S-8

As filed with the Securities and Exchange Commission on May 12, 2023 

Registration No. 333-

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

______________________

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

______________________

MIRATI THERAPEUTICS, INC.

(Exact name of registrant as specified in its charter) 

______________________

Delaware	46-2693615
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

3545 Cray Court

San Diego, California 92121

(858) 332-3410

(Address of Principal Executive Offices) 

______________________

2013 Employee Stock Purchase Plan

(Full title of the plan)

______________________

David Meek

Chief Executive Officer

Mirati Therapeutics, Inc.

3545 Cray Court

San Diego, California 92121

(858) 332-3410

(Name, address, including zip code, and telephone number, including area code, of agent for service) 

______________________

Copies to:

Thomas A. Coll, Esq.

Cooley LLP

10265 Science Center Drive

San Diego, California 92121

Tel: (858) 550-6000

______________________

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☒	Accelerated filer	☐
Non-accelerated filer	☐	Smaller reporting company	☐
		Emerging growth company	☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐

INCORPORATION OF DOCUMENTS BY REFERENCE

This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plan is effective.

The Registrant previously registered shares of its Common Stock for issuance under the Registrant’s 2013 Employee Stock Purchase Plan under Registration Statement on Form S-8 filed with the Securities and Exchange Commission on July 15, 2013 (No. 333-189965). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporated by reference the contents of the Registration Statement referenced above.

Item 8. Exhibits.

Exhibit Number	Description
4.1	Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference from Registrant’s Registration Statement on Form 10-12B (No. 001-35921), filed with the Securities and Exchange Commission on May 10, 2013).
4.2	Bylaws of the Registrant (incorporated by reference from Registrant’s Registration Statement on Form 10-12B (No. 001-35921), filed with the Securities and Exchange Commission on May 10, 2013).
4.3	Amendment to Bylaws (incorporated by reference from Registrant’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on June 16, 2016).
4.4	Form of Common Stock Certificate of the Registrant (incorporated by reference from Registrant’s Amended Registration Statement on Form 10-12B/A (No. 001-35921), filed with the Securities and Exchange Commission on June 14, 2013).
4.5	Form of Warrant to Purchase Common Stock (incorporated by reference from Registrant’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on January 6, 2017).
4.6	Form of Warrant to Purchase Common Stock (incorporated by reference from Registrant’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on November 16, 2017).
4.7	Form of Warrant to Purchase Common Stock (incorporated by reference from Registrant’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on June 7, 2018).
5.1	Opinion of Cooley LLP.
10.1	2013 Employee Stock Purchase Plan, as amended (incorporated by reference from Registrant’s Current Report on Form 8-K, filed with the Securities and Exchange Commission on May 12, 2023).
23.1	Consent of Independent Registered Public Accounting Firm.
23.2	Consent of Cooley LLP. Reference is made to Exhibit 5.1.
24.1	Power of Attorney. Reference is made to the signature page hereto.
107	Filing Fee Table.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on May 12, 2023.

	MIRATI THERAPEUTICS, INC.
By:	/s/ David D. Meek
	David D. Meek
	Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints David D. Meek and Laurie D. Stelzer, and each of them, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in 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 either of them, or their or his or her substitutes or substitute, may lawfully do or cause to be done by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature	Title	Date
/s/ DAVID D. MEEK	Chief Executive Officer and Member of the Board of Directors	May 12, 2023
David D. Meek	(Principal Executive Officer)
/s/ LAURIE D. STELZER	Chief Financial Officer	May 12, 2023
Laurie D. Stelzer	(Principal Financial Officer and Principal Accounting Officer)
/s/ CHARLES M. BAUM	President, Founder, Head of Research and Development and Member of the Board of Directors	May 12, 2023
Charles M. Baum, M.D., Ph.D.
/s/ FAHEEM HASNAIN	Chairman of the Board of Directors	May 12, 2023
Faheem Hasnain
/s/ BRUCE L.A. CARTER	Member of the Board of Directors	May 12, 2023
Bruce L.A. Carter, Ph.D.
/s/ JULIE CHERRINGTON	Member of the Board of Directors	May 12, 2023
Julie Cherrington, Ph.D.
/s/ AARON DAVIS	Member of the Board of Directors	May 12, 2023
Aaron Davis
/s/ CRAIG JOHNSON	Member of the Board of Directors	May 12, 2023
Craig Johnson
/s/ MAYA MARTINEZ-DAVIS	Member of the Board of Directors	May 12, 2023
Maya Martinez-Davis
/s/ SHALINI SHARP	Member of the Board of Directors	May 12, 2023
Shalini Sharp

EX-5.1

Exhibit 5.1

Thomas A. Coll

+1 858 550 6013

collta@cooley.com

May 12, 2023

Mirati Therapeutics, Inc.

3545 Cray Court

San Diego, California 92121

Ladies and Gentlemen:

You have requested our opinion, as counsel to Mirati Therapeutics, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to 750,000 shares of the Company’s Common Stock, $0.001 par value per share (the “Shares”) issuable pursuant to the Mirati Therapeutics, Inc. 2013 Employee Stock Purchase Plan (“ESPP”).

In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectus, the ESPP, the Company’s certificate of incorporation and bylaws, each as currently in effect, and originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness of such documents. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the ESPP, the Registration Statement and related prospectus, will be validly issued, fully paid and nonassessable (except as to Shares issued pursuant to deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

Sincerely,

Cooley LLP

By: /s/ Thomas A. Coll

Thomas A. Coll

10265 SCIENCE CENTER DRIVE, SAN DIEGO, CA 92121 T: (858) 550-6000 F: (858) 550-6420 WWW.COOLEY.COM

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2013 Employee Stock Purchase Plan of Mirati Therapeutics, Inc. of our reports dated February 28, 2023, with respect to the consolidated financial statements of Mirati Therapeutics, Inc. and the effectiveness of internal control over financial reporting of Mirati Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

San Diego, California

May 12, 2023

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Mirati 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	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.001 par value per share	Rule 457(c) and Rule 457(h)	750,000 (2)	$39.0065 (3)	$29,254,875.00	0.00011020	$3,223.89
Total Offering Amounts					$29,254,875.00		$3,223.89
Total Fee Offsets							—
Net Fee Due							$3,223.89

(1)    Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers such additional number of securities as may become issuable pursuant to the provisions of the Mirati Therapeutics, Inc. 2013 Employee Stock Purchase Plan (the “ESPP”) by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock, par value $0.001 per share (the “Common Stock”).

(2)    Represents additional shares of Common Stock to be registered and available for issuance under the ESPP, pursuant to an amendment to the ESPP, which was duly authorized and approved and made effective as of May 11, 2023.

(3)    Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h) under the Securities Act, on the basis of the average of the high and low sale prices of the Registrant’s Common Stock on May 8, 2023, as reported on the Nasdaq Global Select Market, multiplied by 85%. Pursuant to the ESPP, the purchase price of the shares of Common Stock will be 85% of the lesser of the fair market value of the Common Stock on the Offering Date or the Purchase Date (each as defined in the ESPP).