As filed with the Securities and Exchange Commission on March 14, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Design Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
|
|
|
Delaware |
|
82-3929248 |
(State or other jurisdiction of incorporation or organization) |
|
(I.R.S. Employer Identification No.) |
|
|
|
6005 Hidden Valley Road, Suite 110 Carlsbad, California |
|
92011 |
(Address of Principal Executive Offices) |
|
(Zip Code) |
2021 Equity Incentive Plan
2021 Employee Stock Purchase Plan
(Full titles of the plans)
João Siffert, M.D.
President and Chief Executive Officer
Design Therapeutics, Inc.
6005 Hidden Valley Road, Suite 110
Carlsbad, California 92011
(858) 293-4900
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Kenneth J. Rollins, Esq.
Asa M. Henin, Esq.
Cooley LLP
10265 Science Center Drive
San Diego, California 92121
(858) 550-6000
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.
REGISTRATION OF ADDITIONAL SHARES PURSUANT TO GENERAL INSTRUCTION E
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which Registration Statements of the Registrant on Form S-8 relating to the same employee benefit plans are effective.
The Registrant previously registered shares of Common Stock for issuance under its 2021 Equity Incentive Plan and its 2021 Employee Stock Purchase Plan under Registration Statements on Form S-8, filed with the Securities and Exchange Commission on March 26, 2021 (File No. 333-254794) and March 10, 2022 (File No. 333-263427). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.
PART II
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the registrant with the Securities and Exchange Commission (SEC) are incorporated by reference into this registration statement:
All reports and other documents filed by the registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, other than Current Reports furnished under Item 2.02 or Item 7.01 of exhibits furnished on such form that relate to such items and other portions of documents that are furnished but not filed or are otherwise not incorporated into registration statements pursuant to the applicable rules promulgated by the SEC, after the date of this registration statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part of this registration statement from the date of filing such reports and documents. Any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes that statement. Any such statement so modified or superseded shall not constitute a part of this registration statement, except as so modified or superseded.
ITEM 8. |
EXHIBITS. |
|
|
|
Exhibit |
|
Description |
|
|
|
4.1 |
|
|
|
|
|
4.2 |
|
|
|
|
|
4.3 |
|
|
|
|
|
5.1 |
|
|
|
|
|
23.1 |
|
|
|
|
|
23.2 |
|
|
|
|
|
24.1 |
|
Power of Attorney. Reference is made to the signature page hereto. |
|
|
|
99.1 |
|
|
|
|
|
99.2 |
|
|
|
|
|
107 |
|
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Carlsbad, State of California, on March 14, 2023.
|
|
|
DESIGN THERAPEUTICS, INC. |
||
|
|
|
By: |
|
/s/João Siffert, M.D. |
|
|
João Siffert, M.D. |
|
|
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Pratik Shah, Ph.D. and João Siffert, M.D., and each of them, as his or her true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments), and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-8 has been signed by the following persons in the capacities and on the dates indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
|
|
||
/s/ João Siffert, M.D. João Siffert, M.D. |
|
President, Chief Executive Officer and Director (Principal Executive and Financial Officer) |
|
March 14, 2023 |
|
|
|
||
/s/ Pratik Shah, Ph.D. Pratik Shah, Ph.D. |
|
Executive Chairperson and Director |
|
March 14, 2023 |
|
|
|
||
/s/ Julie Burgess Julie Burgess |
|
Chief Accounting Officer |
|
March 14, 2023 |
|
|
|
||
/s/ Simeon George, M.D. Simeon George, M.D. |
|
Director |
|
March 14, 2023 |
|
|
|
||
/s/ Stella Xu, Ph.D. Stella Xu, Ph.D. |
|
Director |
|
March 14, 2023 |
|
|
|
||
/s/ Rodney Lappe, Ph.D. |
|
Director |
|
March 14, 2023 |
Rodney Lappe, Ph.D. |
|
|
|
|
|
|
|
||
/s/ John Schmid John Schmid |
|
Director |
|
March 14, 2023 |
|
|
|
||
/s/ Arsani William, M.D. Arsani William, M.D.
|
|
Director |
|
March 14, 2023 |
/s/ Heather Berger, Ph.D. |
|
Director |
|
March 14, 2023 |
Heather Berger, Ph.D. |
|
|
|
|
/s/ Deepa Prasad |
|
Director |
|
March 14, 2023 |
Deepa Prasad |
|
|
|
|
|
|
|
|
March 14, 2023 Page Two |
|
March 14, 2023
Design Therapeutics, Inc.
6005 Hidden Valley Road, Suite 110
Carlsbad, CA 92011
Ladies and Gentlemen:
You have requested our opinion, as counsel to Design Therapeutics, Inc., a Delaware corporation (the “Company”), with respect to certain matters in connection with the filing by the Company of a Registration Statement on Form S‑8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of an aggregate of up to 3,356,598 shares of the Company’s Common Stock, $0.0001 par value per share (the “Shares”), including (i) 2,797,165 shares issuable pursuant to the Company’s 2021 Equity Incentive Plan (the “Incentive Plan”) and (ii) 559,433 shares issuable pursuant to the Company’s 2021 Employee Stock Purchase Plan (together with the Incentive Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectuses, the Plans, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, and originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery, by all persons other than by the Company, of all documents where due authorization, execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid and nonassessable (except as to Shares issued pursuant to certain deferred payment arrangements under the Incentive Plan, which will be fully paid and nonassessable when such deferred payments are made in full).
Cooley LLP 10265 Science Center Drive San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
|
|
|
|
March 14, 2023 Page Two |
|
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.
Sincerely,
Cooley LLP
By: /s/ Kenneth J. Rollins
Kenneth J. Rollins
Cooley LLP 10265 Science Center Drive San Diego, CA 92121
t: (858) 550-6000 f: (858) 550-6420 cooley.com
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2021 Equity Incentive Plan and 2021 Employee Stock Purchase Plan of Design Therapeutics, Inc. of our report dated March 14, 2023, with respect to the financial statements of Design Therapeutics, Inc. included in its Annual Report (Form 10‑K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
San Diego, California
March 14, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Design Therapeutics, Inc.
(Exact name of Registrant as Specified in its Charter)
|
Security Type |
Security Class Title |
Fee Calculation Rule |
Amount Registered(1) |
Proposed Maximum Offering Price Per Share(2) |
Maximum Aggregate Offering Price(2) |
Fee Rate |
Amount of Registration Fee |
Fees to be Paid |
Equity |
Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the 2021 Equity Incentive Plan |
Other(2) |
2,797,165 shares(3) |
$6.861 |
$19,191,350 |
0.0001102 |
$2,115 |
Equity |
Common Stock, $0.0001 par value per share, reserved for issuance pursuant to the 2021 Employee Stock Purchase Plan |
Other(2) |
559,433 shares(4) |
$6.861 |
$3,838,270 |
0.0001102 |
$423 |
|
|
Total Offering Amounts |
-- |
$23,029,620 |
-- |
$2,538 |
|||
|
Total Fees Previously Paid |
-- |
-- |
-- |
-- |
|||
|
Total Fee Offsets |
-- |
-- |
-- |
-- |
|||
|
Net Fee Due |
-- |
-- |
-- |
$2,538 |
|||
(1) |
Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock (“Common Stock”) of Design Therapeutics, Inc. (the “Registrant”) that become issuable under the Registrant’s 2021 Equity Incentive Plan (the “2021 Plan”), or the Registrant’s 2021 Employee Stock Purchase Plan (the “2021 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.
|
(2) |
This estimate is made pursuant to Rule 457(c) and Rule 457(h)(1) of the Securities Act solely for purposes of calculating the registration fee. The price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on March 9, 2023, as reported by The Nasdaq Global Select Market. |
(3) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2021 Plan on January 1, 2023 pursuant to an “evergreen” provision contained in the 2021 Plan. Pursuant to such provision, on January 1st of each year commencing in 2022 and ending on (and including) January 1, 2031, the number of shares authorized for issuance under the 2021 Plan is automatically increased by a number equal to: (a) 5% of the total number of shares of |
|
capital stock outstanding on December 31st of the preceding calendar year; or (b) a lesser number of shares of Common Stock as the Registrant’s board of directors (the “Board”) may designate no later than December 31st of the immediately preceding year. |
(4) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2021 ESPP on January 1, 2023 pursuant to an “evergreen” provision contained in the 2012 ESPP. Pursuant to such provision, on January 1st of each year commencing in 2022 and ending on (and including) January 1, 2031, the number of shares authorized for issuance under the 2021 ESPP is automatically increased by a number equal to the lesser of: (a) 1% of the total number of shares of capital stock outstanding on December 31st of the preceding calendar year; (b) 1,200,000 shares; or (c) such lesser number of shares of Common Stock as the Board may designate prior to the applicable January 1st. |