Delaware | | | 82-4566526 |
(State or other jurisdiction of incorporation or organization) | | | (I.R.S. Employer Identification Number) |
Tony Jeffries Jennifer Knapp Lance Brady Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, CA 94304 (650) 493-9300 | | | Mark Meltz Chief Operating Officer and General Counsel Kinnate Biopharma Inc. 103 Montgomery Street, Suite 150 The Presidio of San Francisco San Francisco, CA 94129 (858) 299-4699 |
Large accelerated filer | | | ☐ | | | | | Accelerated filer | | | ☐ | |
Non-accelerated filer | | | ☒ | | | | | Smaller reporting company | | | ☒ | |
| | | | | | Emerging growth company | | | ☒ |
• | a base prospectus, which covers the offering, sale and issuance by us of up to $350.0 million in the aggregate of the securities identified above from time to time in one or more offerings; and |
• | a sales agreement prospectus supplement covering the offering, issuance and sale by us of up to a maximum aggregate offering price of $150.0 million of our common stock that may be issued and sold from time to time under a sales agreement with SVB Securities LLC (SVB Securities). |
• | the ability of our ongoing and planned future preclinical studies and clinical trials to demonstrate safety and efficacy of our product candidates, and other positive results; |
• | the timing, progress and results of ongoing and planned future preclinical studies and clinical trials for our current product candidates and other product candidates we may develop, including statements regarding the timing of initiation and completion of preclinical studies or clinical trials and related preparatory work, the period during which the results of the studies or trials will become available, and our research and development programs; |
• | the timing, scope and likelihood of regulatory filings and approvals, including timing of INDs and final FDA approval of our current product candidates and any other future product candidates; |
• | the timing, scope or likelihood of foreign regulatory filings and approvals; |
• | our ability to develop and advance our current product candidates and programs into, and successfully complete, clinical trials; |
• | our manufacturing, commercialization, and marketing capabilities and strategy; |
• | our plans relating to commercializing our product candidates, if approved, including the geographic areas of focus and sales strategy; |
• | the need to hire additional personnel and our ability to attract and retain such personnel; |
• | the size of the market opportunity for our product candidates, including our estimates of the number of patients who suffer from the diseases we are targeting; |
• | our expectations regarding the approval and use of our product candidates in combination with other drugs; |
• | our competitive position and the success of competing therapies that are or may become available; |
• | our estimates of the number of patients that we will enroll in our clinical trials; |
• | the beneficial characteristics, and the potential safety, efficacy and therapeutic effects of our product candidates; |
• | our ability to obtain and maintain regulatory approval of our product candidates; |
• | our plans relating to the further development of our product candidates, including additional indications we may pursue; |
• | existing regulations and regulatory developments in the United States, Europe and other jurisdictions; |
• | our expectations regarding the impact of the COVID-19 pandemic on our business; |
• | our intellectual property position, including the scope of protection we are able to establish and maintain for intellectual property rights covering our current product candidates and other product candidates we may develop, including the extensions of existing patent terms where available, the validity of intellectual property rights held by third parties, and our ability not to infringe, misappropriate or otherwise violate any third-party intellectual property rights; |
• | our continued reliance on third parties to conduct ongoing and planned future preclinical studies and clinical trials of our product candidates, and for the manufacture of our product candidates for preclinical studies and clinical trials; |
• | our ability to obtain, and negotiate favorable terms of, any collaboration, licensing or other arrangements that may be necessary or desirable to develop, manufacture or commercialize our product candidates; |
• | the pricing and reimbursement of our current product candidates and other product candidates we may develop, if approved; |
• | the rate and degree of market acceptance and clinical utility of our current product candidates and other product candidates we may develop; |
• | our estimates regarding expenses, future revenue, capital requirements and needs for additional financing; |
• | our financial performance; |
• | the period over which we estimate our existing cash and cash equivalents will be sufficient to fund our future operating expenses and capital expenditure requirements; |
• | the impact of laws and regulations; |
• | our expectations regarding the period during which we will remain an emerging growth company under the JOBS Act; and |
• | our anticipated use of our existing resources and the net proceeds from this offering. |
• | depositary shares; |
• | debt securities, which may be senior or subordinated, and which may be convertible into our common stock or be non-convertible; |
• | warrants to purchase from us shares of our common stock or preferred stock or debt securities; |
• | purchase contracts; |
• | subscription rights; and |
• | units representing two or more of the foregoing securities. |
• | all outstanding depositary shares have been redeemed; or |
• | there has been a final distribution of the preferred stock in connection with our dissolution and such distribution has been made to all the holders of depositary shares. |
• | the initial deposit of the preferred stock; |
• | the initial issuance of the depositary shares; |
• | any redemption of the preferred stock; and |
• | all withdrawals of preferred stock by owners of depositary shares. |
• | refuse to transfer depositary shares; |
• | withhold dividends and distributions; and |
• | sell the depositary shares evidenced by the depositary receipt. |
• | written advice of counsel or accountants; |
• | information provided by holders of depositary receipts or other persons believed in good faith to be competent to give such information; and |
• | documents believed to be genuine and to have been signed or presented by the proper party or parties. |
• | the title and ranking of the debt securities (including the terms of any subordination provisions); |
• | the price or prices (expressed as a percentage of the principal amount) at which we will sell the debt securities; |
• | any limit upon the aggregate principal amount of the debt securities; |
• | the date or dates on which the principal of the securities of the series is payable; |
• | the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date; |
• | the place or places where principal of, and interest, if any, on the debt securities will be payable (and the method of such payment), where the securities of such series may be surrendered for registration of transfer or exchange, and where notices and demands to us in respect of the debt securities may be delivered; |
• | the period or periods within which, the price or prices at which and the terms and conditions upon which we may redeem the debt securities; |
• | any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities and the period or periods within which, the price or prices at which and the terms and conditions upon which securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
• | the dates on which and the price or prices at which we will repurchase debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
• | the denominations in which the debt securities will be issued, if other than denominations of $1,000 and any integral multiple thereof; |
• | whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
• | the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
• | the currency of denomination of the debt securities, which may be United States dollars or any foreign currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency; |
• | the designation of the currency, currencies or currency units in which payment of principal of, premium and interest on the debt securities will be made; |
• | if payments of principal of, premium or interest on the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in which the exchange rate with respect to these payments will be determined; |
• | the manner in which the amounts of payment of principal of, premium, if any, or interest on the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index; |
• | any provisions relating to any security provided for the debt securities; |
• | any addition to, deletion of or change in the Events of Default described in this prospectus, any applicable prospectus supplement or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus, any applicable prospectus supplement or in the indenture with respect to the debt securities; |
• | any addition to, deletion of or change in the covenants described in this prospectus, any applicable prospectus supplement or in the indenture with respect to the debt securities; |
• | any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities; |
• | any other terms of the debt securities, which may supplement, modify or delete any provision of the indenture as it applies to that series, including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of the securities; and |
• | whether any of our direct or indirect subsidiaries will guarantee the debt securities of that series, including the terms of subordination, if any, of such guarantees. |
• | we are the surviving corporation or the successor person (if other than us) is a corporation organized and validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our obligations on the debt securities and under the indenture; and |
• | immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing. |
• | default in the payment of any interest upon any debt security of that series when it becomes due and payable, and continuance of such default for a period of 30 days (unless the entire amount of the payment is deposited by us with the trustee or with a paying agent prior to the expiration of the 30-day period); |
• | default in the payment of principal of any security of that series at its maturity; |
• | default in the performance or breach of any other covenant or warranty by us in the indenture (other than a covenant or warranty that has been included in the indenture solely for the benefit of a series of |
• | certain voluntary or involuntary events of bankruptcy, insolvency or reorganization of us; and |
• | any other Event of Default provided with respect to debt securities of that series that is described in the applicable prospectus supplement. |
• | that holder has previously given to the trustee written notice of a continuing Event of Default with respect to debt securities of that series; and |
• | the holders of not less than 25% in principal amount of the outstanding debt securities of that series have made written request, and offered indemnity or security satisfactory to the trustee, to the trustee to institute the proceeding as trustee, and the trustee has not received from the holders of not less than a majority in principal amount of the outstanding debt securities of that series a direction inconsistent with that request and has failed to institute the proceeding within 60 days. |
• | to cure any ambiguity, defect or inconsistency; |
• | to comply with covenants in the indenture described above under the heading “Consolidation, Merger and Sale of Assets”; |
• | to provide for uncertificated securities in addition to or in place of certificated securities; |
• | to add guarantees with respect to debt securities of any series or secure debt securities of any series; |
• | to surrender any of our rights or powers under the indenture; |
• | to add covenants or events of default for the benefit of the holders of debt securities of any series; |
• | to comply with the applicable procedures of the applicable depositary; |
• | to make any change that does not adversely affect the rights of any holder of debt securities; |
• | to provide for the issuance of and establish the form and terms and conditions of debt securities of any series as permitted by the indenture; |
• | to effect the appointment of a successor trustee with respect to the debt securities of any series and to add to or change any of the provisions of the indenture to provide for or facilitate administration by more than one trustee; or |
• | to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. |
• | reduce the amount of debt securities whose holders must consent to an amendment, supplement or waiver; |
• | reduce the rate of or extend the time for payment of interest (including default interest) on any debt security; |
• | reduce the principal of or premium on or change the fixed maturity of any debt security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation with respect to any series of debt securities; |
• | reduce the principal amount of discount securities payable upon acceleration of maturity; |
• | waive a default in the payment of the principal of, premium or interest on any debt security (except a rescission of acceleration of the debt securities of any series by the holders of at least a majority in aggregate principal amount of the then outstanding debt securities of that series and a waiver of the payment default that resulted from such acceleration); |
• | make the principal of or premium or interest on any debt security payable in currency other than that stated in the debt security; |
• | make any change to certain provisions of the indenture relating to, among other things, the right of holders of debt securities to receive payment of the principal of, premium and interest on those debt securities and to institute suit for the enforcement of any such payment and to waivers or amendments; or |
• | waive a redemption payment with respect to any debt security. |
• | we may omit to comply with the covenant described under the heading “Consolidation, Merger and Sale of Assets” and certain other covenants set forth in the indenture, as well as any additional covenants which may be set forth in the applicable prospectus supplement; and |
• | any omission to comply with those covenants will not constitute a Default or an Event of Default with respect to the debt securities of that series. |
• | depositing with the trustee money and/or U.S. government obligations or, in the case of debt securities denominated in a single currency other than U.S. dollars, government obligations of the government that issued or caused to be issued such currency, that, through the payment of interest and principal in accordance with their terms, will provide money in an amount sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each installment of principal of, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities; |
• | such deposit will not result in a breach or violation of, or constitute a default under the indenture or any other agreement to which we are a party; |
• | no Default or Event of Default with respect to the applicable series of debt securities shall have occurred or is continuing on the date of such deposit; and |
• | delivering to the trustee an opinion of counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to United States federal income tax on the same amounts and in the same manner and at the same times as would have been the case if the deposit and related covenant defeasance had not occurred. |
• | the specific designation and aggregate number of, and the offering price at which we will issue, the warrants; |
• | the currency or currency units in which the offering price, if any, and the exercise price are payable; |
• | the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants; |
• | whether the warrants are to be sold separately or with other securities as parts of units; |
• | whether the warrants will be issued in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit; |
• | any applicable material U.S. federal income tax consequences; |
• | the identity of the warrant agent for the warrants and of any other depositaries, execution or paying agents, transfer agents, registrars or other agents; |
• | the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange; |
• | the designation and terms of any equity securities purchasable upon exercise of the warrants; |
• | the designation, aggregate principal amount, currency and terms of any debt securities that may be purchased upon exercise of the warrants; |
• | if applicable, the designation and terms of the debt securities, preferred stock, depositary shares or common stock with which the warrants are issued and the number of warrants issued with each security; |
• | if applicable, the date from and after which any warrants issued as part of a unit and the related debt securities, preferred stock, depositary shares or common stock will be separately transferable; |
• | the number of shares of preferred stock, the number of depositary shares or the number of shares of common stock purchasable upon exercise of a warrant and the price at which those shares may be purchased; |
• | if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time; |
• | information with respect to book-entry procedures, if any; |
• | the antidilution provisions, and other provisions for changes to or adjustment in the exercise price, of the warrants, if any; |
• | any redemption or call provisions; and |
• | any additional terms of the warrants, including terms, procedures and limitations relating to the exchange or exercise of the warrants. |
• | the price, if any, for the subscription rights; |
• | the exercise price payable for our common stock, preferred stock or debt securities upon the exercise of the subscription rights; |
• | the number of subscription rights to be issued to each stockholder; |
• | the number and terms of our common stock, preferred stock or debt securities which may be purchased per each subscription right; |
• | the extent to which the subscription rights are transferable; |
• | if applicable, the material terms of any standby underwriting or purchase arrangement which may be entered into by us in connection with the offering of subscription rights; |
• | the date on which the right to exercise the subscription rights shall commence, and the date on which the subscription rights shall expire; |
• | the extent to which the subscription rights may include an over-subscription privilege with respect to unsubscribed securities or an over-allotment privilege to the extent the securities are fully subscribed; and |
• | any other terms of the subscription rights, including the terms, procedures and limitations relating to the exchange and exercise of the subscription rights. |
• | the price of the securities or other property subject to the purchase contracts (which may be determined by reference to a specific formula described in the purchase contracts); |
• | whether the purchase contracts are issued separately, or as a part of units each consisting of a purchase contract and one or more of our other securities, including U.S. Treasury securities, securing the holder’s obligations under the purchase contract; |
• | any requirement for us to make periodic payments to holders or vice versa, and whether the payments are unsecured or pre-funded; |
• | any provisions relating to any security provided for the purchase contracts; |
• | whether the purchase contracts obligate the holder or us to purchase or sell, or both purchase and sell, the securities subject to purchase under the purchase contract, and the nature and amount of each of those securities, or the method of determining those amounts; |
• | whether the purchase contracts are to be prepaid or not; |
• | whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of the securities subject to purchase under the purchase contract; |
• | any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts; |
• | a discussion of certain U.S. federal income tax considerations applicable to the purchase contracts; |
• | whether the purchase contracts will be issued in fully registered or global form; and |
• | any other terms of the purchase contracts and any securities subject to such purchase contracts. |
• | the designation and terms of the units and the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately; |
• | any provision for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and |
• | whether the units will be issued in fully registered or global form. |
• | at a fixed price or prices that may be changed from time to time; |
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices; or |
• | at negotiated prices. |
• | the name of the agent or any underwriters; |
• | the public offering or purchase price; |
• | any discounts and commissions to be allowed or paid to the agent or underwriters; |
• | all other items constituting underwriting compensation; |
• | any discounts and commissions to be allowed or paid to dealers; and |
• | any exchanges on which the securities will be listed. |
• | the purchase by an institution of the securities covered under that contract shall not at the time of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and |
• | if the securities are also being sold to underwriters acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery. |
• | our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 29, 2021; |
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, filed with the SEC on May 17, 2021, June 30, 2021, filed with the SEC on August 16, 2021, and September 30, 2021, filed with the SEC on November 10, 2021; |
• | the portions of our Definitive Proxy Statement on Schedule 14A (other than information furnished rather than filed) that are incorporated by reference into our Annual Report on Form 10-K, filed with the SEC on April 30, 2021; |
• | our Current Reports on Form 8-K filed on May 13, 2021, June 7, 2021, June 15, 2021, June 28, 2021, October 28, 2021, January 3, 2022, January 6, 2022, and January 18, 2022; and |
• | the description of our common stock contained in the Registration Statement on Form 8-A (File No. 001-39743) relating thereto, filed on November 30, 2020, including any amendment or report filed for the purpose of updating such description. |
• | 7,477,568 shares of our common stock issuable upon the exercise of options outstanding as of December 31, 2021, with a weighted-average exercise price of $11.11 per share; |
• | 1,908,514 shares of common stock issuable upon the exercise of options that we granted after December 31, 2021, with a weighted-average exercise price of $10.18 per share; |
• | 4,079,339 shares of common stock reserved for future issuance under our 2020 Equity Incentive Plan as of December 31, 2021, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan; and |
• | 384,733 shares of common stock reserved for future issuance under our 2020 Employee Stock Purchase Plan as of December 31, 2021, as well as any automatic increases in the number of our common stock reserved for future issuances under this plan. |
• | the ability of our ongoing and planned future preclinical studies and clinical trials to demonstrate safety and efficacy of our product candidates, and other positive results; |
• | the timing, progress and results of ongoing and planned future preclinical studies and clinical trials for our current product candidates and other product candidates we may develop, including statements regarding the timing of initiation and completion of preclinical studies or clinical trials and related preparatory work, the period during which the results of the studies or trials will become available, and our research and development programs; |
• | the timing, scope and likelihood of regulatory filings and approvals, including timing of INDs and final FDA approval of our current product candidates and any other future product candidates; |
• | the timing, scope or likelihood of foreign regulatory filings and approvals; |
• | our ability to develop and advance our current product candidates and programs into, and successfully complete, clinical trials; |
• | our manufacturing, commercialization, and marketing capabilities and strategy; |
• | our plans relating to commercializing our product candidates, if approved, including the geographic areas of focus and sales strategy; |
• | the need to hire additional personnel and our ability to attract and retain such personnel; |
• | the size of the market opportunity for our product candidates, including our estimates of the number of patients who suffer from the diseases we are targeting; |
• | our expectations regarding the approval and use of our product candidates in combination with other drugs; |
• | our competitive position and the success of competing therapies that are or may become available; |
• | our estimates of the number of patients that we will enroll in our clinical trials; |
• | the beneficial characteristics, and the potential safety, efficacy and therapeutic effects of our product candidates; |
• | our ability to obtain and maintain regulatory approval of our product candidates; |
• | our plans relating to the further development of our product candidates, including additional indications we may pursue; |
• | existing regulations and regulatory developments in the United States, Europe and other jurisdictions; |
• | our expectations regarding the impact of the COVID-19 pandemic on our business; |
• | our intellectual property position, including the scope of protection we are able to establish and maintain for intellectual property rights covering our current product candidates and other product |
• | our continued reliance on third parties to conduct ongoing and planned future preclinical studies and clinical trials of our product candidates, and for the manufacture of our product candidates for preclinical studies and clinical trials; |
• | our ability to obtain, and negotiate favorable terms of, any collaboration, licensing or other arrangements that may be necessary or desirable to develop, manufacture or commercialize our product candidates; |
• | the pricing and reimbursement of our current product candidates and other product candidates we may develop, if approved; |
• | the rate and degree of market acceptance and clinical utility of our current product candidates and other product candidates we may develop; |
• | our estimates regarding expenses, future revenue, capital requirements and needs for additional financing; |
• | our financial performance; |
• | the period over which we estimate our existing cash and cash equivalents will be sufficient to fund our future operating expenses and capital expenditure requirements; |
• | the impact of laws and regulations; |
• | our expectations regarding the period during which we will remain an emerging growth company under the JOBS Act; and |
• | our anticipated use of our existing resources and the net proceeds from this offering. |
Assumed offering price per share | | | | | $10.54 | |
Net tangible book value per share as of December 31, 2021 | | | $7.28 | | | |
Increase in net tangible book value per share attributable to new investors | | | $0.72 | | | |
As adjusted net tangible book value per share after this offering | | | | | $8.01 | |
Dilution per share to investors in this offering | | | | | $2.53 |
• | 7,477,568 shares of our common stock issuable upon the exercise of options outstanding as of December 31, 2021, with a weighted-average exercise price of $11.11 per share; |
• | 1,908,514 shares of common stock issuable upon the exercise of options that we granted after December 31, 2021, with a weighted-average exercise price of $10.18 per share; |
• | 4,079,339 shares of common stock reserved for future issuance under our 2020 Equity Incentive Plan as of December 31, 2021, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan; and |
• | 384,733 shares of common stock reserved for future issuance under our 2020 Employee Stock Purchase Plan as of December 31, 2021, as well as any automatic increases in the number of our common stock reserved for future issuances under this plan. |
• | our Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC on March 29, 2021; |
• | our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2021, filed with the SEC on May 17, 2021, June 30, 2021, filed with the SEC on August 16, 2021, and September 30, 2021, filed with the SEC on November 10, 2021; |
• | the portions of our Definitive Proxy Statement on Schedule 14A (other than information furnished rather than filed) that are incorporated by reference into our Annual Report on Form 10-K, filed with the SEC on April 30, 2021; |
• | our Current Reports on Form 8-K filed on May 13, 2021, June 7, 2021, June 15, 2021, June 28, 2021, October 28, 2021, January 3, 2022, January 6, 2022, and January 18, 2022; and |
• | the description of our common stock contained in the Registration Statement on Form 8-A (File No. 001-39743) relating thereto, filed on November 30, 2020, including any amendment or report filed for the purpose of updating such description. |
Item 14. | Other Expenses of Issuance and Distribution |
| | Amount to be Paid | |
SEC registration fee | | | $32,445(1) |
FINRA filing fee | | | $225,500 |
Printing expenses | | | (2) |
Accounting fees and expenses | | | (2) |
Legal fees and expenses | | | (2) |
Blue Sky, qualification fees and expenses | | | (2) |
Transfer agent and registrar fees and expenses | | | (2) |
Trustee’s fees and expenses | | | (2) |
Warrant agent fees and expenses | | | (2) |
Miscellaneous expenses | | | (2) |
Total | | | (2) |
(1) | This amount includes $13,905 of fees related to the offering, issuance and sale of up to $150,000,000 of the registrant’s common stock pursuant to this registration statement and a sales agreement, dated as of January 3, 2022, by and between the registrant and SVB Securities LLC. The $350,000,000 of shares of common stock registered pursuant to this registration statement includes $150,000,000 of shares of common stock (the “Unsold Shares”) registered pursuant to Registration Statement No. 333-261970 which became effective on January 3, 2022. Pursuant to Rule 415(a)(6) under the Securities Act of 1933, as amended, the filing fees previously paid in connection with the Unsold Shares will continue to be applied to the Unsold Shares. |
(2) | The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. An estimate of the aggregate expenses in connection with the sale and distribution of securities being offered will be included in the applicable prospectus supplement. |
Item 15. | Indemnification of Directors and Officers |
Item 16. | Exhibits |
Exhibit Number | | | Exhibit Description | | | Incorporation by Reference | | | ||||||||||
| Form | | | File No. | | | Exhibit Number | | | Filing Date | | | Filed Herewith | |||||
1.1* | | | Form of Underwriting Agreement | | | | | | | | | | | |||||
| | Sales Agreement, dated as of January 3, 2022, between the Registrant and SVB Securities LLC | | | S-3ASR | | | 333-261970 | | | 1.3 | | | January 3, 2022 | | | ||
| | Amended and Restated Certificate of Incorporation of the Registrant | | | 8-K | | | 001-39743 | | | 3.1 | | | December 8, 2020 | | | ||
| | Amended and Restated Bylaws of the Registrant | | | 8-K | | | 001-39743 | | | 3.2 | | | December 8, 2020 | | | ||
| | Amended and Restated Investors’ Rights Agreement, dated August 24, 2020, by and among the Registrant and certain of its stockholders | | | S-1 | | | 333-250086 | | | 4.1 | | | November 13, 2020 | | | ||
| | Specimen Common Stock Certificate | | | S-1/A | | | 333-250086 | | | 4.2 | | | November 30, 2020 | | | ||
4.5* | | | Form of Specimen Preferred Stock Certificate | | | | | | | | | | | |||||
| | Form of Indenture | | | S-3ASR | | | 333-261970 | | | 4.6 | | | January 3, 2022 | | | ||
4.7* | | | Form of Debt Security | | | | | | | | | | | |||||
4.8* | | | Form of Deposit Agreement | | | | | | | | | | | |||||
4.9* | | | Form of Depositary Receipt | | | | | | | | | | | |||||
4.10* | | | Form of Warrant Agreement | | | | | | | | | | | |||||
4.11* | | | Form of Warrant | | | | | | | | | | |
Exhibit Number | | | Exhibit Description | | | Incorporation by Reference | | | ||||||||||
| Form | | | File No. | | | Exhibit Number | | | Filing Date | | | Filed Herewith | |||||
4.12* | | | Form of Subscription Agreement | | | | | | | | | | | |||||
4.13* | | | Form of Purchase Contract Agreement | | | | | | | | | | | |||||
4.14* | | | Form of Unit Agreement | | | | | | | | | | | |||||
4.15* | | | Form of Unit | | | | | | | | | | | |||||
| | Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation | | | | | | | | | | | X | |||||
| | Consent of Independent Registered Public Accounting Firm | | | | | | | | | | | X | |||||
| | Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in the opinion filed as Exhibit 5.1 to this Registration Statement) | | | | | | | | | | | X | |||||
| | Power of Attorney (included on the signature page to this Registration Statement) | | | | | | | | | | | ||||||
25.1*** | | | Form T-1 Statement of Eligibility of Trustee for Indenture under the Trust Indenture Act of 1939 | | | | | | | | | | | |||||
| | Filing Fee Table | | | | | | | | | | | X |
* | To be filed, if applicable, by amendment or incorporated by reference pursuant to a Current Report on Form 8-K. |
** | Previously filed. |
*** | To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended. |
Item 17. | Undertakings |
(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 of 1933; |
(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 SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% 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), (a)(1)(ii) and (a)(1)(iii) of this section 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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement. |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, 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. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser: |
(i) | If the registrant is relying on Rule 430B, |
(A) | Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
(B) | Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date; or |
(ii) | If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
(b) | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 of 1933 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 of 1933 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 of 1933 and will be governed by the final adjudication of such issue. |
(d) | The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act. |
| | KINNATE BIOPHARMA INC. | ||||
| | | | |||
| | By: | | | /s/ Nima Farzan | |
| | | | Nima Farzan | ||
| | | | President and Chief Executive Officer |
Signature | | | Title | | | Date | | ||
| | | | | |||||
/s/Nima Farzan | | | President and Chief Executive Officer and Director (Principal Executive Officer) | | | March 28, 2022 | | ||
Nima Farzan | | ||||||||
| | | | | |||||
/s/Neha Krishnamohan | | | Chief Financial Officer and Executive Vice President, Corporate Development (Principal Financial and Accounting Officer) | | | March 28, 2022 | | ||
Neha Krishnamohan | | ||||||||
| | | | | |||||
* | | | Chair of the Board | | | March 28, 2022 | | ||
Dean Mitchell | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | | ||
Melissa Epperly | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | | ||
Keith Flaherty, M.D. | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | | ||
Carl Gordon, Ph.D. | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | | ||
Michael Rome, Ph.D. | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | |||
Helen Sabzevari, Ph.D. | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | |||
Laurie Smaldone Alsup, M.D. | | ||||||||
| | | | | |||||
* | | | Director | | | March 28, 2022 | |||
Jim Tananbaum, M.D. | | | | | |
By: | | | /s/ Nima Farzan | | | |
| | Nima Farzan | | | ||
| | Attorney-in-Fact | | |
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
O: 650.493.9300
F: 650.493.6811
|
|
Very truly yours, |
|
|
|
/s/ Wilson Sonsini Goodrich & Rosati |
WILSON SONSINI GOODRICH & ROSATI | |
Professional Corporation |
Security
Type |
Security Class Title
|
Fee
Calculation or Carry Forward Rule
|
Amount
Registered |
Proposed
Maximum Offering Price Per Unit
|
Maximum
Aggregate Offering Price |
Fee Rate
|
Amount of
Registration Fee |
Carry
Forward Form Type |
Carry
Forward File Number |
Carry
Forward Initial effective date |
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward
|
|
Newly Registered Securities
|
||||||||||||
Fees to Be
Paid |
Equity
|
Common Stock, par value $0.0001 per share
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
||||
Equity
|
Preferred Stock, par value $0.0001 per share
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|||||
Equity
|
Depositary Shares
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|||||
Debt
|
Debt Securities
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|||||
Other
|
Warrants
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|||||
Other
|
Purchase Contracts
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|||||
Other
|
Units
|
Rule 457(r)
|
(1)
|
(2)
|
(2)
|
—
|
—
|
|||||
Unallocated
(Universal)
Shelf
|
(1)
|
Rule 457(o)
|
—
|
—
|
$200,000,000
|
0.0000927
|
$18,540
|
|||||
Fees
Previously
Paid |
Equity
|
Common Stock, par value $0.0001 per share
|
Rule 457(o)
|
—
|
—
|
$150,000,000
|
$13,905
|
|||||
Carry Forward Securities
|
||||||||||||
Carry
Forward Securities |
Equity
|
Common Stock, par value $0.0001 per share
|
415(a)(6)
|
—
|
$150,000,000 (3)
|
S-3ASR
|
333-261970
|
January 3, 2022
|
$13,905
|
|||
Total Offering Amount/Registration Fee
|
$350,000,000
|
$32,445
|
||||||||||
Total Fees Previously Paid
|
$13,905
|
|||||||||||
Total Fee Offsets
|
—
|
|||||||||||
Net Fee Due
|
$18,540
|
(1)
|
There are being registered hereunder such indeterminate number of shares of common stock, preferred stock or depositary shares, such
indeterminate principal amount of debt securities, such indeterminate number of warrants, purchase contracts and rights to purchase common stock, preferred stock or debt securities, and such indeterminate number of units, as shall have an
aggregate initial offering price not to exceed $350,000,000. If any debt securities are issued at an original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in an
aggregate initial offering price not to exceed $350,000,000, less the aggregate dollar amount of all securities previously issued hereunder. Any securities registered hereunder may be sold separately or as units with other securities
registered hereunder. The proposed maximum initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant of the securities registered hereunder. The securities
registered also include such indeterminate number of shares of common stock or preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that provide for conversion or
exchange, upon exercise of warrants or rights or pursuant to the anti-dilution provisions of any such securities. In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), the shares being
registered hereunder include such indeterminate number of shares of common stock or preferred stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions.
|
(2)
|
The proposed maximum aggregate offering price per class of security will be determined from time to time by the registrant in
connection with the issuance by the registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
|
(3)
|
Pursuant to 415(a)(6) under the Securities Act, the securities registered pursuant to this registration statement include unsold
securities previously registered by the registrant on the registrant’s automatic shelf registration statement on Form S-3ASR (File No. 333-261970), originally filed on January 3, 2022 (the “Prior Registration Statement”). The Prior
Registration Statement registered the offer and sale of up to $150,000,000 in shares of the registrant’s common stock that may be issued and sold under a certain Sales Agreement with SVB Securities LLC. The registrant previously paid a fee of
$13,905 related to such $150,000,000 in shares of common stock, all of which remain unsold (the “Unsold Shelf Securities”). The registrant has determined to include in this registration statement the Unsold Shelf Securities. Pursuant to Rule
457(b) under the Securities Act, the filing fee of $13,905 relating to the Unsold Shelf Securities under the Prior Registration Statement, which was paid under the Prior Registration Statement, will continue to be applied to the registrant’s
total registration fee. Accordingly, the registrant is paying the registration fee due less the $13,905 that was previously paid, or $18,540.
|