DRS/A 1 filename1.htm DRS/A

As confidentially submitted to the Securities and Exchange Commission on July 7, 2020. This Amendment No. 2 to the draft registration statement has not been publicly filed with the Securities and Exchange Commission and all information herein remains confidential.

Registration No. 333-                

 

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

 

 

Checkmate Pharmaceuticals, Inc.

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   2836   36-4813934
(State or other jurisdiction of
incorporation or organization)		   (Primary Standard Industrial
Classification Code Number)		  

(I.R.S. Employer

Identification Number)

245 Main Street, 2nd Floor

Cambridge, MA 02142

(617) 682-3625

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Barry Labinger

Chief Executive Officer

245 Main Street, 2nd Floor

Cambridge, MA 02142

(617) 682-3625

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

 

 

Copies to:

 

Mitchell Bloom, Esq.

Benjamin Marsh, Esq.

Goodwin Procter LLP

100 Northern Avenue

Boston, MA 02210

(617) 570-1000

  

Kleem Chaudhary, Ph.D.

Chief Business Officer

245 Main Street, 2nd Floor

Cambridge, MA 02142

(617) 682-3625

  

Peter N. Handrinos, Esq.

Wesley C. Holmes, Esq.

Latham & Watkins LLP

200 Clarendon Street

Boston, MA 02116

(617) 948-6000

 

 

Approximate date of commencement of proposed sale to the public:

As soon as practicable after the effective date of this registration statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box.  ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, 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 to Section 7(a)(2)(B) of the Securities Act.  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of each Class of

Securities to be Registered

  

Proposed Maximum

Aggregate

Offering Price(1)(2)

   Amount of
Registration Fee

Common Stock, par value $0.0001 per share

                      

 

 

(1)

Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

(2)

Includes the offering price of shares that the underwriters may purchase pursuant to an option to purchase additional shares.

 

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

Explanatory Note

This Amendment No. 2 to the Draft Registration Statement on Form S-1 of Checkmate Pharmaceuticals, Inc. is to amend the exhibit index and to submit exhibits 10.7, 10.8, 10.9, 10.10, 10.11 and 10.12. Accordingly, this Amendment No. 2 consists only of the facing page, this explanatory note, Part II, including the signature page and the exhibit index, and the exhibits filed herewith. This Amendment No. 2 does not contain a copy of the prospectus that was included in the Draft Registration Statement on Form S-1, as amended by Amendment No. 1 and is not intended to amend or delete any part of the prospectus.

 

1

Part II

Information not required in prospectus

Item 13. Other expenses of issuance and distribution.

The following table sets forth the fees and expenses, other than underwriting discounts and commissions, payable in connection with the registration of the common stock hereunder. All amounts are estimates except the SEC registration fee, FINRA filing fee and The Nasdaq Global Market listing fee.

 

    

Amount
to be paid

  

SEC registration fee

    $         *  

FINRA filing fee

      *  

Nasdaq Global Market listing fee

      *  

Printing and engraving expenses

      *  

Legal fees and expenses

      *  

Accounting fees and expenses

      *  

Transfer agent and registrar fees and expenses

      *  

Miscellaneous

      *  
  

 

 

  

Total

      *  
  

 

 

  

 

*

To be provided by amendment.

Item 14. 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.

We have adopted provisions in our certificate of incorporation to be in effect upon the completion of this offering and bylaws to be in effect upon the effectiveness of this registration statement that limit or eliminate the personal liability of our 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 us or our stockholders for monetary damages or breach of fiduciary duty as a director, except for liability for:

 

  •  

any breach of the director’s duty of loyalty to us or our stockholders;

 

  •  

any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;

 

  •  

any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or

 

  •  

any transaction from which the director derived an improper personal benefit.

 

II-1

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, our bylaws provide that:

 

  •  

we will indemnify our directors, officers and, in the discretion of our 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

 

  •  

we will advance reasonable expenses, including attorneys’ fees, to our directors and, in the discretion of our board of directors, to our officers and certain employees, in connection with legal proceedings relating to their service for or on behalf of us, subject to limited exceptions.

We have entered into indemnification agreements with each of our directors and intend to enter into such agreements with our executive officers. These agreements provide that we will indemnify each of our directors, our executive officers and, at times, their affiliates to the fullest extent permitted by Delaware law. We will advance expenses, including attorneys’ fees (but excluding judgments, fines and settlement amounts), to each indemnified director, executive officer or affiliate in connection with any proceeding in which indemnification is available and we will indemnify our directors and officers for any action or proceeding arising out of that person’s services as a director or officer brought on behalf of us or in furtherance of our rights. Additionally, certain of our directors or officers 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 or officer’s services as a director referenced herein. Nonetheless, we have agreed in the indemnification agreements that our obligations to those same directors or officers 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.

We also maintain general liability insurance which covers certain liabilities of our 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 of 1933, as amended (the “Securities Act”).

The underwriting agreement filed as Exhibit 1.1 to this registration statement provides for indemnification of us and our directors and officers by the underwriters against certain liabilities under the Securities Act and the Securities Exchange Act of 1934.

Item 15. Recent Sales of Unregistered Securities

In the three years preceding the filing of this registration statement, we have issued the following securities that were not registered under the Securities Act:

(a) Issuances of Capital Stock

In February 2017, certain investors purchased an aggregate amount of 5,000,000 shares of our Series A preferred stock for approximately $5,000,000 at $1.00 per share.

In June 2017, with subsequent offerings in November 2018, March 2019, August 2019 and January 2020, certain investors purchased an aggregate of 29,972,284 shares of our Series B preferred stock for approximately $64,999,993 at $2.17 per share.

In June 2020, we sold an aggregate of 46,828,167 shares of our Series C preferred stock at a purchase price of $1.6016 per share for an aggregate amount of approximately $75.0 million. In connection with the Series C financing, we issued an additional 6,295,756 shares of Series C preferred stock in exchange for previously issued convertible notes with a face amount of $10.0 million and accrued interest of approximately $83 thousand.

 

II-2

In connection with the Series C financing, the conversion price of the Series B was decreased from $2.16867 to $1.9319 such that the rate at which shares of Series B may be converted into shares of common stock was adjusted from 1:1 to 1.12256:1.

No underwriters were involved in the foregoing sales of securities. The sales of securities described above were deemed to be exempt from registration pursuant to Section 4(a)(2) of the Securities Act, including Regulation D and Rule 506 promulgated thereunder, as transactions by an issuer not involving a public offering. All of the purchasers in these transactions represented to us in connection with their purchase that they were acquiring the securities for investment and not distribution, that they could bear the risks of the investment and could hold the securities for an indefinite period of time. Such purchasers received written disclosures that the securities had not been registered under the Securities Act and that any resale must be made pursuant to a registration or an available exemption from such registration. All of the foregoing securities are deemed restricted securities for the purposes of the Securities Act.

(b) Grants and Exercises of Stock Options

We have granted stock options to purchase an aggregate of 8,780,670 shares of our common stock, net of forfeitures and cancellations with exercise prices ranging from $0.126 to $0.35 per share, to certain employees, directors and consultants pursuant to the 2015 Stock Incentive Plan. Through the date of filing, 582,292 shares of common stock have been issued upon the exercise of stock options pursuant to the 2015 Plan.

The issuances of the securities described above were deemed to be exempt from registration pursuant to Section 4(a)(2) of the Securities Act or Rule 701 promulgated under the Securities Act as transactions pursuant to compensatory benefit plans. The shares of common stock issued upon the exercise of options are deemed to be restricted securities for purposes of the Securities Act.

Item 16. Exhibits and financial statement schedules.

 

(a)

Exhibits

 

Exhibit
number

   

Description

  1.1*    Form of Underwriting Agreement.
  3.1**    Third Amended and Restated Certificate of Incorporation of the Registrant, as amended, as currently in effect.
  3.2*    Form of Amended and Restated Certificate of Incorporation of Registrant, to be in effect prior to the completion of this offering.
  3.3**    Amended and Restated Bylaws of the Registrant, as currently in effect.
  3.4*    Form of Second Amended and Restated Bylaws of the Registrant, to be in effect prior to the completion of this offering.
  4.1*    Specimen Common Stock Certificate.
  4.2**    Amended and Restated Investors’ Rights Agreement among the Registrant and certain of its stockholders, dated June 9, 2020.
  5.1*    Opinion of Goodwin Procter LLP.
10.1#*    2015 Stock Option and Grant Plan, amendments thereto, and form of award agreements thereunder.
10.2#*    2020 Stock Option and Grant Plan, and form of award agreements thereunder.
10.3#*    2020 Employee Stock Purchase Plan.
10.4#*    Form of Indemnification Agreement between the Registrant and each of its directors and executive officers.

 

II-3

Exhibit
number

   

Description

10.5#*    2020 Senior Executive Cash Bonus Plan.
10.6#*    Non-Employee Director Compensation Policy.
10.7†    License Agreement among the Registrant and Cytos Biotechnology Ltd, dated June 17, 2015.
10.8†    Amendment No. 1 to the License Agreement among Kuros Biosciences AG (formerly Cytos Biotechnology, LTD), dated August 15, 2017.
10.9†    Amendment No. 2 to the License Agreement among Kuros Biosciences AG (formerly Cytos Biotechnology, LTD), dated January 5, 2018.
10.10†    Master Services Agreement with Fujifilm among the Registrant and FujiFilm Diosynth Biotechnologies UK Limited, dated September 25, 2015.
10.11†    Clinical Trial Collaboration and Supply Agreement among the Registrant and Ares Trading S.A. and Pfizer, Inc., dated August 22, 2018.
10.12†    Amendment No. 1 to the Clinical Trial Collaboration and Supply Agreement among the Registrant and Ares Trading S.A. and Pfizer, Inc., dated March 4, 2019.
10.13*    Cambridge Innovation Center Service Agreement, among the Registrant and CIC Innovation Communities, LLC, dated May 26, 2015.
10.14#**    Employment Agreement between the Registrant and Barry Labinger, dated November 26, 2018.
10.15#**    Employment Agreement between the Registrant and Kleem Chaudhary, dated October 14, 2019.
10.16#**    Employment Agreement between the Registrant and Karen Brennan, dated June 13, 2017.
10.17#**    Employment Agreement between the Registrant and Art Krieg, dated July 14, 2015.
10.18#**    Executive Employment Agreement by and between the Registrant and James Wooldridge, dated September 19, 2019.
10.19#**    Consulting Agreement between the Registrant and Danforth Advisors LLC, dated June 5, 2019.
21.1**    List of Subsidiaries of the Registrant.
23.1*    Consent of KPMG LLP, independent registered public accounting firm.

 

*

To be filed by amendment.

**

Previously filed.

#

Indicates a management contract or any compensatory plan, contract or arrangement.

†

Portions of this exhibit (indicated by asterisks) will be omitted in accordance with the rules of the Securities and Exchange Commission. Omitted material for which confidential treatment will be requested will be filed separately with the Securities and Exchange Commission.

 

(b)

Financial Statements Schedules:

Schedules have been omitted because the information required to be set forth therein is not applicable or is shown in the financial statements or notes thereto.

Item 17. Undertakings.

Insofar as indemnification for liabilities arising under the Securities Act, or the 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 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 registrant of expenses incurred or

 

II-4

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.

The undersigned registrant hereby undertakes that:

 

  (1)

Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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 registrant of expenses incurred or paid by a directors, 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.

 

  (2)

For purposes of determining any liability under the Securities Act of 1933, the information omitted from a form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act, shall be deemed to be part of this registration statement as of the time it was declared effective.

 

  (3)

For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus 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.

 

  (4)

If the Registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

II-5

Signatures

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cambridge, State of Massachusetts, on the      day of                 , 2020.

 

CHECKMATE PHARMACEUTICALS, INC.
By:  

 

  Name: Barry Labinger
  Title:   President, Chief Executive Officer and Director

Signatures and Power of Attorney

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints                  and                 , and each of them, either of whom may act without the joinder of the other, as his true and lawful attorneys-in-fact and agents with full power of substitution and re-substitution, 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 to sign any registration statement for the same offering covered by the registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them, or his or their substitute or substitutes, may lawfully do or cause to be done or 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 indicated on the      day of                 , 2020.

 

Name

   

Title

 

Barry Labinger

   

President, Chief Executive Officer and Director (Principal Executive Officer)

 

 

Kleem Chaudhary, Ph.D.

   

Chief Business Officer (Principal Financial Officer and Principal Accounting Officer)

 

 

Michael Powell, Ph.D.

   

Director (Chairman)

 

 

Peter Colabuono

   

Director

 

 

Keith Flaherty, M.D.

   

Director

 

 

II-6

Name

   

Title

 

Alan Fuhrman

   

Director

 

 

Oren Isacoff, M.D.

   

Director

 

 

Arthur M. Krieg, M.D.

   

Director

 

 

Nilesh Kumar, Ph.D.

   

Director

 

 

II-7