As filed with the Securities and Exchange Commission on December 3, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
KINNATE BIOPHARMA INC.
(Exact name of registrant as specified in its charter)
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Delaware
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82-4566526
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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11975 El Camino Real, Suite 101
San Diego, CA 92130
(858) 299-4699
(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)
2020 Equity Incentive Plan
2020 Employee Stock Purchase Plan
2018 Equity Incentive Plan
(Full title of the plan)
Nima Farzan
President and Chief Executive Officer
Kinnate Biopharma Inc.
11975 El Camino Real, Suite 101
San Diego, CA 92130
(858) 299-4699
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
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Tony Jeffries
Miranda Biven
Jennifer Knapp
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304
(650) 493-9300
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Mark Meltz
Chief Operating Officer and General Counsel
Kinnate Biopharma Inc.
11975 El Camino Real, Suite 101
San Diego, CA 92130
(858) 299-4699
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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.
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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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☒
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Smaller reporting company
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☒
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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
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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, $0.0001 par value per share, reserved for issuance pursuant to the 2020 Equity Incentive Plan
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5,806,039
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(2)
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$
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20.00
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(3)
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$
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116,120,780
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$
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12,669
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|||||||
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Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the 2020 Employee Stock Purchase Plan
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435,000
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(4)
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$
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17.00
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(5)
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$
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7,395,000
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$
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807
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|||||||
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Common Stock, $0.0001 par value per share, reserved for issuance pursuant to options outstanding under the 2018 Equity Incentive Plan
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6,080,966
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(6)
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$
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3.63
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(7)
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$
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22,073,907
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$
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2,409
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|||||||
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TOTAL:
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12,322,005
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$
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145,589,687
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$
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15,885
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|||||||||||
| (1) |
Pursuant to Rule 416(a) of 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 that become issuable under the 2020 Equity
Incentive Plan (the “2020 Plan”), the 2020 Employee Stock Purchase Plan (the “2020 ESPP”) and the 2018 Equity Incentive Plan (the “2018 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction
effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock.
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| (2) |
Represents 5,806,039 shares of common stock reserved for issuance under the 2020 Plan as of the date of this Registration Statement, which includes 5,218,000 shares approved for issuance under the 2020 Plan plus 588,039 shares of common
stock that were reserved but not issued pursuant to awards granted under the 2018 Plan that are not subject to any awards granted thereunder. As of the date hereof, 121,503 shares of common stock are subject to options outstanding under the
2020 Plan. The number of shares of common stock available under the 2020 Plan will be increased by any shares of common stock subject to awards outstanding under the 2018 Plan, that on or after the effectiveness of the 2020 Plan, expire or
otherwise terminate without having been exercised in full, are tendered to or withheld by the Registrant for payment of an exercise price or for tax withholding obligations, or are forfeited to or repurchased by the Registrant due to failure
to vest. The maximum number of shares that can be added to the 2020 Plan from the 2018 Plan is 6,669,017. See footnote 6 below.
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| (3) |
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $20.00 per share, which is the initial public offering price set forth on the cover page of the Registrant’s Prospectus
dated December 2, 2020 relating to its initial public offering.
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| (4) |
Represents 435,000 shares of common stock reserved for issuance under the 2020 ESPP.
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| (5) |
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of 85% of $20.00, which is the initial public offering price set forth on the cover page of the Registrant’s Prospectus dated
December 2, 2020 relating to its initial public offering. Pursuant to the 2020 ESPP, the purchase price of the shares of common stock reserved for issuance thereunder will be 85% of the lower of the fair market value of the common stock on
(i) the first trading day of the offering period or (ii) the exercise date.
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| (6) |
Represents 6,080,966 shares of common stock reserved for issuance pursuant to options outstanding under the 2018 Plan as of the date of this Registration Statement. To the extent that, on or after the effectiveness of the 2020 Plan, any
shares subject to awards under the 2018 Plan expire or otherwise terminate without having been exercised or issued in full, are tendered to or withheld by the Registrant for payment of an exercise price or tax withholding obligations, or are
forfeited to or repurchased by the Registrant due to failure vest, the shares of common stock subject to such awards will become available for issuance under the 2020 Plan.
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| (7) |
Estimated in accordance with Rule 457(h) solely for the purpose of calculating the registration fee on the basis of $3.63, the weighted average price per share of outstanding stock option awards under the 2018 Plan as of December 3, 2020.
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PART I
INFORMATION REQUIRED IN THE 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 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.
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
| Item 3. |
Incorporation of Documents by Reference.
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Kinnate Biopharma Inc. (the “Registrant”) hereby incorporates by reference into this Registration Statement the following documents previously filed with the Securities and Exchange Commission (the “Commission”):
(1) The Registrant’s Prospectus dated December 2, 2020, filed with the Commission on December 3, 2020 pursuant to Rule 424(b) under the Securities Act, relating to the Registration Statement on Form S-1, as amended
(File No. 333-250086), which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed; and
(2) The description of the Registrant’s Common Stock contained in the Company’s Registration Statement on Form 8-A (File No 001-39743) filed with the Commission on November 30, 2020, pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description.
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.
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Not applicable.
| Item 5. |
Interests of Named Experts and Counsel.
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Not applicable.
| Item 6. |
Indemnification of Directors and Officers.
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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 certificate of incorporation of the registrant to be in effect upon the completion of this offering 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 bylaws of the registrant to be in effect upon the completion of this offering 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 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, except (1) for any breach of the director’s duty of loyalty to the corporation or its stockholders, (2) for acts or omissions 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 or (4) for any transaction from which the director derived an improper personal benefit. The registrant’s
certificate of incorporation to be in effect upon the completion of this offering 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 executive officers which would require the
registrant, among other things, to indemnify them against certain liabilities which may arise by reason of their status as directors or executive officers.
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.
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Not applicable.
| Item 8. |
Exhibits.
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Incorporated by Reference
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Exhibit
Number
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Description
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Form
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File No.
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Exhibit
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Filing Date
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Specimen common stock certificate of the Registrant
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S-1/A
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333-250086
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4.2
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11/30/2020
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2018 Equity Incentive Plan, as amended, and form agreement thereunder
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S-1
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333-250086
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10.2
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11/13/2020
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2020 Equity Incentive Plan, and form agreements thereunder
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S-1/A
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333-250086
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10.3
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11/30/2020
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2020 Employee Stock Purchase Plan and form agreements thereunder
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S-1/A
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333-250086
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10.4
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11/30/2020
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5.1*
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Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
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23.1*
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Consent of Independent Registered Public Accounting Firm
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23.2*
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Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (contained in Exhibit 5.1 hereto)
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24.1*
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Power of Attorney (contained on signature page hereto)
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*Filed herewith.
| Item 9. |
Undertakings.
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| A. |
The undersigned Registrant hereby undertakes that:
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| (1) |
It will 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) |
To include any prospectus required by Section 10(a)(3) of the Securities Act;
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| (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 Registration Fee” table in the effective registration statement; and
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| (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.
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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 periodic 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 this Registration Statement.
| (2) |
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.
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| (3) |
It will 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.
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| 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 Section 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.
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| 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 provisions referenced in Item 6 of this Registration Statement,
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. 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 hereunder, 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 of 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.
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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 San Diego, California, on the 3rd day of December, 2020.
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KINNATE BIOPHARMA INC.
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By:
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/s/ Nima Farzan
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Nima Farzan
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Nima Farzan and Mark Meltz, and each of them, as such individual’s true and lawful attorney in fact and agent with full power of
substitution, for such individual in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection
therewith, as fully for all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney in fact, proxy and agent, or the individual’s substitute, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Nima Farzan
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President, Chief Executive Officer and Director (Principal Executive Officer)
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December 3, 2020
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Nima Farzan
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/s/ Mark Meltz
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Chief Operating Officer and General Counsel (Principal Financial and Accounting Officer)
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December 3, 2020
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Mark Meltz
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/s/ Dean Mitchell
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Chair of the Board
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December 3, 2020
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Dean Mitchell
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/s/ Melisa Epperly
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Director
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December 3, 2020
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Melissa Epperly
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/s/ Keith Flaherty, M.D.
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Director
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December 3, 2020
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Keith Flaherty, M.D.
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/s/ Carl Gordon, Ph.D.
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Director
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December 3, 2020
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Carl Gordon, Ph.D.
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/s/ Stephen Kaldor, Ph.D.
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Director
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December 3, 2020
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Stephen Kaldor, Ph.D.
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/s/ Michael Rome, Ph.D.
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Director
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December 3, 2020
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Michael Rome, Ph.D.
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/s/ Laurie Smaldone Alsup, M.D.
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Director
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December 3, 2020
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Laurie Smaldone Alsup, M.D.
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/s/ Jim Tananbaum, M.D.
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Director
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December 3, 2020
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Jim Tananbaum M.D.
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Exhibit 5.1
 |
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
o: 650.493.9300
f: 650.493.6811
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December 3, 2020
Kinnate Biopharma Inc.
11975 El Camino Real, Suite 101
San Diego, CA 92130
Re: Registration
Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by Kinnate Biopharma Inc., a Delaware corporation, with
the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended, of (i) 5,806,039 shares of Common Stock reserved for issuance pursuant to the 2020 Equity Incentive
Plan, (ii) 435,000 shares of Common Stock reserved for issuance pursuant to the 2020 Employee Stock Purchase Plan, and (iii) 6,080,966 shares of Common Stock that are subject to currently outstanding options under the 2018 Equity Incentive Plan
(which plans are referred to herein as the “Plans” and which shares of Common Stock are referred to herein as the “Shares”).
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 referred to in the Plans
and pursuant to the agreements that accompany the Plans, will be legally and validly issued, fully paid, and nonassessable.
We consent to the use of this opinion as an exhibit to the Registration Statement, and further consent to the use of our name wherever appearing in the
Registration Statement and any amendments thereto.
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Very truly yours,
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/s/ Wilson Sonsini Goodrich & Rosati
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WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
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AUSTIN BEIJING BOSTON BRUSSELS HONG KONG LONDON LOS ANGELES NEW YORK PALO ALTO
SAN DIEGO SAN FRANCISCO SEATTLE SHANGHAI WASHINGTON, DC WILMINGTON, DE
Exhibit 23.1
The Board of Directors
Kinnate Biopharma Inc.:
We consent to the use of our report dated September 4, 2020, except for the reverse stock split described in Note 11, which is as of November 25, 2020, with
respect to the balance sheets of Kinnate Biopharma Inc. as of December 31, 2018 and 2019, the related statements of operations and comprehensive loss, convertible preferred stock and stockholders’ equity (deficit), and cash flows for the period from
January 4, 2018 (inception) to December 31, 2018 and for the year ended December 31, 2019, and the related notes, incorporated herein by reference.
/s/ KPMG LLP
San Diego, California
December 3, 2020