in person, hereby ratifying and confirming all that any said attorney-in-fact and agent, or any substitute or substitutes of any of them, 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 person in the capacities and on the date indicated.
| NAME | TITLE | DATE | ||
| /s/ Timothy P. Noyes | Chief Executive Officer and Director | March 30, 2022 | ||
| Timothy P. Noyes | Principal Executive Officer | |||
| /s/ George A. Eldridge | Chief Financial Officer | March 30, 2022 | ||
| George A. Eldridge | Principal Financial Officer and Principal Accounting Officer | |||
| /s/ Allison Dorval | Director | March 30, 2022 | ||
| Allison Dorval | ||||
| /s/ David Grayzel, M.D. | Director | March 30, 2022 | ||
| David Grayzel, M.D. | ||||
| /s/ Mark Iwicki | Director | March 30, 2022 | ||
| Mark Iwicki | ||||
| /s/ Maha Katabi, Ph.D. | Director | March 30, 2022 | ||
| Maha Katabi, Ph.D. | ||||
| /s/ Joshua Resnick, M.D. | Director | March 30, 2022 | ||
| Joshua Resnick, M.D. | ||||
Exhibit 5.1
March 30, 2022
Aerovate Therapeutics, Inc.
930 Winter Street, Suite M-500
Waltham, MA 02451
| Re: | Securities Being Registered under Registration Statement on Form S-8 |
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 976,415 shares (the “Shares”) of Common Stock, $0.0001 par value per share (“Common Stock”), of Aerovate Therapeutics, Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2021 Stock Option and Incentive Plan (the “Plan”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plans, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, | |
| /s/ Goodwin Procter LLP | |
| GOODWIN PROCTER LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our report dated March 30, 2022, with respect to the consolidated financial statements of Aerovate Therapeutics, Inc., incorporated herein by reference.
| /s/ KPMG LLP | |
| San Diego, California | |
| March 30, 2022 |
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Aerovate 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 | Maximum Aggregate Offering Price | Fee Rate | Amount of Registration Fee | |||||||||||||||||
| Equity | Common Stock, par value $0.0001 per share | 457(h) | 976,415 | (2) | $16.00 | (3) | $ | 15,622,640 | $ | 0.0000927 | $ | 1,448.22 | ||||||||||||
| Total Offering Amounts | $ | 15,622,640 | $ | 1,448.22 | ||||||||||||||||||||
| Total Fee Offsets | $ | 0 | ||||||||||||||||||||||
| Net Fee Due | $ | 1,448.22 | ||||||||||||||||||||||
| (1) | Pursuant to Rule 416 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”) which become issuable under the above-named plans by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of our outstanding shares of Common Stock. |
| (2) | Consists of 976,415 additional shares issuable under the 2021 Stock Option and Incentive Plan (the “2021 Plan”), which represents an automatic annual increase to the number of shares available for issuance under the 2021 Plan effective as of January 1, 2022. Shares available for issuance under the 2021 Plan were previously registered on a registration statement on Form S-8 filed with the Securities and Exchange Commission on June 30, 2021 (File No. 333-257579). |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended. The price per share and aggregate offering price are calculated on the basis of $16.00, the average of the high and low price of the registrant’s Common Stock as reported on the Nasdaq Global Market on March 25, 2022. |