As filed with the Securities and Exchange Commission on March 21, 2024
Registration No. 333-
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 |
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FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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Dianthus Therapeutics, Inc. |
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(Exact name of registrant as specified in its charter) |
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Delaware |
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81-0724163 |
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(State or Other Jurisdiction of Incorporation or Organization |
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(I.R.S. Employer Identification No.) |
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7 Times Square, 43rd Floor New York, NY 10036 |
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(Address of Principal Executive Offices, Zip Code) |
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Amended and Restated Dianthus Therapeutics, Inc. Stock Option and Incentive Plan |
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Dianthus Therapeutics, Inc. Equity Inducement Plan |
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Dianthus Therapeutics, Inc. Inducement Stock Option Agreement |
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Dianthus Therapeutics, Inc. 2019 Employee Stock Purchase Plan |
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(Full title of the plan) |
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Adam M. Veness, Esq. Senior Vice President, General Counsel and Secretary Dianthus Therapeutics, Inc. 7 Times Square, 43rd Floor New York, NY 10036 (929) 999-4055 |
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Copies to: |
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Ryan A. Murr, Esq. Branden C. Berns, Esq. Chris W. Trester, Esq. Gibson, Dunn & Crutcher LLP One Embarcadero Center, Suite 2600 San Francisco, CA 94111 Telephone: (415) 393-8200 Facsimile: (415) 393-8306 |
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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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Accelerated filer |
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Non-accelerated filer |
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Smaller reporting company |
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Emerging growth company |
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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. ☐ |
EXPLANATORY NOTE
This Registration Statement on Form S-8 (this “Registration Statement”) registers (i) 592,707 additional shares of common stock, $0.001 par value per share (“Common Stock”), of Dianthus Therapeutics, Inc. (f/k/a the Magenta Therapeutics, Inc.) (the “Registrant”) under the Amended and Restated Dianthus Therapeutics, Inc. Stock Option and Incentive Plan (the “Incentive Plan”), (ii) 62,500 additional shares of Common Stock under the Dianthus Therapeutics, Inc. 2019 Employee Stock Purchase Plan (the “ESPP”), (iii) 300,000 shares of Common Stock under the Dianthus Therapeutics, Inc. Equity Inducement Plan (the “Inducement Plan”), which was adopted by the Registrant’s board of directors on February 7, 2024 to provide for the grant of inducement awards in accordance with the requirement of Nasdaq Listing Rule 5635(c)(4), and (iv) 96,000 shares of Common Stock issuable upon exercise of inducement stock options pursuant to an individual Dianthus Therapeutics, Inc. Inducement Stock Option Agreement with an employee of the Registrant in accordance with Nasdaq Listing Rule 5635(c)(4) (the “Individual Inducement Award”).
The number of shares of Common Stock reserved and available for issuance under the Incentive Plan is subject to an automatic annual increase on each January 1 by an amount equal to 4% of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31 or such lesser number of shares of Common Stock as determined by the Administrator (as defined in the Incentive Plan). Accordingly, on January 1, 2024, the number of shares of Common Stock reserved and available for issuance under the Incentive Plan increased by 592,707. The additional shares are of the same class as other securities relating to the Incentive Plan for which the Registrant’s registration statement filed Form S-8 filed with the Securities and Exchange Commission (the “SEC”) on October 4, 2023, March 8, 2022, March 3, 2021, March 3, 2020, March 19, 2019 and June 22, 2018 (Registration Nos. 333-274865, 333-263358, 333-253815, 333-236853, 333-230387, and 333-225838), which, together with all exhibits filed therewith or incorporated therein by reference, are hereby incorporated by reference pursuant to General Instruction E to Form S-8 and the shares of Common Stock registered hereunder with respect to the Incentive Plan are in addition to the shares of Common Stock registered on such registration statements.
The number of shares of Common Stock reserved and available for issuance under the ESPP is subject to an automatic annual increase on each January 1 by an amount equal to the least of (i) 1% of the number of shares of Common Stock issued and outstanding on the immediately preceding December 31, (ii) 62,500 shares of Common Stock or (iii) such number of shares of Common Stock as determined by the Administrator (as defined in the ESPP). Accordingly, on January 1, 2024, the number of shares of Common Stock reserved and available for issuance under the ESPP increased by 62,500. The additional shares are of the same class as other securities relating to the ESPP for which the Registrant’s registration statement filed on Form S-8 filed with the SEC on March 8, 2022 and August 8, 2019 (Registration Nos. 333-263358 and 333-233125), which, together with all exhibits filed therewith or incorporated therein by reference, are hereby incorporated by reference pursuant to General Instruction E to Form S-8 and the shares of Common Stock registered hereunder with respect to the ESPP are in addition to the shares of Common Stock registered on such registration statements
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information
The documents containing the information specified in Part I of this Registration Statement will be delivered to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). In accordance with the instructions to Part I of Form S-8, such documents are not being filed with the SEC either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. Such 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 Certain Documents by Reference
The following documents, which have previously been filed by the Registrant with the SEC pursuant to the Securities Act and pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference herein and shall be deemed to be a part hereof:
In addition, all documents subsequently filed by the Registrant with the SEC 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 indicate that all securities offered hereby have been sold or which deregisters all securities 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, 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 SEC will be incorporated by reference into, or otherwise included in, this Registration Statement.
Any statement, including financial statements, contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or therein 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.
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 its charter 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: (i) any breach of the director’s duty of loyalty to the Registrant or its stockholders; (ii) any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; (iii) any unlawful payments related to dividends or unlawful stock purchases, redemptions or other distributions; or (iv) any transaction from which the director derived an improper personal benefit.
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: (i) 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 (ii) 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.
The Registrant has entered into indemnification agreements with 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.
The Incentive Plan, Inducement Plan and Individual Inducement Award (collectively, the “Equity Plans”) provide that neither the board of directors of the Registrant nor the compensation committee (or other person acting as administrator of the Equity Plan), nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Equity Plans, and such individuals shall be entitled in all cases to indemnification and reimbursement by the Registrant in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Registrant’s articles or bylaws or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Registrant.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Number |
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Description |
4.1 |
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4.2 |
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5.1* |
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23.1* |
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Consent of Deloitte & Touche LLP, independent registered public accounting firm |
23.2* |
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Consent of Gibson, Dunn & Crutcher LLP (included in Exhibit 5.1) |
24.1* |
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Power of Attorney (included on the signature page to this Registration Statement) |
99.1 |
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99.2* |
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99.3* |
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Form of Dianthus Therapeutics, Inc. Inducement Stock Option Agreement |
99.4 |
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107.1* |
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* 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:
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 SEC by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act 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.
(h) 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 SEC 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 New York, State of New York, on March 21, 2024.
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DIANTHUS THERAPEUTICS, INC. |
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By: |
/s/ Ryan Savitz |
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Name: |
Ryan Savitz |
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Chief Financial Officer and Chief Business Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints each of Marino Garcia, Ryan Savitz and Adam Veness and each of them acting individually, as his or her true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution in each of them singly, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, granting to the attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite or necessary to be done in or about the premises, as full to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that the attorneys-in-fact and agents or any of each of them or their substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been signed by the following persons in the capacities indicated on the dates indicated.
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/s/ Marino Garcia |
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Chief Executive Officer, President and Director |
March 21, 2024 |
Marino Garcia |
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(Principal Executive Officer) |
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/s/ Ryan Savitz |
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Chief Financial Officer and Chief Business Officer |
March 21, 2024 |
Ryan Savitz |
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(Principal Financial Officer) |
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/s/ Edward Carr |
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Chief Accounting Officer |
March 21, 2024 |
Edward Carr |
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(Principal Accounting Officer) |
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/s/ Leon O. Moulder, Jr. |
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Director and Chair of the Board |
March 21, 2024 |
Leon O. Moulder, Jr. |
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/s/ Tomas Kiselak |
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Director |
March 21, 2024 |
Tomas Kiselak |
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/s/ Alison F. Lawton |
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Director |
March 21, 2024 |
Alison F. Lawton |
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/s/ Anne McGeorge |
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Director |
March 21, 2024 |
Anne McGeorge |
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/s/ Lei Meng |
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Director |
March 21, 2024 |
Lei Meng |
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/s/ Paula Soteropoulos |
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Director |
March 21, 2024 |
Paula Soteropoulos |
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/s/ Jonathan Violin |
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Director |
March 21, 2024 |
Jonathan Violin |
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Exhibit 5.1
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Gibson, Dunn & Crutcher LLP 2029 Century Park East Tel 310.552.8500 gibsondunn.com |
March 21, 2024
Dianthus Therapeutics, Inc.
7 Times Square, 43rdFloor
New York, NY 10036
Re: Dianthus Therapeutics, Inc.
Registration Statement on Form S-8
Ladies and Gentlemen:
We have examined the Registration Statement on Form S-8 (the “Registration Statement”), of Dianthus 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 (i) up to 592,707 shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”), issuable to eligible individuals under the Amended and Restated Dianthus Therapeutics, Inc. Stock Option and Incentive Plan (the “Incentive Plan”), (ii) up to 62,500 shares of Common Stock issuable to eligible individuals under the Dianthus Therapeutics, Inc. 2019 Employee Stock Purchase Plan (the “ESPP”), (iii) up to 300,000 shares of Common Stock issuable to eligible individuals under the Dianthus Therapeutics, Inc. Equity Inducement Plan (the “Inducement Plan”), (iv) up to 96,000 shares of Common Stock issuable pursuant to a Dianthus Therapeutics, Inc. Inducement Stock Option Agreement (the “Individual Inducement Award” and together with the Incentive Plan, the ESPP and the Inducement Plan, the “Plans”).
We have examined the Plans and the originals, or photostatic or certified copies, of such records of the Company and certificates of officers of the Company and of public officials and such other documents as we have deemed relevant and necessary as the basis for the opinions set forth below. We have also made such other investigations as we have deemed relevant and necessary or appropriate in connection with the opinion hereinafter set forth. In our examination, we have assumed 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. We have also assumed that there are no agreements or understandings between or among the Company and any participants in the Plans that would expand, modify or otherwise affect the terms of the Plans or the respective rights or obligations of the participants thereunder. Finally, we have assumed the accuracy of all other information provided to us by the Company during the course of our investigations, on which we have relied in issuing the opinion expressed below.
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.
Dianthus Therapeutics, Inc.
March 21, 2024
Page 2
Based upon the foregoing examination and in reliance thereon, and subject to the assumptions stated and in reliance on statements of fact contained in the documents that we have examined, we are of the opinion that the shares of Common Stock issuable under the Plans, when issued and sold in accordance with the terms of the Plans and against payment therefor, and when the Registration Statement has become effective under the Securities Act, 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 law 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. We express no opinion regarding any state securities laws or regulations.
We consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher, LLP
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 on Form S-8 of our report dated March 21, 2024 relating to the financial statements of Dianthus Therapeutics, Inc., appearing in the Annual Report on Form 10-K of Dianthus Therapeutics, Inc. for the year ended December 31, 2023.
/s/ Deloitte & Touche LLP
Morristown, New Jersey
March 21, 2024
Exhibit 99.2
DIANTHUS THERAPEUTICS, INC.
EQUITY INDUCEMENT PLAN
Dianthus Therapeutics, Inc., a Delaware corporation (the “Company”), hereby establishes an equity inducement plan known as the Dianthus Therapeutics, Inc. Equity Inducement Plan (the “Plan”) effective as of February 7, 2024 (the “Effective Date”). The purpose of the Plan is to advance the interests of the Company by providing for the grant to employees of the Company and its Subsidiaries of Awards as employment inducement awards pursuant to Nasdaq Rule 5635(c)(4) (or any successor rule or similar rule of any stock exchange on which the Stock is listed).
The following terms shall be defined as set forth below:
“Administrator” means (i) the independent members of the Board or (ii) the compensation committee of the Board or a similar committee performing the functions of the compensation committee and which is comprised solely of at least two Non-Employee Directors who are independent.
“Award” or “Awards,” except where referring to a particular category of grant under the Plan, shall include Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock Units, Restricted Stock Awards, Unrestricted Stock Awards and Dividend Equivalent Rights.
“Award Agreement” means a written or electronic document setting forth the terms and provisions applicable to an Award granted under the Plan. Each Award Agreement is subject to the terms and conditions of the Plan.
“Board” means the Board of Directors of the Company.
“Code” means the Internal Revenue Code of 1986, as amended, and any successor Code, and related rules, regulations and interpretations.
“Dividend Equivalent Right” means an Award entitling the Participant to receive credits based on cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other award to which it relates) if such shares had been issued to and held by the Participant.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“Fair Market Value” of the Stock on any given date means the fair market value of the Stock determined in good faith by the Administrator; provided, however, that if the Stock is admitted to quotation on the Nasdaq Global Market (“Nasdaq”) or another national securities exchange, the determination shall be made by reference to market quotations. If there are no market quotations for such date, the determination shall be made by reference to the last date preceding such date for which there are market quotations.
“Non-Employee Director” means a member of the Board who is not also an employee of the Company or any Subsidiary.
“Non-Qualified Stock Option” means any Stock Option that is not designated and qualified as an “incentive stock option” as defined in Section 422 of the Code.
“Participant” means any officer or employee of the Company or its Subsidiary to whom Awards have been granted from time to time by the Administrator and any authorized transferee of such individual.
“Restricted Shares” means the shares of Stock underlying a Restricted Stock Award that remain subject to a risk of forfeiture or the Company’s right of repurchase.
“Restricted Stock Award” means an Award of Restricted Shares subject to such restrictions and conditions as the Administrator may determine at the time of grant.
“Restricted Stock Units” means an Award of stock units subject to such restrictions and conditions as the Administrator may determine at the time of grant.
“Sale Event” shall mean (i) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or consolidation pursuant to which the holders of the Company’s outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction, (iii) the sale of all of the Stock of the Company to an unrelated person, entity or group thereof acting in concert, or (iv) any other transaction in which the owners of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company.
“Sale Price” means the value as determined by the Administrator of the consideration payable, or otherwise to be received by stockholders, per share of Stock pursuant to a Sale Event.
“Section 409A” means Section 409A of the Code and the regulations and other guidance promulgated thereunder.
“Service Relationship” means any relationship as an employee of the Company or any Subsidiary (e.g., a Service Relationship shall be deemed to continue without interruptions in the event an individual’s status changes from full-time employee to part-time employee or non-employee service provider).
“Stock” means the Common Stock, par value $0.001 per share, of the Company, subject to adjustments pursuant to Section 3.
“Stock Appreciation Right” means an Award entitling the recipient to receive shares of Stock having a value equal to the excess of the Fair Market Value of the Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.
“Stock Option” means any option to purchase shares of Stock granted pursuant to Section 5.
“Subsidiary” means any corporation or other entity (other than the Company) in which the Company has at least a 50% interest, either directly or indirectly.
“Unrestricted Stock Award” means an Award of shares of Stock free of any restrictions.
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All decisions and interpretations of the Administrator shall be binding on all persons, including the Company and Participants.
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Participants under the Plan will be such full or part-time officers and other employees of the Company and its Subsidiaries as are selected from time to time by the Administrator in its sole discretion; provided that in each case, the grant of the Award is made as a material inducement to the Participant’s commencement of employment with the Company or a Subsidiary.
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Payment instruments will be received subject to collection. The transfer to the optionee on the records of the Company or of the transfer agent of the shares of Stock to be purchased pursuant to the exercise of a Stock Option will be contingent upon receipt from the optionee (or a purchaser acting in his stead in accordance with the provisions of the Stock Option) by the Company of the full purchase price for such shares and the fulfillment of any other requirements contained in the Stock Option Award Agreement or applicable provisions of laws (including the satisfaction of any withholding taxes that the Company is obligated to withhold with respect to the optionee). In the event an optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the optionee upon the exercise of the Stock Option shall be net of the number of attested shares. In the event that the Company establishes, for itself or using the services of a third party, an automated system for the exercise of Stock Options, such as a system using an internet website or interactive voice response, then the paperless exercise of Stock Options may be permitted through the use of such an automated system.
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Grant or Sale of Unrestricted Stock. The Administrator may grant (or sell at par value or such higher purchase price determined by the Administrator) an Unrestricted Stock Award under the Plan. An Unrestricted Stock Award is an Award pursuant to which the Participant may receive shares of Stock free of any restrictions under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such Participant.
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To the extent that any Award is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional rules and requirements as specified by the Administrator from time to time in order to comply with Section 409A. In this regard, if any amount under a 409A Award is payable upon a “separation from service” (within the meaning of Section 409A) to a Participant who is then considered a “specified employee” (within the meaning of Section 409A), then no such payment shall be made prior to the date that is the earlier of (i) six months and one day after the Participant’s separation from service, or (ii) the Participant’s death, but only to the extent such delay is necessary to prevent such payment from being subject to interest, penalties and/or additional tax imposed pursuant to Section 409A. Further, the settlement of any such Award may not be accelerated except to the extent permitted by Section 409A.
With respect to the portion of any Award that has not been exercised and any payments in cash, Stock or other consideration not received by a Participant, a Participant shall have no rights greater than those of a general creditor of the Company unless the Administrator shall otherwise expressly determine in connection with any Award or Awards. In its sole discretion, the Administrator may authorize the creation of trusts or other arrangements to meet the Company’s obligations to deliver Stock or make payments with respect to Awards hereunder, provided that the existence of such trusts or other arrangements is consistent with the foregoing sentence.
9
This Plan shall become effective on the Effective Date. No grants of Awards may be made hereunder after
10
the 10th anniversary of Effective Date.
This Plan and all Awards and actions taken thereunder shall be governed by, and construed in accordance with, the laws of the State of Delaware applied without regard to conflict of law principles.
11
Exhibit 99.3
Dianthus Therapeutics, Inc. (the “Company”) hereby grants to the Optionee named below an option (the “Stock Option”) to purchase on or prior to the Expiration Date set forth below all or part of the number of shares of Common Stock, par value $0.001 per share, of the Company (the “Stock”) set forth below (the “Option Shares”) at the Exercise Price per Share set forth below subject to the terms and conditions set forth herein. The Stock Option is an inducement material to the Optionee’s entry into employment with the Company within the meaning of Nasdaq Listing Rule 5635(c)(4). The Stock Option is granted outside of the Amended and Restated Dianthus Therapeutics, Inc. Stock Option and Incentive Plan (the “Plan”), but shall be subject to the terms and conditions substantially identical to the terms and conditions set forth in the Plan as if the Stock Option were a non-qualified stock option granted under the Plan. Unless provided otherwise herein, the terms and conditions of the Plan applicable to an award of a non-qualified stock option granted under the Plan are incorporated herein by reference. Capitalized terms in this Stock Option Agreement (this “Agreement”) shall have the meanings specified in the Plan, unless a different meaning is specified herein.
Name of Optionee: |
|
Number of Shares of Stock Covered by the Stock Option: |
|
Exercise Price per Share: |
|
Grant Date: |
|
Expiration Date: |
|
Type of Stock Option: |
Non-Qualified Stock Option |
Vesting Commencement Date: |
|
Vesting Schedule: |
Subject to the Plan and this Agreement, the Stock Option shall vest and become exercisable as follows: (a) 25% of the shares subject to the Stock Option shall vest and become exercisable on the first anniversary of the Vesting Commencement Date (the “First Vesting Date”) and (b) the remainder of the shares subject to the Stock Option shall vest and become exercisable in equal monthly installments over the three-year period following the First Vesting Date (rounded down on each such vesting date to the nearest whole share except as to the last such date on which all then remaining unvested shares shall vest), in each case, provided the Optionee remains in a Service Relationship with the |
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|
Company or a Subsidiary through the applicable vesting date. |
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3/7
The Administrator’s determination of the reason for termination of the Optionee’s Service Relationship shall be conclusive and binding on the Optionee and his or her representatives.
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5/7
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed by its duly authorized officer.
DIANTHUS THERAPEUTICS, INC.
By: ____________________________________
Name:
Title:
The foregoing Agreement is hereby accepted and the terms and conditions thereof hereby agreed to by the undersigned. Electronic acceptance of this Agreement pursuant to the Company’s instructions to the Optionee (including through an online acceptance process) is acceptable.
Dated: _________________
__________________________________________
Optionee’s Signature
Optionee’s Name and Address:
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__________________________________________
__________________________________________
__________________________________________
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Exhibit 107.1
Calculation of Filing Fee Tables
Form S-8
(Form Type)
Dianthus 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 Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Equity |
Common stock, $0.001 par value per share |
Rule 457(a)(2) |
592,707(3) |
$27.51 |
$16,305,369.57 |
$147.60 per $1,000,000 |
$2,406.67 |
Equity |
Common stock, $0.001 par value per share |
Rule 457(a)(4) |
62,500(5) |
$23.38 |
$1,461,250.00 |
$147.60 per $1,000,000 |
$215.68 |
Equity |
Common stock, $0.001 par value per share |
Rule 457(a)(2) |
270,000(6) |
$27.51 |
$7,427,700.00 |
$147.60 per $1,000,000 |
$1,096.33 |
Equity |
Common stock, $0.001 par value per share |
Rule 457(a)(7) |
30,000(8) |
$25.75 |
$772,500.00 |
$147.60 per $1,000,000 |
$114.02 |
Equity |
Common stock, $0.001 par value per share |
Rule 457(a)(9) |
96,000(10) |
$11.27 |
$1,081,920.00 |
$147.60 per $1,000,000 |
$159.69 |
Total Offering Amounts |
|
$27,048,739.60 |
|
$3,992.39 |
|||
Total Fee Offsets |
|
|
|
— |
|||
Net Fee Due |
|
|
|
$3,992.39 |
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