As filed with the Securities and Exchange Commission
on August 12, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Apogee Therapeutics, Inc.
(Exact name of registrant as specified in its charter)
| Delaware |
88-0588063 |
(State or Other Jurisdiction of
Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650)
394-5230
(Address of Principal Executive Offices, Zip Code)
Non-Plan Stock Option Grant
(Full title of the plan)
Michael Henderson, M.D.
Chief Executive Officer
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650)
394-5230
(Name and address of agent for service)
Copies to:
|
Matthew Batters
Chief Legal Officer and Secretary
221 Crescent St., Building 17, Suite 102b
Waltham, MA 02453
(650) 394-5230 |
Ryan A. Murr
Branden C. Berns
Melanie E. Neary
Gibson, Dunn & Crutcher LLP
One Embarcadero Center, Suite 2600
San Francisco, CA 94111
(415) 393-8373 |
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
¨ |
Accelerated filer |
¨ |
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| Non-accelerated filer |
x |
Smaller reporting company |
x |
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Emerging growth company |
x |
EXPLANATORY NOTE
This Registration Statement on Form S-8 is filed by Apogee Therapeutics, Inc.
(the “Company” or the “Registrant”), relating to 100,000 shares of its common stock, par value $0.00001 per share
(the “Common Stock”), available for issuance pursuant to a currently outstanding nonqualified stock option award (the
“Non-Plan Grant”) granted to Mark McKenna outside of the 2023 Equity Incentive Plan (the “2023 Plan”), but subject
to terms and conditions substantially identical to the terms and conditions set forth in the 2023 Plan as if the Non-Plan Grant was a
nonqualified stock option granted under the 2023 Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified
in Part I of Form S-8 will be sent or given to employees as specified by Rule 428(b)(1). Such documents need not be filed
with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8,
taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation
of Documents by Reference. |
The following documents filed by the Registrant
with the Securities and Exchange Commission (the “Commission”), are incorporated by reference herein and shall be deemed
to be a part hereof:
1.
The Registrant’s Annual Report on Form 10-K for the fiscal year ended on December 31, 2023, filed on March 5,
2024;
2.
The Registrant’s Quarterly Reports on Form 10-Q for the fiscal quarters ended on March 31, 2024 and June 30,
2024, filed on May 13, 2024 and August 12, 2024, respectively;
3.
The Registrant’s Current Reports on Form 8-K filed on May 28, 2024, June 7, 2024 and August 12, 2024;
and
4.
The description of the Common Stock contained in Exhibit 4.3 of the Registrant’s Annual Report on Form 10-K for
the fiscal year ended on December 31, 2023, filed on March 5, 2024.
In addition, all documents filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof, but prior to the filing of a post-effective
amendment to this Registration Statement that indicates that all securities offered hereby have been sold or that deregisters all such
securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents. Notwithstanding the foregoing, unless specifically stated to the contrary in such filing,
none of the information that the Registrant discloses under Items 2.02 or 7.01 of any Current Report on Form 8-K that it may from
time to time furnish to the Commission will be incorporated by reference into, or otherwise be included in or deemed to be a part of,
this Registration Statement.
For purposes of this Registration Statement, any
document or any statement contained in a document incorporated or deemed to be incorporated herein by reference shall be deemed to be
modified or superseded to the extent that a subsequently filed document or a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated herein by reference modifies or supersedes such document or such statement in such
document. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this
Registration Statement. Subject to the foregoing, all information in this Registration Statement is so qualified in its entirety by the
information appearing in the documents incorporated herein by reference.
| Item 4. | Description
of Securities. |
Not applicable.
| Item 5. | Interests
of Named Experts and Counsel. |
Not applicable.
| Item 6. | Indemnification
of Directors and Officers. |
Registrant is a Delaware corporation. Section 145(a) of
the Delaware General Corporation Law (the “DGCL”) provides that a Delaware corporation may indemnify any person who was or
is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative, other than an action by or in the right of the corporation, by reason of the fact that such person is
or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including
attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with
such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed
to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his
or her conduct was unlawful.
Section 145(b) of the DGCL provides that
a Delaware corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that such person
acted in any of the capacities set forth above, against expenses (including attorneys’ fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in, or not opposed to, the best interests of the corporation, except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless
and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine, upon application,
that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
Further subsections of DGCL Section 145 provide
that:
| (1) | to the extent a present or former director or officer of a corporation
has been successful on the merits or otherwise in the defense of any action, suit or proceeding referred to in subsections (i) and
(ii) of Section 145 or in the defense of any claim, issue or matter therein, such person shall be indemnified against expenses,
including attorneys’ fees, actually and reasonably incurred by such person in connection therewith; |
| (2) | the indemnification and advancement of expenses provided for
pursuant to Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement
of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise; and |
| (3) | the corporation shall have the power to purchase and maintain
insurance of behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the
request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other
enterprise, against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such
person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under
Section 145. |
As used in this Item 6, the term “proceeding”
means any threatened, pending, or completed action, suit, or proceeding, whether or not by or in the right of Registrant, and whether
civil, criminal, administrative, investigative or otherwise.
Section 145 of the
DGCL makes provision for the indemnification of officers and directors in terms sufficiently broad to indemnify officers and directors
of the Company under certain circumstances from liabilities (including reimbursement for expenses incurred) arising under the Securities
Act. The Company’s organizational documents provide, in effect, that, to the fullest extent and under the circumstances permitted
by Section 145 of the DGCL, the Company will indemnify any and all of its officers and directors. The Company has entered into indemnification
agreements with its officers and directors. The Company may, in its discretion, similarly indemnify its employees and agents. The Company’s
Certificate of Incorporation also relieves the Company’s directors from monetary damages to the Company or its stockholders for
breach of such director’s fiduciary duty as a director to the fullest extent permitted by the DGCL. Under Section 102(b)(7) of
the DGCL, a corporation may relieve its directors from personal liability to such corporation or its stockholders for monetary damages
for any breach of their fiduciary duty as directors except (i) for a breach of the duty of loyalty, (ii) for failure to act
in good faith, (iii) for intentional misconduct or knowing violation of law, (iv) for willful or negligent violations of certain
provisions in the DGCL imposing certain requirements with respect to stock repurchases, redemptions and dividends or (v) for any
transactions from which the director derived an improper personal benefit.
The Company has purchased and expects to maintain
insurance policies that, within the limits and subject to the terms and conditions thereof, cover certain expenses and liabilities that
may be incurred by directors and officers in connection with proceedings that may be brought against them as a result of an act or omission
committed or suffered while acting as a director or officer of the Company.
| Item 7. | Exemption from Registration
Claimed. |
Not applicable.
| Exhibit No. | Exhibit Description |
*Filed herewith.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers
or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed
that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the
form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in
the effective registration statement; and
(iii) To include any material information
with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do
not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in the Registration Statement;
(2) That, for the purpose of determining any
liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) To remove from registration by means of
a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be
a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions,
or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to
a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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 Waltham, Commonwealth of Massachusetts, on this 12th day of August, 2024.
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Apogee Therapeutics, Inc. |
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By: |
/s/ Michael Henderson |
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Name: |
Michael Henderson, M.D. |
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Title: |
Director and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints Michael Henderson, M.D. and Matthew Batters, and each of them, his or her true
and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, for him or her and in his or her name,
place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to this Registration
Statement, and any registration statement relating to the offering covered by this Registration Statement and filed pursuant to Rule 462
under the Securities Act, and to file the same, with exhibits thereto and other documents in connection therewith, with the Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully so or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities
Act, the following persons have signed this Registration Statement in the capacities and on the date(s) indicated.
| Signature |
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Title |
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Date |
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| /s/ Michael Henderson |
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Director and Chief Executive |
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August 12, 2024 |
| Michael Henderson, M.D. |
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Officer (Principal Executive Officer) |
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| /s/ Jane Pritchett Henderson |
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Chief Financial Officer (Principal |
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August 12, 2024 |
| Jane Pritchett Henderson |
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Financial and Accounting Officer |
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| /s/ Mark C. McKenna |
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Chair and Director |
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August 12, 2024 |
| Mark C. McKenna |
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| /s/ Lisa L. Bollinger |
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Director |
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August 12, 2024 |
| Lisa L. Bollinger, M.D. |
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| /s/ Jennifer Fox |
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Director |
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August 12, 2024 |
| Jennifer Fox |
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| /s/ Andrew Gottesdiener |
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Director |
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August 12, 2024 |
| Andrew Gottesdiener, M.D. |
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| /s/ Peter Harwin |
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Director |
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August 12, 2024 |
| Peter Harwin |
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| /s/ William Jones, Jr. |
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Director |
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August 12, 2024 |
| William Jones, Jr. |
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| /s/ Tomas Kiselak |
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Director |
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August 12, 2024 |
| Tomas Kiselak |
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| /s/ Nimish Shah |
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Director |
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August 12, 2024 |
| Nimish Shah |
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Exhibit 5.1
August 12, 2024
Apogee Therapeutics, Inc.
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have examined
the Registration Statement on Form S-8 (the “Registration Statement”) of Apogee Therapeutics, Inc., a Delaware
corporation (the “Company”), to be filed with the Securities and Exchange Commission (the “Commission”) pursuant
to the Securities Act of 1933, as amended (the “Securities Act”), in connection with the offering by the Company of up to
100,000 shares (the “Shares”) of the Company’s Common Stock, par value $0.00001 per share, available for issuance pursuant
to a currently outstanding nonqualified stock option award granted to Mark McKenna outside of the Apogee Therapeutics, Inc. 2023
Equity Incentive Plan (the “Non-Plan Grant”).
In arriving at the opinion expressed below, we have examined originals,
or copies certified or otherwise identified to our satisfaction as being true and complete copies of the originals, of such documents,
corporate records, certificates of officers of the Company and of public officials and other instruments as we have deemed necessary
or advisable to enable us to render the opinion set forth below. In our examination, we have assumed without independent investigation
the genuineness of all signatures, the legal capacity and competency of all natural persons, the authenticity of all documents submitted
to us as originals and the conformity to original documents of all documents submitted to us as copies. As to any facts material to this
opinion, we have relied to the extent we deemed appropriate and without independent investigation upon statements and representations
of officers and other representatives of the Company and others. We have also assumed that there are no agreements or understandings
between or among the Company and Mr. McKenna that would expand, modify or otherwise affect the terms of the Non-Plan Grant or the
rights or obligations of the Mr. McKenna thereunder.
Based upon the foregoing, and subject to the assumptions, exceptions,
qualifications and limitations set forth herein, we are of the opinion that the Shares, when issued against payment therefor in accordance
with the terms set forth in the Non-Plan Grant, as set forth in the Registration Statement, will be validly issued, fully paid and non-assessable.
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the Delaware General Corporation Law (the “DGCL”). We are not admitted to practice in the State of
Delaware; however, we are generally familiar with the DGCL as currently in effect and have made such inquiries as we consider necessary
to render the opinions above. This opinion is limited to the effect of the current state of the DGCL and the facts as they currently
exist. We assume no obligation to revise or supplement this opinion in the event of future changes in such law or the interpretations
thereof or such facts.
Abu
Dhabi · Beijing
· Brussels
· Century
City · Dallas
· Denver
· Dubai
· Frankfurt
· Hong
Kong · Houston
· London
· Los
Angeles
Munich · New
York · Orange
County · Palo
Alto · Paris
· Riyadh
· San
Francisco · Singapore
· Washington,
D.C. |
We consent to the filing of this opinion as an exhibit to the Registration
Statement, and we further consent to the use of our name under the caption “Legal Matters” in the Registration Statement
and the prospectus that forms a part thereof. In giving these consents, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act or the Rules and Regulations of the Commission.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
Exhibit 23.1
Consent of Independent Registered Public
Accounting Firm
We consent to the incorporation by reference in this Registration
Statement (Form S-8) pertaining to the Non-Plan Stock Option Grant of our report dated March 5, 2024, with respect to the consolidated
financial statements of Apogee Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31,
2023, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
August 12, 2024
Exhibit 99.2
APOGEE THERAPEUTICS, INC.
NON-PLAN STOCK OPTION AGREEMENT
GRANT NOTICE FOR
NONQUALIFIED STOCK OPTIONS
FOR GOOD AND VALUABLE CONSIDERATION, Apogee Therapeutics,
Inc. (the “Company”), hereby grants to Participant named below the Nonqualified Stock Option (the “Option”)
to purchase any part or all of the number of shares of Common Stock that are covered by this Option at the Exercise Price per share, each
specified below, and upon the terms and subject to the conditions set forth in this Grant Notice and the Terms and Conditions (the “Terms
and Conditions”) attached hereto as Exhibit A. This Option is granted outside of the Apogee Therapeutics, Inc. 2023
Equity Incentive Plan (as amended from time to time, the “Plan”), but shall be subject to terms and conditions
substantially identical to the terms and conditions set forth in the Plan as if the Option were a Nonqualified Stock Option granted under
the Plan. This Option is not intended to qualify as an incentive stock option under Section 422 of the Code. Capitalized terms not otherwise
defined herein shall have the meaning set forth in the Plan.
| Name of Participant: |
Mark McKenna |
| Grant Date: |
August 17, 2023 |
| Number of Shares of Common Stock covered by Option: |
100,000 |
| Exercise Price Per Share: |
$23.60 |
| Expiration Date: |
August 17, 2033 |
| Stockholder Approval Contingency: |
No shares of Common Stock may be issued under this Option prior to approval of the issuance of shares of Common Stock pursuant to this Option by the Company’s stockholders. The issuance of shares pursuant to this Option will be submitted to the Company’s stockholders for approval at the next annual meeting of stockholders following the Grant Date. In the event that the issuance of shares of Common Stock pursuant to this Option is not approved by the Company’s stockholders prior to August 17, 2024, this Option will expire and be forfeited on that date and no shares of Common Stock will be issued pursuant to this Option. |
| Vesting Schedule: |
Subject to the Terms and Conditions, the Options shall vest monthly in thirty-six equal installments commencing on August 17, 2023, subject to Mr. McKenna’s continued service to the Company through each applicable vesting date. |
By accepting this Grant Notice, Participant acknowledges
that he or she has received and read, and agrees that this Option shall be subject to, the terms of this Grant Notice, the Plan, and the
Terms and Conditions.
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APOGEE THERAPEUTICS, INC. |
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By: |
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Name: |
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Title: |
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PARTICIPANT |
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Name: Mark McKenna |
Signature
Page to
Grant Notice
for
Nonqualified
Stock Options
EXHIBIT A
APOGEE THERAPEUTICS, INC.
NON-PLAN STOCK OPTION AGREEMENT
TERMS AND CONDITIONS FOR
NONQUALIFIED STOCK OPTIONS
These Terms and Conditions apply to the Option
granted pursuant to the Grant Notice to which these Terms and Conditions are attached (the “Grant Notice”).
Although the Option is granted outside of the Plan, the Option shall be subject to the terms of the Plan as if granted thereunder, which
terms are incorporated into these Terms and Conditions by this reference. Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Plan or the Grant Notice, as applicable.
Apogee Therapeutics, Inc. (the “Company”)
has granted to the Participant named in the Grant Notice provided to said Participant herewith a Nonqualified Stock Option (the “Option”)
to purchase up to the number of shares of Common Stock at an Exercise Price per share, each as set forth in the Grant Notice. The Option
is subject to the conditions set forth in the Grant Notice, these Terms and Conditions, and the Plan. For purposes of these Terms and
Conditions and the Grant Notice, any reference to the Company shall include a reference to any Subsidiary.
(a)
The Option shall not be exercisable as of the Grant Date set forth in the Grant Notice and shall not be exercisable prior
to approval of the issuance of shares of Common Stock pursuant to the Option by the Company’s stockholders (the “Stockholder
Approval Contingency”). After the Grant Date and satisfaction of the Stockholder Approval Contingency, to the extent not
previously exercised, and subject to termination or acceleration as provided in these Terms and Conditions and the Plan, the Option shall
be exercisable only to the extent it is or becomes vested, as described in the Grant Notice or the terms of the Plan, to purchase up to
that number of shares of Common Stock as set forth in the Grant Notice; provided, that (except as set forth in Section 3(a) below)
the Participant remains continuously providing services to the Company and does not experience a Termination of Employment.
(b)
To exercise the Option (or any part thereof), the Participant shall deliver to the Company a “Notice of Exercise”
in a form specified by the Committee, specifying the number of whole shares of Common Stock the Participant wishes to purchase and how
the Participant’s shares of Common Stock should be registered (in the Participant’s name only or in the Participant’s
and the Participant’s spouse’s names as community property or as joint tenants with right of survivorship).
(c)
The exercise price (the “Exercise Price”) of the Option is set forth in the Grant Notice. The
Company shall not be obligated to issue any shares of Common Stock until the Participant shall have paid the total Exercise Price for
that number of shares of Common Stock.
Exhibit
A
Terms and
Conditions for
Nonqualified
Stock Options
The Exercise Price may be paid in, cash, including
an irrevocable commitment by a broker to pay over such amount from a sale of the Common Stock issuable under the Option, or in such other
manners as may be permitted by the Committee.
(d)
Fractional shares may not be exercised. Shares of Common Stock will be issued as soon as practical after exercise. Notwithstanding
the above, the Company shall not be obligated to deliver any shares of Common Stock during any period when the Company determines that
the exercisability of the Option or the delivery of shares of Common Stock hereunder would violate Company policy or any federal, state
or other applicable laws.
The Option shall expire and cease to be exercisable
as of the earlier of (i) the Expiration Date set forth in the Grant Notice, (ii) the first anniversary of the Grant Date if the Stockholder
Approval Contingency is not satisfied prior to such date, or (iii) the date specified below in connection with the Participant’s
Termination of Employment:
(a)
If the Participant’s Termination of Employment is as a result of the Participant’s death or Disability, the
Participant may exercise any portion of the Option that is vested and exercisable at the time of such Termination of Employment until
the first anniversary of the Termination Date (as defined below).
(b)
If the Participant’s Termination of Employment is by the Company without Cause, in each case, on or within 12 months
following a Change in Control, subject to the Participant’s execution and nonrevocation of a general release of claims in a form
provided by the Company, (i) the entire Option shall be fully vested and (ii) the Participant may exercise any portion of the Option until
the date that is three months following the Termination Date.
(c)
If the Participant’s Termination of Employment is by the Company for Cause, the entire Option, whether or not then
vested and exercisable, shall be immediately forfeited and canceled as of the Termination Date.
(d)
If the Participant’s Termination of Employment is for any reason other than as set forth in Section 3(a), 3(b)
or 3(c), the Participant may exercise any portion of the Option that is vested and exercisable at the time of such Termination
of Employment until the date that is three months following the Termination Date.
(e)
Any portion of the Option that is not vested and exercisable at the time of a Termination of Employment (after taking into
account any accelerated vesting under this Section 3, Section 16 of the Plan or any other agreement between the Participant
and the Company) shall be forfeited and canceled as of the Termination Date.
(f)
As used in this Section 3, “Termination Date” means the date of the Participant’s
Termination of Employment.
| 4. | Restrictions
on Resales of Shares Acquired Pursuant to Option Exercise |
The Company may impose such restrictions, conditions
or limitations as it determines appropriate as to the timing and manner of any resales by the Participant or other subsequent transfers
by the Participant of any shares of Common Stock issued as a result of the exercise of the Option, including (a) restrictions under an
insider trading policy, (b) restrictions designed to delay and/or coordinate the timing and manner of sales by Participant and other option
holders and (c) restrictions as to the use of a specified brokerage firm for such resales or other transfers.
The Participant acknowledges that the ultimate
liability for all taxes legally due by the Participant is and remains the Participant’s responsibility. The Participant further
acknowledges that the Company (i) makes no representations or undertakings regarding the tax treatment in connection with any aspect of
the Option, including the grant, vesting or exercise of the Option, the subsequent sale of the Common Stock issuable under the Option;
and (ii) does not commit to, and are under no obligation to, structure the terms of the grant or any aspect of the Option to reduce or
eliminate the Participant’s tax liability or achieve any particular tax result.
| 6. | Non-Transferability
of Option |
Except as permitted by the Committee or as permitted
under the Plan, the Participant may not assign or transfer the Option to anyone other than by will or the laws of descent and distribution
and the Option shall be exercisable only by the Participant during his or her lifetime. The Company may cancel the Option if the Participant
attempts to assign or transfer it in a manner inconsistent with this Section 6.
| 7. | Other
Agreements Superseded |
The Grant Notice, these Terms and Conditions and
the Plan constitute the entire understanding between the Participant and the Company regarding the Option. Any prior agreements, commitments
or negotiations concerning the Option are superseded.
| 8. | Limitation
of Interest in Shares Subject to Option |
Neither the Participant (individually or as a
member of a group) nor any beneficiary or other person claiming under or through the Participant shall have any right, title, interest,
or privilege in or to any shares of Common Stock allocated or reserved for the purpose of the Plan or subject to the Grant Notice or these
Terms and Conditions except as to such shares of Common Stock, if any, as shall have been issued to such person upon exercise of the Option
or any part of it. Nothing in the Plan, in the Grant Notice, these Terms and Conditions or any other instrument executed pursuant to the
Plan shall confer upon the Participant any right to continue in the Company’s employ or service nor limit in any way the Company’s
right to terminate the Participant’s service at any time for any reason.
| 9. | No
Liability of Company |
The Company and any affiliate which is in existence
or hereafter comes into existence shall not be liable to the Participant or any other person as to: (a) the non-issuance or sale of shares
of Common Stock as to which the Company has been unable to obtain from any regulatory body having jurisdiction the authority deemed by
the Company’s counsel to be necessary to the lawful issuance and sale of any shares hereunder; and (b) any tax consequence
expected, but not realized, by the Participant or other person due to the receipt, exercise or settlement of any Option granted hereunder.
(a)
In the event that any provision of these Terms and Conditions is declared to be illegal, invalid or otherwise unenforceable
by a court of competent jurisdiction, such provision shall be reformed, if possible, to the extent necessary to render it legal, valid
and enforceable, or otherwise deleted, and the remainder of these Terms and Conditions shall not be affected except to the extent necessary
to reform or delete such illegal, invalid or unenforceable provision.
(b)
The headings preceding the text of the sections hereof are inserted solely for convenience of reference, and shall not constitute
a part of these Terms and Conditions, nor shall they affect its meaning, construction or effect. Words in the masculine gender shall include
the feminine gender, and where appropriate, the plural shall include the singular and the singular shall include the plural. The use herein
of the word “including” following any general statement, term or matter shall not be construed to limit such statement, term
or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting
language (such as “without limitation”, “but not limited to”, or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest possible scope
of such general statement, term or matter. References herein to any agreement, instrument or other document means such agreement, instrument
or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and not prohibited
by the Plan or these Terms and Conditions.
(c)
These Terms and Conditions shall inure to the benefit of and be binding upon the parties hereto and their respective permitted
heirs, beneficiaries, successors and assigns.
(d)
These Terms and Conditions shall be construed in accordance with and governed by the laws of the State of Delaware, without
regard to principles of conflicts of law.
(e)
In the event of any conflict between the Grant Notice, these Terms and Conditions and the Plan, the Grant Notice and these
Terms and Conditions shall control. In the event of any conflict between the Grant Notice and these Terms and Conditions, the Grant Notice
shall control.
(f)
All questions arising under the Plan or under these Terms and Conditions shall be decided by the Committee in its total
and absolute discretion.
The Option and any shares of Common Stock issued
upon exercise of the Option will be subject to recoupment in accordance with any clawback policy adopted by the Company. No recovery of
compensation under such a clawback policy will be an event giving rise to a right to resign for “good reason” or “constructive
termination” (or similar term) under any agreement with the Company. By accepting the Option, the Participant is agreeing to be
bound by any such clawback policy, as in effect or as may be adopted and/or modified from time to time by the Company in its discretion.
By executing the Grant Notice, the Participant
hereby consents to the delivery of information (including information required to be delivered to the Participant pursuant to applicable
securities laws) regarding the Company and the Subsidiaries, the Plan, the Option and the Common Stock via Company web site or other electronic
delivery.
Exhibit 107.1
Calculation of
Filing Fee Table
FORM S-8
(Form Type)
Apogee Therapeutics, Inc.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly
Registered Securities
| Security
Type |
Security
Class Title(1) |
Fee
Calculation Rule |
Amount
Registered |
Proposed
Maximum
Offering
Price Per Unit |
Maximum
Aggregate
Offering Price |
Fee
Rate |
Amount
of
Registration
Fee |
| Equity |
Common
stock, par value
$0.00001 per share |
Rule 457(a)(2) |
100,000(3) |
$41.43 |
$4,143,000.00 |
$147.60
per
$1,000,000 |
$611.51 |
| Total
Offering Amounts |
|
$4,143,000.00 |
|
$611.51 |
| Total
Fee Offsets |
|
|
|
— |
| Net
Fee Due |
|
|
|
$611.51 |
| (1) | Pursuant
to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities
Act”), this Registration Statement on Form S-8 shall be deemed to cover any additional
shares of common stock, par value $0.00001 per share (the “Common Stock”), of
Apogee Therapeutics, Inc. that may be issued pursuant to the Non-Plan Stock Option Grant
Notice and Award Agreement evidencing the Non-Plan Stock Option Grant to Mark McKenna (the
“Non-Plan Grant”) as a result of any stock dividend, stock split, recapitalization
or other similar transaction, and any other securities with respect to which the outstanding
shares are converted or exchanged. |
| (2) | Estimated
solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and
(h) of the Securities Act, and based on the average of the high and low sale prices
of the Common Stock, as quoted on the Nasdaq Stock Market, on August 5, 2024. |
| (3) | Represents
100,000 shares of Common Stock reserved for issuance pursuant to the Non-Plan Grant. |
Apogee Therapeutics (NASDAQ:APGE)
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Apogee Therapeutics (NASDAQ:APGE)
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