As filed with the Securities and Exchange Commission on November 14, 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
Terns Pharmaceuticals, Inc.
(Exact name of Registrant as specified in its charter)
Delaware |
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98-1448275 |
(State or other jurisdiction of |
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(I.R.S. Employer |
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1065 East Hillsdale Blvd., Suite 100 |
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94404 |
(Address of Principal Executive Offices) |
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(Zip Code) |
2022 Employment Inducement Award Plan
(Full Title of the Plan)
Mark Vignola
Chief Financial Officer
Terns Pharmaceuticals, Inc.
1065 East Hillsdale Blvd., Suite 100
Foster City, California 94404
(650) 525-5535
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Brian A. Johnson Wilmer Cutler Pickering Hale and Dorr LLP 7 World Trade Center 250 Greenwich Street New York, New York 10007 Telephone: (212) 230-8800 |
Copies to:
Bryan Yoon, Esq. Chief Operating Officer and General Counsel Terns Pharmaceuticals, Inc. 1065 East Hillsdale Blvd., Suite 100 Foster City, California 94404 (650) 525-5535 |
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 |
☒ |
Smaller reporting company |
☒ |
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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.
Proposed sale to take place as soon after the effective date of the
registration statement as awards under the plans are exercised and/or vest.
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering an additional 3,113,250 shares of the Registrant’s common stock issuable under the 2022 Employment Inducement Award Plan for which a Registration Statement of the Registrant on Form S-8 (File No. 333-268277) is effective.
INCORPORATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT ON
FORM S-8
Pursuant to Instruction E of Form S-8, the contents of the Registration Statement on Form S-8 filed with the Securities and Exchange Commission on November 9, 2022 (File No. 333-268277) are incorporated by reference herein.
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the SEC.
Item 8. Exhibits
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Incorporated by Reference |
Filed Herewith |
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Exhibit Number |
Exhibit Description |
Form |
Date |
Number |
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4.1 |
8-K |
2/9/2021 |
3.1 |
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4.2 |
8-K |
10/10/2023 |
3.1 |
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4.3 |
S-1/A |
2/1/2021 |
4.2 |
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5.1 |
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X |
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23.1 |
Consent of Ernst & Young LLP, independent registered public accounting firm. |
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X |
23.2 |
Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1). |
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X |
24.1 |
Power of Attorney. Reference is made to the signature page to the Registration Statement. |
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X |
99.1(a)# |
S-8 |
11/9/2022 |
99.1(a) |
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99.1(b)# |
S-8 |
11/9/2022 |
99.1(b) |
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99.1(c)# |
S-8 |
11/9/2022 |
99.1(c) |
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99.1(d)# |
10-Q |
11/14/2023 |
10.2# |
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107 |
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X |
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# Indicates management contract or compensatory plan.
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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 Foster City, State of California, on this 14th day of November, 2023.
Terns Pharmaceuticals, Inc. |
By: |
/s/ Mark Vignola |
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Mark Vignola, Ph.D |
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Chief Financial Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below does hereby constitute and appoint Erin Quirk, M.D., Mark Vignola, Ph.D. and Bryan Yoon, Esq., and each of them, with full power of substitution and full power to act without the other, as his or her true and lawful attorney-in-fact and agent to act for him or her 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 file this registration statement, 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 order to effectuate the same as fully, to all intents and purposes, as they or he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, 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 date indicated.
Signature |
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Title |
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Date |
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/s/ Erin Quirk |
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President |
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November 14, 2023 |
Erin Quirk, M.D. |
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(Principal Executive Officer) |
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/s/ Mark Vignola |
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Chief Financial Officer |
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November 14, 2023 |
Mark Vignola, Ph.D. |
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(Principal Financial and Accounting Officer) |
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/s/ David Fellows |
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Chairman of the Board of Directors |
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November 14, 2023 |
David Fellows |
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/s/ Carl Gordon |
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Director |
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November 14, 2023 |
Carl Gordon, Ph.D., C.F.A. |
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/s/ Jeffrey Kindler |
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Director |
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November 14, 2023 |
Jeffrey Kindler, Esq. |
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/s/ Hongbo Lu |
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Director |
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November 14, 2023 |
Hongbo Lu, Ph.D. |
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/s/ Jill Quigley |
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Director |
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November 14, 2023 |
Jill Quigley, Esq. |
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/s/ Ann Taylor |
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Director |
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November 14, 2023 |
Ann Taylor, M.D. |
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/s/ Radhika Tripuraneni |
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Director |
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November 14, 2023 |
Radhika Tripuraneni, M.D. |
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3
Exhibit 5.1
+1 212 230-8800 (t) +1 212 230 8888 (f) |
@wilmerhale.com
November 14, 2023
Terns Pharmaceuticals, Inc.
1065 East Hillsdale Blvd., Suite 100
Foster City, California 94404
Re: 2022 Employment Inducement Award Plan
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to 3,113,250 shares of common stock, $0.0001 par value per share (the “Shares”), of Terns Pharmaceuticals, Inc., a Delaware corporation (the “Company”), issuable under the Company’s 2022 Employment Inducement Award Plan, as amended (the “Plan”).
We have examined the Certificate of Incorporation and Bylaws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings and actions of the board of directors and stockholders of the Company, the Registration Statement, the Plan and such other documents relating to the Company as we have deemed material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.
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It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in 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/ Wilmer Cutler Pickering Hale and Dorr LLP
WILMER CUTLER PICKERING
HALE AND DORR LLP
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 2022 Employment Inducement Award Plan of Terns Pharmaceuticals, Inc. of our report dated March 27, 2023, with respect to the consolidated financial statements of Terns Pharmaceuticals, 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 Jose, California
November 14, 2023
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Exhibit 107
Calculation of Filing Fee Tables
Form S-8 |
(Form Type) |
Terns Pharmaceuticals, Inc. |
(Exact Name of Registrant as Specified in its Charter) |
Table 1—Newly Registered Securities
Security |
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Security Class |
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Fee |
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Amount |
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Proposed |
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Maximum |
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Fee Rate |
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Amount of |
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Equity |
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Common Stock, $0.0001 par value per share |
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457(c) and 457(h) |
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3,113,250 shares (3) |
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$4.21 |
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$13,106,782.50 |
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$147.60 per $1,000,000 |
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$1,934.56 |
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Total Offering Amounts |
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$13,106,782.50 |
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$1,934.56 |
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Total Fee Offsets |
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— |
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Net Fee Due |
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$1,934.56 |
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(1) |
Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s common stock that becomes issuable under the 2022 Employment Inducement Award Plan (the “2022 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that increases the number of the Registrant’s outstanding shares of common stock. |
(2) |
Pursuant to 457(c) and 457(h) under the Securities Act, the proposed maximum offering price per share is estimated solely for the purpose of calculating the registration fee and is based upon the average of the high and low prices of the Registrant’s common stock as reported on the Nasdaq Global Select Market on November 9, 2023, which date is within five business days prior to filing this Registration Statement. |
(3) |
Represents 3,113,250 additional shares of the Registrant’s common stock under the Registrant’s 2022 Plan as a result of an increase approved by the compensation committee of the Registrant’s board of directors.
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