As filed with the Securities and Exchange Commission
on November 17, 2023
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
CHECKPOINT THERAPEUTICS,
INC.
(Exact Name of Registrant as Specified in Its
Charter)
|
Delaware
(State or Other Jurisdiction of
Incorporation or Organization) |
|
47-2568632
(I.R.S. Employer
Identification Number) |
95 Sawyer Road, Suite 110
Waltham, MA 02453
(Address, Including Zip Code, of Principal Executive Offices)
Checkpoint Therapeutics, Inc. Amended and Restated
2015 Incentive Plan
(Full title of the plan)
|
James F. Oliviero
President and Chief Executive Officer
Checkpoint Therapeutics, Inc.
95 Sawyer Road, Suite 110
Waltham, MA 02453
(781) 652-4500
(Name, address and telephone
number of agent for service) |
Matthew W. Mamak
Alston & Bird LLP
90 Park Avenue, 12th Floor
New York, NY 10016
(212) 210-1256 |
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 x |
Smaller reporting company x |
| |
Emerging growth company x |
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. x
EXPLANATORY NOTE
Checkpoint Therapeutics,
Inc. (the “Company”) has filed this Registration Statement on Form S-8 (this “Registration Statement”)
with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities
Act”), to register (i) 3,000,000 shares of the Company’s common stock, par value $0.0001 per share (“Common Stock”),
that may be issued under the Checkpoint Therapeutics, Inc. Amended and Restated 2015 Incentive Plan (the “Plan”); and (ii) such
additional shares that may become issuable in accordance with the adjustment and anti-dilution provisions of the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents constituting Part
I of this Registration Statement will be delivered to participants in the Plan as specified by Rule 428(b)(1) under the Securities Act.
These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this form,
taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Upon written or oral request,
the Company will provide, without charge, the documents incorporated by reference in Item 3 of Part II of this Registration Statement.
The documents are incorporated by reference in the Section 10(a) prospectus. The Company will also provide, without charge, upon written
or oral request, other documents required to be delivered to employees pursuant to Rule 428(b). Requests for the above-mentioned information
should be directed to Investor Relations at ir@checkpointtx.com, or to James F. Oliviero, President and Chief Executive Officer,
at the address and telephone number on the cover page of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents, filed
with the Securities and Exchange Commission (the “Commission”) by the Company pursuant to the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), are incorporated herein by reference:
| (b) | The Company’s Quarterly Report on Form 10-Q for the quarters ended March 31, 2023, June 30, 2023
and September 30, 2023, filed with the Commission on May 15, 2023, August 14, 2023 and November 13, 2023, respectively; |
| (c) | The Company’s Current Reports on Form 8-K, filed on January 4, 2023, February 22, 2023, March 2, 2023, April 4, 2023, May 24, 2023, June 13, 2023, July 27, 2023, July 31, 2023, and October 3, 2023; and |
All reports and other documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which deregisters all securities that remain unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
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 other subsequently filed document
which also is incorporated or 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. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
Under the General Corporation
Law of the State of Delaware (“DGCL”), a corporation may include provisions in its certificate of incorporation that will
relieve its directors of monetary liability for breaches of their fiduciary duty to the corporation, except under certain circumstances,
including a breach of the director’s duty of loyalty, acts or omissions of the director not in good faith or which involve intentional
misconduct or a knowing violation of law, the approval of an improper payment of a dividend or an improper purchase by the corporation
of stock or any transaction from which the director derived an improper personal benefit. The Company’s Amended and Restated Certificate
of Incorporation eliminates the personal liability of directors to the Company or its stockholders for monetary damages for breach of
fiduciary duty as a director with certain limited exceptions set forth in the DGCL.
Section 145 of the DGCL grants
to corporations the power to indemnify each officer and director against liabilities and expenses incurred by reason of the fact that
he or she is or was an officer or director of the corporation if he or she acted in good faith and in a manner he or she reasonably believed
to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The Company’s Amended and Restated Certificate of Incorporation and Bylaws provide
for indemnification of each officer and director of the Company to the fullest extent permitted by the DGCL. Section 145 of the DGCL also
empowers corporations to purchase and maintain insurance on behalf of any person who is or was an officer or director of the corporation
against liability asserted against or incurred by him in any such capacity, whether or not the corporation would have the power to indemnify
such officer or director against such liability under the provisions of Section 145 of the DGCL.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
See the Exhibit Index, which
is incorporated herein by reference.
(a) The
Company 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;
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however,
that Paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration statement is on Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission
by the Company pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated
by reference in 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; and
(3) To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination
of the offering.
(b) The
undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of
the Company’s annual report pursuant to Section 13(a) or 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 Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by
a director, officer or controlling person of the Company 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 Company 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 Act and will be governed by the final adjudication of such issue.
(Signatures on following page)
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in the City of Waltham, Commonwealth of Massachusetts, on this 17th day of November, 2023.
| |
CHECKPOINT THERAPEUTICS, INC. |
| |
|
|
| |
|
|
| |
By: |
/s/ James F. Oliviero |
| |
|
James F. Oliviero |
| |
|
Chief Executive Officer and President |
POWER OF ATTORNEY
KNOWN BY ALL THESE PRESENT,
that each person whose signature appears below constitutes and appoints James F. Oliviero, and each or any one of them, as true and lawful
attorneys-in-fact and agents, with full power of substitution, for him and in his name, place and stead, in any and all capacities, to
sign any amendments (including post-effective amendments) to this registration statement and to file the same, with all exhibits thereto
and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said
attorney-in-fact, or their substitute or substitutes, may lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements
of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates
indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ James F. Oliviero |
|
Chief Executive Officer and President |
|
November 17, 2023 |
| James F. Oliviero |
|
(Principal Executive Officer) |
|
| |
|
|
|
|
| /s/ Garrett Gray |
|
Chief Financial Officer |
|
November 17, 2023 |
| Garrett Gray |
|
(Principal Financial Officer) |
|
| |
|
|
|
|
| /s/ Michael S. Weiss |
|
Chairman of the Board |
|
November 17, 2023 |
| Michael S. Weiss |
|
|
|
|
| |
|
|
|
|
| /s/ Lindsay A. Rosenwald, M.D. |
|
Director |
|
November 17, 2023 |
| Lindsay A. Rosenwald, M.D. |
|
|
|
|
| |
|
|
|
|
| /s/ Neil Herskowitz |
|
Director |
|
November 17, 2023 |
| Neil Herskowitz |
|
|
|
|
| |
|
|
|
|
| /s/ Barry Salzman |
|
Director |
|
November 17, 2023 |
| Barry Salzman |
|
|
|
|
| |
|
|
|
|
| /s/ Scott Boilen |
|
Director |
|
November 17, 2023 |
| Scott Boilen |
|
|
|
|
| |
|
|
|
|
| /s/ Christian Béchon |
|
Director |
|
November 17, 2023 |
| Christian Béchon |
|
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|
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
| Exhibit Number |
|
Description |
|
| 4.1 |
|
Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed as Exhibit 3.1 to Form 10-12G filed on July 11, 2016 (File No. 000-55506) and incorporated herein by reference. |
| 4.2 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed as Exhibit 3.2 to Form 10-12G filed on July 11, 2016 (File No. 000-55506) and incorporated herein by reference. |
| 4.3 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed as Exhibit 10.1 to Quarterly Report on Form 10-Q filed on August 7, 2018 (File No. 001-38128) and incorporated herein by reference. |
| 4.4 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed as Exhibit 3.1 to Form 8-K filed on June 4, 2020 (File No. 001-38128) and incorporated herein by reference. |
| 4.5 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed as Exhibit 3.1 to Form 8-K filed on June 11, 2021 (File No. 001-38128) and incorporated herein by reference. |
| 4.6 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed as Exhibit 3.1 to Form 8-K filed on December 5, 2022 (File No. 001-38128) and incorporated herein by reference. |
| 4.7 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation of Checkpoint Therapeutics, Inc., filed with Definitive Proxy Statement on May 1, 2023, and incorporated herein by reference. |
| 4.8 |
|
Bylaws of Checkpoint Therapeutics, Inc., filed as Exhibit 3.3 to Form 10-12G filed on July 11, 2016 (File No. 000-55506) and incorporated herein by reference. |
| 5.1 |
|
Opinion of Alston & Bird LLP. |
| 23.1 |
|
Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
| 23.2 |
|
Consent of BDO USA, P.C., Independent Registered Public Accounting Firm. |
| 23.3 |
|
Consent of Alston & Bird LLP (included in Exhibit 5.1). |
| 24.1 |
|
Power of Attorney (included on signature page). |
| 99.1 |
|
Checkpoint Therapeutics, Inc. Amended and Restated 2015 Incentive Plan, filed as Exhibit 10.1 to Quarterly Report on Form 10-Q on August 9, 2017 (File No. 001-38128), and incorporated herein by reference. |
| 99.2 |
|
Amendment to Checkpoint Therapeutics, Inc. Amended and Restated 2015 Incentive Plan, filed as Exhibit 10.1 to Form 8-K on June 4, 2020 (File No. 001-38128), and incorporated herein by reference. |
| 99.3 |
|
Amendment to Checkpoint Therapeutics, Inc. Amended and Restated 2015 Incentive Plan, filed as Exhibit 10.1 to Form 8-K on December 5, 2022 (File No. 001-38128), and incorporated herein by reference. |
| 99.4 |
|
Checkpoint Therapeutics, Inc. Amended and Restated 2015 Incentive Plan, filed with Definitive Proxy Statement on May 1, 2023, and incorporated herein by reference. |
| 107 |
|
Filing fee table. |
Exhibit 5.1
90 Park Avenue
New York, NY 10016
212-210-9400 | Fax: 212-922-3996
| Matthew W. Mamak |
Direct Dial: 212-210-1256 |
Email: matthew.mamak@alston.com |
| |
|
|
November 17, 2023
Checkpoint Therapeutics, Inc.
95 Sawyer Road, Suite 110
Waltham, MA 02453
| Re: |
|
Registration Statement on Form S-8 – Checkpoint Therapeutics, Inc. |
| |
|
Amended and Restated 2015 Incentive Plan |
Ladies and Gentlemen:
We have acted as counsel to
Checkpoint Therapeutics, Inc., a Delaware corporation (the “Corporation”), in connection with the above-referenced Registration
Statement on Form S-8 (the “Registration Statement”) to be filed on the date hereof by the Corporation with the Securities
and Exchange Commission (the “Commission”) to register under the Securities Act of 1933, as amended (the “Securities
Act”), 3,000,000 shares of the Corporation’s common stock, $0.0001 par value per share (the “Shares”), which may
be issued pursuant to the Checkpoint Therapeutics, Inc. Amended and Restated 2015 Incentive Plan (the “Plan”). We are furnishing
this opinion letter pursuant to Item 8 of Form S-8 and Item 601(b)(5) of the Commission’s Regulation S-K.
In connection with our opinion
below, we have examined the Amended and Restated Certificate of Incorporation of the Corporation, as amended, the Bylaws of the Corporation,
records of proceedings of the Board of Directors of the Corporation deemed by us to be relevant to this opinion letter, the Plan and the
Registration Statement. We also have made such further legal and factual examinations and investigations as we deemed necessary for purposes
of expressing the opinion set forth herein. In our examination, we have assumed the genuineness of all signatures, the legal capacity
of all natural persons, the authenticity of all documents submitted to us as original documents and the conformity to original documents
of all documents submitted to us as certified, conformed, facsimile, electronic or photostatic copies.
As to certain factual matters
relevant to this opinion letter, we have relied conclusively upon originals or copies, certified or otherwise identified to our satisfaction,
of such other records, agreements, documents and instruments, including certificates or comparable documents of officers of the Corporation
and of public officials, as we have deemed appropriate as a basis for the opinion hereinafter set forth. Except to the extent expressly
set forth herein, we have made no independent investigations with regard to matters of fact, and, accordingly, we do not express any opinion
as to matters that might have been disclosed by independent verification.
Our opinion set forth below
is limited to the General Corporation Law of the State of Delaware, applicable provisions of the Constitution of the State of Delaware
and reported judicial decisions interpreting such General Corporation Law and Constitution that, in our professional judgment, are normally
applicable to transactions of the type contemplated by the Plan, and we do not express any opinion herein concerning any other laws.
This opinion letter is provided
for use solely in connection with the transactions contemplated by the Registration Statement and may not be used, circulated, quoted
or otherwise relied upon for any other purpose without our express written consent. The only opinion rendered by us consists of those
matters set forth in the sixth paragraph hereof, and no opinion may be implied or inferred beyond the opinion expressly stated. Our opinion
expressed herein is as of the date hereof, and we undertake no obligation to advise you of any changes in applicable law or any other
matters that may come to our attention after the date hereof that may affect our opinion expressed herein.
Based on the foregoing, it
is our opinion that the Shares are duly authorized for issuance, and, when issued by the Corporation in accordance with the terms of the
Plan, will be validly issued, fully paid and non-assessable.
We consent to the filing of
this opinion letter as an exhibit to the Registration Statement and to the use of our name wherever appearing in the Registration Statement.
In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission thereunder.
| |
ALSTON & BIRD LLP |
| |
|
| |
By: |
/s/ Matthew W. Mamak |
| |
|
Matthew W. Mamak, Partner |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our reports
dated March 31, 2023, with respect to the financial statements of Checkpoint Therapeutics, Inc., incorporated herein by reference.
Boston, Massachusetts
November 17, 2023
Exhibit 23.2
Consent of Independent Registered
Public Accounting Firm
Checkpoint Therapeutics, Inc.
Waltham, MA
We hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our report dated March 28, 2022, relating to the financial statements of Checkpoint
Therapeutics, Inc. appearing in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
/s/ BDO USA, P.C.
New York, New York
November 17, 2023
Exhibit 107
Calculation of Filing Fee Tables
Form S-8
(Form Type)
CHECKPOINT THERAPEUTICS, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
Security
Type |
Security
Class Title |
Fee
Calculation
Rule |
Amount
Registered
(1) |
Proposed
Maximum
Offering
Price Per
Share (2) |
Maximum
Aggregate
Offering
Price (2) |
Fee Rate |
Amount of
Registration
Fee |
| Equity |
Common Stock, $0.0001 par value |
Other
(457(c) and 457(h)) |
3,000,000 |
$1.78 |
$5,340,000 |
0.00014760 |
$788.18 |
| Total Offering Amounts |
|
$5,340,000 |
|
$788.18 |
| Total Fee Offsets(3) |
|
— |
|
|
| Net Fee Due |
|
$5,340,000 |
|
$788.18 |
| (1) | Represents shares that may be issued under the Checkpoint Therapeutics, Inc. Amended and Restated 2015
Incentive Plan (the “Plan”), including additional shares that may become issuable in accordance with the adjustment and anti-dilution
provisions of the Plan. |
| (2) | Determined pursuant to Rule 457(c) and 457(h) under the Securities Act of 1933, as amended (the
“Securities Act”), solely for the purpose of calculating the registration fee, based on the average of the high and low prices
of the Company’s common stock (“Common Stock”) on the Nasdaq Capital Market on November 13, 2023. |
| (3) | The Registrant does not have any fee offsets. |
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