As filed with the Securities and Exchange Commission on August 12, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
Apogee Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 88-0588063 |
| (State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650)
394-5230
(Address of Principal Executive Offices, Zip Code)
Non-Plan Stock Option Grant
(Full title of the plan)
Michael Henderson, M.D.
Chief Executive Officer
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650)
394-5230
(Name and address of agent for service)
Copies to:
|
Matthew Batters Chief Legal Officer and Secretary 221 Crescent St., Building 17, Suite 102b Waltham, MA 02453 (650) 394-5230 |
Ryan A. Murr Branden C. Berns Melanie E. Neary Gibson, Dunn & Crutcher LLP One Embarcadero Center, Suite 2600 San Francisco, CA 94111 (415) 393-8373 |
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 |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed by Apogee Therapeutics, Inc. (the “Company” or the “Registrant”), relating to 100,000 shares of its common stock, par value $0.00001 per share (the “Common Stock”), available for issuance pursuant to a currently outstanding nonqualified stock option award (the “Non-Plan Grant”) granted to Mark McKenna outside of the 2023 Equity Incentive Plan (the “2023 Plan”), but subject to terms and conditions substantially identical to the terms and conditions set forth in the 2023 Plan as if the Non-Plan Grant was a nonqualified stock option granted under the 2023 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1). Such documents need not be filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by the Registrant with the Securities and Exchange Commission (the “Commission”), are incorporated by reference herein and shall be deemed to be a part hereof:
1. The Registrant’s Annual Report on Form 10-K for the fiscal year ended on December 31, 2023, filed on March 5, 2024;
2. The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarters ended on March 31, 2024 and June 30, 2024, filed on May 13, 2024 and August 12, 2024, respectively;
3. The Registrant’s Current Reports on Form 8-K filed on May 28, 2024, June 7, 2024 and August 12, 2024; and
4. The description of the Common Stock contained in Exhibit 4.3 of the Registrant’s Annual Report on Form 10-K for the fiscal year ended on December 31, 2023, filed on March 5, 2024.
In addition, all documents filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof, but prior to the filing of a post-effective amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all such securities 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 filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary in such filing, none of the information that the Registrant discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that it may from time to time furnish to the Commission will be incorporated by reference into, or otherwise be included in or deemed to be a part of, this Registration Statement.
For purposes of this Registration Statement, any document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be modified or superseded to the extent that a subsequently filed document or a statement contained herein or in any other subsequently filed document that also is or is deemed to be incorporated herein by reference modifies or supersedes such document or such statement in such document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. Subject to the foregoing, all information in this Registration Statement is so qualified in its entirety by the information appearing in the documents incorporated herein by reference.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification of Directors and Officers. |
Registrant is a Delaware corporation. Section 145(a) of the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, other than an action by or in the right of the corporation, by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person 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.
Section 145(b) of the DGCL provides that a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine, upon application, that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the court shall deem proper.
Further subsections of DGCL Section 145 provide that:
| (1) | to the extent a present or former director or officer of a corporation has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (i) and (ii) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses, including attorneys’ fees, actually and reasonably incurred by such person in connection therewith; |
| (2) | the indemnification and advancement of expenses provided for pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and |
| (3) | the corporation shall have the power to purchase and maintain insurance of behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under Section 145. |
As used in this Item 6, the term “proceeding” means any threatened, pending, or completed action, suit, or proceeding, whether or not by or in the right of Registrant, and whether civil, criminal, administrative, investigative or otherwise.
Section 145 of the DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities Act. The Company’s organizational documents provide, in effect, that, to the fullest extent and under the circumstances permitted by Section 145 of the DGCL, the Company will indemnify any and all of its officers and directors. The Company has entered into indemnification agreements with its officers and directors. The Company may, in its discretion, similarly indemnify its employees and agents. The Company’s Certificate of Incorporation also relieves the Company’s directors from monetary damages to the Company or its stockholders for breach of such director’s fiduciary duty as a director to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of the DGCL, a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty, (ii) for failure to act in good faith, (iii) for intentional misconduct or knowing violation of law, (iv) for willful or negligent violations of certain provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends or (v) for any transactions from which the director derived an improper personal benefit.
The Company has purchased and expects to maintain insurance policies that, within the limits and subject to the terms and conditions thereof, cover certain expenses and liabilities that may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission committed or suffered while acting as a director or officer of the Company.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
| Exhibit No. | Exhibit Description |
| 4.1 | Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 to the Company’s Quarterly Report on Form 10-Q filed on August 28, 2023). |
| 4.2 | Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.2 to the Company’s Quarterly Report on Form 10-Q filed on August 28, 2023). |
| 5.1* | Opinion of Gibson, Dunn & Crutcher LLP. |
| 23.1* | Consent of Independent Registered Public Accounting Firm. |
| 23.2* | Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1). |
| 24.1* | Power of Attorney (included on signature page hereto). |
| 99.1 | Apogee Therapeutics, Inc. 2023 Equity Incentive Plan (incorporated by reference to Exhibit 10.14 to the Company’s Amended Registration Statement on Form S-1/A filed on July 10, 2023). |
| 99.2* | Mark McKenna Non-Plan Stock Option Grant Notice and Award Agreement. |
| 107.1* | Filing Fee Table. |
*Filed herewith.
| Item 9. | 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;
(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 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) 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 Securities Exchange Act of 1934 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; 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 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 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 Act and will be governed by the final adjudication of such issue.
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 Waltham, Commonwealth of Massachusetts, on this 12th day of August, 2024.
| Apogee Therapeutics, Inc. | ||
| By: | /s/ Michael Henderson | |
| Name: | Michael Henderson, M.D. | |
| Title: | Director and Chief Executive Officer | |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Michael Henderson, M.D. and Matthew Batters, and each of them, his or her true and lawful attorneys-in-fact and agents, each 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, including post-effective amendments, to this Registration Statement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462 under the Securities Act, and to file the same, with exhibits thereto and other documents in connection therewith, with the 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, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully so or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, the following persons have signed this Registration Statement in the capacities and on the date(s) indicated.
| Signature | Title | Date | ||
| /s/ Michael Henderson | Director and Chief Executive | August 12, 2024 | ||
| Michael Henderson, M.D. | Officer (Principal Executive Officer) | |||
| /s/ Jane Pritchett Henderson | Chief Financial Officer (Principal | August 12, 2024 | ||
| Jane Pritchett Henderson | Financial and Accounting Officer | |||
| /s/ Mark C. McKenna | Chair and Director | August 12, 2024 | ||
| Mark C. McKenna | ||||
| /s/ Lisa L. Bollinger | Director | August 12, 2024 | ||
| Lisa L. Bollinger, M.D. | ||||
| /s/ Jennifer Fox | Director | August 12, 2024 | ||
| Jennifer Fox | ||||
| /s/ Andrew Gottesdiener | Director | August 12, 2024 | ||
| Andrew Gottesdiener, M.D. | ||||
| /s/ Peter Harwin | Director | August 12, 2024 | ||
| Peter Harwin | ||||
| /s/ William Jones, Jr. | Director | August 12, 2024 | ||
| William Jones, Jr. | ||||
| /s/ Tomas Kiselak | Director | August 12, 2024 | ||
| Tomas Kiselak | ||||
| /s/ Nimish Shah | Director | August 12, 2024 | ||
| Nimish Shah |
Exhibit 5.1
 |  |
August 12, 2024
Apogee Therapeutics, Inc.
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”) of Apogee Therapeutics, Inc., a Delaware corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to 100,000 shares (the “Shares”) of the Company’s Common Stock, par value $0.00001 per share, available for issuance pursuant to a currently outstanding nonqualified stock option award granted to Mark McKenna outside of the Apogee Therapeutics, Inc. 2023 Equity Incentive Plan (the “Non-Plan Grant”).
In arriving at the opinion expressed below, we have examined originals, or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of such documents, corporate records, certificates of officers of the Company and of public officials and other instruments as we have deemed necessary or advisable to enable us to render the opinion set forth below. In our examination, we have assumed without independent investigation the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as copies. As to any facts material to this opinion, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations of officers and other representatives of the Company and others. We have also assumed that there are no agreements or understandings between or among the Company and Mr. McKenna that would expand, modify or otherwise affect the terms of the Non-Plan Grant or the rights or obligations of the Mr. McKenna thereunder.
Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that the Shares, when issued against payment therefor in accordance with the terms set forth in the Non-Plan Grant, as set forth in the Registration Statement, will be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary to render the opinions above. This opinion is limited to the effect of the current state of the DGCL and the facts as they currently exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations thereof or such facts.
| Abu
Dhabi · Beijing
· Brussels
· Century
City · Dallas
· Denver
· Dubai
· Frankfurt
· Hong
Kong · Houston
· London
· Los
Angeles Munich · New York · Orange County · Palo Alto · Paris · Riyadh · San Francisco · Singapore · Washington, D.C. |
We consent to the filing of this opinion as an exhibit to the Registration Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement and the prospectus that forms a part thereof. In giving these consents, 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.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement (Form S-8) pertaining to the Non-Plan Stock Option Grant of our report dated March 5, 2024, with respect to the consolidated financial statements of Apogee Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
August 12, 2024
Exhibit 99.2
APOGEE THERAPEUTICS, INC.
NON-PLAN STOCK OPTION AGREEMENT
GRANT NOTICE FOR
NONQUALIFIED STOCK OPTIONS
FOR GOOD AND VALUABLE CONSIDERATION, Apogee Therapeutics, Inc. (the “Company”), hereby grants to Participant named below the Nonqualified Stock Option (the “Option”) to purchase any part or all of the number of shares of Common Stock that are covered by this Option at the Exercise Price per share, each specified below, and upon the terms and subject to the conditions set forth in this Grant Notice and the Terms and Conditions (the “Terms and Conditions”) attached hereto as Exhibit A. This Option is granted outside of the Apogee Therapeutics, Inc. 2023 Equity Incentive Plan (as amended from time to time, the “Plan”), but shall be subject to terms and conditions substantially identical to the terms and conditions set forth in the Plan as if the Option were a Nonqualified Stock Option granted under the Plan. This Option is not intended to qualify as an incentive stock option under Section 422 of the Code. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan.
| Name of Participant: | Mark McKenna |
| Grant Date: | August 17, 2023 |
| Number of Shares of Common Stock covered by Option: | 100,000 |
| Exercise Price Per Share: | $23.60 |
| Expiration Date: | August 17, 2033 |
| Stockholder Approval Contingency: | No shares of Common Stock may be issued under this Option prior to approval of the issuance of shares of Common Stock pursuant to this Option by the Company’s stockholders. The issuance of shares pursuant to this Option will be submitted to the Company’s stockholders for approval at the next annual meeting of stockholders following the Grant Date. In the event that the issuance of shares of Common Stock pursuant to this Option is not approved by the Company’s stockholders prior to August 17, 2024, this Option will expire and be forfeited on that date and no shares of Common Stock will be issued pursuant to this Option. |
| Vesting Schedule: | Subject to the Terms and Conditions, the Options shall vest monthly in thirty-six equal installments commencing on August 17, 2023, subject to Mr. McKenna’s continued service to the Company through each applicable vesting date. |
By accepting this Grant Notice, Participant acknowledges that he or she has received and read, and agrees that this Option shall be subject to, the terms of this Grant Notice, the Plan, and the Terms and Conditions.
| APOGEE THERAPEUTICS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
| PARTICIPANT | ||
| Name: Mark McKenna | ||
Signature Page to
Grant Notice for
Nonqualified Stock Options
EXHIBIT A
APOGEE THERAPEUTICS, INC.
NON-PLAN STOCK OPTION AGREEMENT
TERMS AND CONDITIONS FOR
NONQUALIFIED STOCK OPTIONS
These Terms and Conditions apply to the Option granted pursuant to the Grant Notice to which these Terms and Conditions are attached (the “Grant Notice”). Although the Option is granted outside of the Plan, the Option shall be subject to the terms of the Plan as if granted thereunder, which terms are incorporated into these Terms and Conditions by this reference. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Plan or the Grant Notice, as applicable.
| 1. | Terms of Option |
Apogee Therapeutics, Inc. (the “Company”) has granted to the Participant named in the Grant Notice provided to said Participant herewith a Nonqualified Stock Option (the “Option”) to purchase up to the number of shares of Common Stock at an Exercise Price per share, each as set forth in the Grant Notice. The Option is subject to the conditions set forth in the Grant Notice, these Terms and Conditions, and the Plan. For purposes of these Terms and Conditions and the Grant Notice, any reference to the Company shall include a reference to any Subsidiary.
| 2. | Exercise of Option |
(a) The Option shall not be exercisable as of the Grant Date set forth in the Grant Notice and shall not be exercisable prior to approval of the issuance of shares of Common Stock pursuant to the Option by the Company’s stockholders (the “Stockholder Approval Contingency”). After the Grant Date and satisfaction of the Stockholder Approval Contingency, to the extent not previously exercised, and subject to termination or acceleration as provided in these Terms and Conditions and the Plan, the Option shall be exercisable only to the extent it is or becomes vested, as described in the Grant Notice or the terms of the Plan, to purchase up to that number of shares of Common Stock as set forth in the Grant Notice; provided, that (except as set forth in Section 3(a) below) the Participant remains continuously providing services to the Company and does not experience a Termination of Employment.
(b) To exercise the Option (or any part thereof), the Participant shall deliver to the Company a “Notice of Exercise” in a form specified by the Committee, specifying the number of whole shares of Common Stock the Participant wishes to purchase and how the Participant’s shares of Common Stock should be registered (in the Participant’s name only or in the Participant’s and the Participant’s spouse’s names as community property or as joint tenants with right of survivorship).
(c) The exercise price (the “Exercise Price”) of the Option is set forth in the Grant Notice. The Company shall not be obligated to issue any shares of Common Stock until the Participant shall have paid the total Exercise Price for that number of shares of Common Stock.
Exhibit A
Terms and Conditions for
Nonqualified Stock Options
The Exercise Price may be paid in, cash, including an irrevocable commitment by a broker to pay over such amount from a sale of the Common Stock issuable under the Option, or in such other manners as may be permitted by the Committee.
(d) Fractional shares may not be exercised. Shares of Common Stock will be issued as soon as practical after exercise. Notwithstanding the above, the Company shall not be obligated to deliver any shares of Common Stock during any period when the Company determines that the exercisability of the Option or the delivery of shares of Common Stock hereunder would violate Company policy or any federal, state or other applicable laws.
| 3. | Expiration of Option |
The Option shall expire and cease to be exercisable as of the earlier of (i) the Expiration Date set forth in the Grant Notice, (ii) the first anniversary of the Grant Date if the Stockholder Approval Contingency is not satisfied prior to such date, or (iii) the date specified below in connection with the Participant’s Termination of Employment:
(a) If the Participant’s Termination of Employment is as a result of the Participant’s death or Disability, the Participant may exercise any portion of the Option that is vested and exercisable at the time of such Termination of Employment until the first anniversary of the Termination Date (as defined below).
(b) If the Participant’s Termination of Employment is by the Company without Cause, in each case, on or within 12 months following a Change in Control, subject to the Participant’s execution and nonrevocation of a general release of claims in a form provided by the Company, (i) the entire Option shall be fully vested and (ii) the Participant may exercise any portion of the Option until the date that is three months following the Termination Date.
(c) If the Participant’s Termination of Employment is by the Company for Cause, the entire Option, whether or not then vested and exercisable, shall be immediately forfeited and canceled as of the Termination Date.
(d) If the Participant’s Termination of Employment is for any reason other than as set forth in Section 3(a), 3(b) or 3(c), the Participant may exercise any portion of the Option that is vested and exercisable at the time of such Termination of Employment until the date that is three months following the Termination Date.
(e) Any portion of the Option that is not vested and exercisable at the time of a Termination of Employment (after taking into account any accelerated vesting under this Section 3, Section 16 of the Plan or any other agreement between the Participant and the Company) shall be forfeited and canceled as of the Termination Date.
(f) As used in this Section 3, “Termination Date” means the date of the Participant’s Termination of Employment.
A-2
| 4. | Restrictions on Resales of Shares Acquired Pursuant to Option Exercise |
The Company may impose such restrictions, conditions or limitations as it determines appropriate as to the timing and manner of any resales by the Participant or other subsequent transfers by the Participant of any shares of Common Stock issued as a result of the exercise of the Option, including (a) restrictions under an insider trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner of sales by Participant and other option holders and (c) restrictions as to the use of a specified brokerage firm for such resales or other transfers.
| 5. | Income Taxes |
The Participant acknowledges that the ultimate liability for all taxes legally due by the Participant is and remains the Participant’s responsibility. The Participant further acknowledges that the Company (i) makes no representations or undertakings regarding the tax treatment in connection with any aspect of the Option, including the grant, vesting or exercise of the Option, the subsequent sale of the Common Stock issuable under the Option; and (ii) does not commit to, and are under no obligation to, structure the terms of the grant or any aspect of the Option to reduce or eliminate the Participant’s tax liability or achieve any particular tax result.
| 6. | Non-Transferability of Option |
Except as permitted by the Committee or as permitted under the Plan, the Participant may not assign or transfer the Option to anyone other than by will or the laws of descent and distribution and the Option shall be exercisable only by the Participant during his or her lifetime. The Company may cancel the Option if the Participant attempts to assign or transfer it in a manner inconsistent with this Section 6.
| 7. | Other Agreements Superseded |
The Grant Notice, these Terms and Conditions and the Plan constitute the entire understanding between the Participant and the Company regarding the Option. Any prior agreements, commitments or negotiations concerning the Option are superseded.
| 8. | Limitation of Interest in Shares Subject to Option |
Neither the Participant (individually or as a member of a group) nor any beneficiary or other person claiming under or through the Participant shall have any right, title, interest, or privilege in or to any shares of Common Stock allocated or reserved for the purpose of the Plan or subject to the Grant Notice or these Terms and Conditions except as to such shares of Common Stock, if any, as shall have been issued to such person upon exercise of the Option or any part of it. Nothing in the Plan, in the Grant Notice, these Terms and Conditions or any other instrument executed pursuant to the Plan shall confer upon the Participant any right to continue in the Company’s employ or service nor limit in any way the Company’s right to terminate the Participant’s service at any time for any reason.
A-3
| 9. | No Liability of Company |
The Company and any affiliate which is in existence or hereafter comes into existence shall not be liable to the Participant or any other person as to: (a) the non-issuance or sale of shares of Common Stock as to which the Company has been unable to obtain from any regulatory body having jurisdiction the authority deemed by the Company’s counsel to be necessary to the lawful issuance and sale of any shares hereunder; and (b) any tax consequence expected, but not realized, by the Participant or other person due to the receipt, exercise or settlement of any Option granted hereunder.
| 10. | General |
(a) In the event that any provision of these Terms and Conditions is declared to be illegal, invalid or otherwise unenforceable by a court of competent jurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid and enforceable, or otherwise deleted, and the remainder of these Terms and Conditions shall not be affected except to the extent necessary to reform or delete such illegal, invalid or unenforceable provision.
(b) The headings preceding the text of the sections hereof are inserted solely for convenience of reference, and shall not constitute a part of these Terms and Conditions, nor shall they affect its meaning, construction or effect. Words in the masculine gender shall include the feminine gender, and where appropriate, the plural shall include the singular and the singular shall include the plural. The use herein of the word “including” following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation”, “but not limited to”, or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope of such general statement, term or matter. References herein to any agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and not prohibited by the Plan or these Terms and Conditions.
(c) These Terms and Conditions shall inure to the benefit of and be binding upon the parties hereto and their respective permitted heirs, beneficiaries, successors and assigns.
(d) These Terms and Conditions shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to principles of conflicts of law.
(e) In the event of any conflict between the Grant Notice, these Terms and Conditions and the Plan, the Grant Notice and these Terms and Conditions shall control. In the event of any conflict between the Grant Notice and these Terms and Conditions, the Grant Notice shall control.
(f) All questions arising under the Plan or under these Terms and Conditions shall be decided by the Committee in its total and absolute discretion.
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| 11. | CLAWBACK |
The Option and any shares of Common Stock issued upon exercise of the Option will be subject to recoupment in accordance with any clawback policy adopted by the Company. No recovery of compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” or “constructive termination” (or similar term) under any agreement with the Company. By accepting the Option, the Participant is agreeing to be bound by any such clawback policy, as in effect or as may be adopted and/or modified from time to time by the Company in its discretion.
| 12. | Electronic Delivery |
By executing the Grant Notice, the Participant hereby consents to the delivery of information (including information required to be delivered to the Participant pursuant to applicable securities laws) regarding the Company and the Subsidiaries, the Plan, the Option and the Common Stock via Company web site or other electronic delivery.
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Exhibit 107.1
Calculation of Filing Fee Table
FORM S-8
(Form Type)
Apogee Therapeutics, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title(1) | Fee Calculation Rule | Amount Registered | Proposed
Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate | Amount
of Registration Fee |
| Equity | Common
stock, par value $0.00001 per share |
Rule 457(a)(2) | 100,000(3) | $41.43 | $4,143,000.00 | $147.60
per $1,000,000 |
$611.51 |
| Total Offering Amounts | $4,143,000.00 | $611.51 | |||||
| Total Fee Offsets | — | ||||||
| Net Fee Due | $611.51 | ||||||
| (1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement on Form S-8 shall be deemed to cover any additional shares of common stock, par value $0.00001 per share (the “Common Stock”), of Apogee Therapeutics, Inc. that may be issued pursuant to the Non-Plan Stock Option Grant Notice and Award Agreement evidencing the Non-Plan Stock Option Grant to Mark McKenna (the “Non-Plan Grant”) as a result of any stock dividend, stock split, recapitalization or other similar transaction, and any other securities with respect to which the outstanding shares are converted or exchanged. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) of the Securities Act, and based on the average of the high and low sale prices of the Common Stock, as quoted on the Nasdaq Stock Market, on August 5, 2024. |
| (3) | Represents 100,000 shares of Common Stock reserved for issuance pursuant to the Non-Plan Grant. |