Securities Registration: Employee Benefit Plan (s-8)
April 13 2021 - 6:05AM
Edgar (US Regulatory)
As
filed with the Securities and Exchange Commission on April 12, 2021
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
Under
The
Securities Act of 1933
GEMINI
THERAPEUTICS, INC.
(Exact
name of registrant as specified in its charter)
Delaware
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85-1612845
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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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300
One Kendall Square, 3rd Floor
Cambridge,
MA 02139
(617)
401-4400
(Address
of Principal Executive Offices)
Gemini
Therapeutics, Inc. 2021 Stock Option and Incentive Plan (the “2021 Plan”)
Gemini
Therapeutics, Inc. 2021 Inducement Plan (the “2021 Inducement Plan”)
(Full
Title of the Plans)
Jason
Meyenburg
President
and Chief Executive Officer
300
One Kendall Square, 3rd Floor
Cambridge,
MA 02139
(617)
401-4400
(Name,
address, including zip code, and telephone number, including area code, of agent for service)
Copies
to:
Mitchell
S. Bloom, Esq.
Laurie
A. Burlingame, Esq.
Goodwin
Procter LLP
100
Northern Avenue
Boston,
Massachusetts 02210
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
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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
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(6)
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Common stock, par value $0.0001 per share
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4,264,341 shares
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(2)
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$
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13.565
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(3)
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$
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57,845,785.70
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$
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6,310.98
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Common stock, par value $0.0001 per share
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1,616,895
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(4)
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$
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13.565
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(5)
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$
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21,933,180.70
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$
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2,392.91
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Total
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5,881,236 shares
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—
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$
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79,778,966.40
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$
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8,703.89
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(1)
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Pursuant to
Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this registration statement (this “Registration Statement”) shall also cover
any additional shares of common stock, par value $0.0001 per share (the “common stock”)
of Gemini Therapeutics, Inc. (the “Registrant”) which become issuable under the
above-named plans by reason of any stock dividend, stock split, recapitalization or any other
similar transaction effected without the receipt of consideration which results in an increase
in the number of outstanding shares of common stock. Pursuant to Rule 416(c) under the Securities
Act, this Registration Statement shall also cover an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
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(2)
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Represents
4,264,341 shares of common stock initially reserved for future issuance under the 2021 Plan.
The 2021 Plan provides that the number of shares of common stock reserved and available for
issuance under the 2021 Plan shall be cumulatively increased on January 1 of each year.
The number of shares of common stock increased each year will be equal to the lesser of:
(i) 4% of the number of shares of common stock issued and outstanding on the immediately
preceding December 31 or (ii) such lesser amount as determined by the Registrant’s
Board of Directors or the compensation committee of the Board or a similar committee performing
the functions of the compensation committee and which is comprised of not less than two Non-Employee
Directors who are independent. (the “Administrator”).
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(3)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) of
the Securities Act, and based on $13.565, the average of the high and low sale prices of
the common stock as reported on The Nasdaq Capital Market (“Nasdaq”) on April
9, 2021 (such date being within five business days of the date that this Registration Statement
was filed with the U.S. Securities and Exchange Commission (the “Commission”)).
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(4)
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Represents
1,616,895 shares of common stock initially reserved for future issuance under the 2021 Inducement
Plan.
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(5)
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Estimated
solely for the purpose of calculating the registration fee pursuant to Rule 457(a) of
the Securities Act, and based on $13.565, the average of the high and low sale prices of
the common stock as reported on Nasdaq on April 9, 2021 (such date being within five business
days of the date that this Registration Statement was filed with the Commission).
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(6)
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Calculated
by multiplying the proposed maximum aggregate offering price of securities to be registered
by 0.0001091.
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Proposed
sales to take place as soon after the effective date of the Registration Statement as awards are granted, exercised or distributed under
the above-named plans.
Part
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
Plan Information.
The documents
containing the information specified in this Item 1 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities
Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed
with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under
the Securities Act.
Item 2.
Registrant Information and Employee Plan Annual Information.
The documents
containing the information specified in this Item 2 will be sent or given to participants as specified by Rule 428(b)(1) under the Securities
Act. In accordance with the rules and regulations of the Commission and the instructions to Form S-8, such documents are not being filed
with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under
the Securities Act.
Part
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
Incorporation of Documents by Reference.
The Registrant
hereby incorporates by reference into this Registration Statement the following documents filed with the Commission:
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(a)
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The prospectus
filed by the Registrant with the Commission pursuant to Rule 424(b) under the Securities
Act, on January 19, 2021, relating to the Registration Statement on Form S-4, as amended
(File No. 333- 249785);
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(b)
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The Registrant’s
Annual Report on Form 10-K for the fiscal year ended December 31, 2020 (as filed with the
Commission on March 29, 2021);
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(c)
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The description
of the Registrant’s common stock contained in the Registrant’s registration statement
on Form 8-A (File No. 001-39438), filed by the Registrant with the Commission under
Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), on February 5, 2021, including any amendments or reports filed for the purpose
of updating such description;
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(d)
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The Registrant’s
registration statement on Form S-1/A, as amended, filed by the Registrant with the Commission
under the Securities Act, on March 29, 2021 (File No. 333-253175); and
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(e)
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The Registrant’s
Current Reports on Form 8-K filed with the Commission on January 19, 2021, January 28, 2021,
February 3, 2021, February 5, 2021, February 11, 2021 (as amended on March 29, 2021), February 23, 2021 and March 29, 2021.
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All documents
that the registrant subsequently files pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all of the shares of common stock offered have been sold or which deregisters
all of such shares then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a
part hereof from the date of the 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 to
the extent that a statement contained herein or in any other subsequently filed document which also is or 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.
Under no
circumstances will any information filed under current items 2.02 or 7.01 of Form 8-K be deemed incorporated herein by reference unless
such Form 8-K expressly provides to the contrary.
Item 4.
Description of Securities.
Not applicable.
Item 5.
Interests of Named Experts and Counsel.
Not applicable.
Item 6.
Indemnification of Directors and Officers.
Section 145
of the Delaware General Corporation Law (the “DGCL”) authorizes a corporation to indemnify its directors and officers against
liabilities arising out of actions, suits and proceedings to which they are made or threatened to be made a party by reason of the fact
that they have served or are currently serving as a director or officer to a corporation. The indemnity may cover expenses (including
attorneys’ fees) judgments, fines and amounts paid in settlement actually and reasonably incurred by the director or officer in
connection with any such action, suit or proceeding. Section 145 permits corporations to pay expenses (including attorneys’
fees) incurred by directors and officers in advance of the final disposition of such action, suit or proceeding. In addition, Section 145
provides that a corporation has the power to purchase and maintain insurance on behalf of its directors and officers against any liability
asserted against them and incurred by them in their capacity as a director or officer, or arising out of their status as such, whether
or not the corporation would have the power to indemnify the director or officer against such liability under Section 145.
The Registrant
has adopted provisions in the Registrant’s certificate of incorporation and bylaws, which became effective in connection with the
completion of the Registrant’s business combination on February 5, 2021, that limit or eliminate the personal liability of the
Registrant’s directors to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended. Consequently,
a director will not be personally liable to the Registrant or its stockholders for monetary damages or breach of fiduciary duty as a
director, except for liability for:
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any
breach of the director’s duty of loyalty to the Registrant or its stockholders;
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any
act or omission not in good faith or that involves intentional misconduct or a knowing violation
of law;
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any
unlawful payments related to dividends or unlawful stock purchases, redemptions or other
distributions; or
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any
transaction from which the director derived an improper personal benefit.
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These limitations
of liability do not alter director liability under the federal securities laws and do not affect the availability of equitable remedies
such as an injunction or rescission.
In addition,
the Registrant’s bylaws provide that:
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the
Registrant will indemnify its directors, officers and, in the discretion of its board of
directors, certain employees to the fullest extent permitted by the DGCL, as it now exists
or may in the future be amended; and
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the
Registrant will advance expenses, including attorneys’ fees, to its directors and,
in the discretion of its board of directors, to its officers and certain employees, in connection
with legal proceedings relating to their service for or on behalf of the registrant, subject
to limited exceptions
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The Registrant
has entered into indemnification agreements with several of its directors and executive officers. These agreements provide that the registrant
will indemnify each of its directors and executive officers to the fullest extent permitted by Delaware law. The registrant will advance
expenses, including attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director or executive
officer in connection with any proceeding in which indemnification is available and the registrant will indemnify its directors and officers
for any action or proceeding arising out of that person’s services as a director or officer brought on behalf of the registrant
or in furtherance of the Registrant’s rights. Additionally, certain of the Registrant’s directors may have certain rights
to indemnification, advancement of expenses or insurance provided by their affiliates or other third parties, which indemnification relates
to and might apply to the same proceedings arising out of such director’s services as a director referenced herein. Nonetheless,
the Registrant has agreed in the indemnification agreements that the Registrant’s obligations to those same directors are primary
and any obligation of such affiliates or other third parties to advance expenses or to provide indemnification for the expenses or liabilities
incurred by those directors are secondary.
The registrant
also maintains general liability insurance which covers certain liabilities of its directors and officers arising out of claims based
on acts or omissions in their capacities as directors or officers, including liabilities under the Securities Act.
Item 7.
Exemption from Registration Claimed.
Not applicable.
Item 8.
Exhibits.
EXHIBIT
INDEX
Exhibit No.
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Description
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4.1
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Form of Specimen Common Stock Certificate (incorporated by reference to Exhibit 4.1 to Form S-4/A filed on January 19, 2021).
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4.2
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Amended and Restated Articles of Incorporation of Gemini Therapeutics, Inc. (incorporated by reference to Exhibit 3.1 to Form 10-K filed on March 29, 2021).
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4.3
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Amended and Restated By-laws of Gemini Therapeutics, Inc. (incorporated by reference to Exhibit 3.2 to Form 10-K filed on March 29, 2021).
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5.1*
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Opinion of Goodwin Procter LLP.
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23.1*
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Consent of Ernst & Young LLP, independent registered accounting firm for Gemini Therapeutics, Inc.
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23.2*
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Consent of Goodwin Procter LLP (included as part of Exhibit 5.1)
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23.3*
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Consent of WithumSmith+Brown, PC, independent registered accounting firm for FS Development Corp.
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24.1*
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Power of Attorney (included on signature page of the Registration Statement).
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99.1
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2021 Stock Option and Incentive Plan (incorporated by reference to Annex D to the Proxy Statement/Prospectus filed on January 19, 2021).
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99.2
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Forms of Award Agreements under the 2021 Stock Option and Incentive Plan (incorporated by reference to Exhibit 10.5 to the Registrant’s Current Report on Form 8-K filed on February 11, 2021).
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99.3*
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2021 Inducement Plan.
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Item 9.
Undertakings.
(a) The 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;
(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% 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) and (a)(1)(ii) herein 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 Commission by the Registrant pursuant to Section 13
or Section 15(d) of the Exchange Act (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, 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.
(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.
(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 foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the 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, 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 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act, 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 Cambridge, Massachusetts, on April 12, 2021.
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Gemini Therapeutics,
Inc.
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By:
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/s/
Jason Meyenburg
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Name:
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Jason
Meyenburg
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Title:
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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 Jason Meyenburg, his or her true
and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments to this Annual Report on Form 10-K, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the United States 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 connection therewith, 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 any of them, or their or his substitutes or 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 has been signed by the following persons in the capacities
and on the dates indicated.
Name
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Position
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Date
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/s/
Jason Meyenburg
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Chief Executive
Officer and Director
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Dated:
April 12, 2021
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Jason Meyenburg
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(Principal
Executive Officer)
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/s/
Brian Piekos
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Principal
Financial and Principal
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Dated:
April 12, 2021
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Brian Piekos
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Accounting
Officer
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/s/
Jim Tananbaum
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Director
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Dated:
April 12, 2021
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Dr. Jim Tananbaum
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/s/
Carl Gordon
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Director
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Dated:
April 12, 2021
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Dr. Carl Gordon
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/s/
Jean George
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Director
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Dated:
April 12, 2021
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Jean George
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/s/
David Lubner
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Director
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Dated:
April 12, 2021
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David Lubner
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/s/
Tuyen Ong
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Director
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Dated:
April 12, 2021
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Dr. Tuyen Ong
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/s/
Jason Rhodes
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Director
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Dated:
April 12, 2021
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Jason Rhodes
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