As filed with the Securities and Exchange Commission on March 28, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Eton Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware | 37-1858472 | |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |
21925 W. Field Parkway, Suite 235 Deer Park, Illinois | 60010 | |
(Address of Principal Executive Offices) | (Zip Code) |
2018 Equity Incentive Plan
2018 Employee Stock Purchase Plan
(Full titles of the plans)
Sean E. Brynjelsen
President and Chief Executive Officer
Eton Pharmaceuticals, Inc.
21925 W. Field Parkway, Suite 235
Deer Park, Illinois 60010
(847) 787-7361
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
Sean M. Clayton, Esq. James C. Pennington, Esq. Cooley LLP 4401 Eastgate Mall San Diego, California 92121 Tel: (858) 550-6000 | Sean E. Brynjelsen President and Chief Executive Officer Eton Pharmaceuticals, Inc. 21925 W. Field Parkway, Suite 235 Deer Park, Illinois 60010 (847) 787-7361 |
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer | [ ] | Accelerated filer | [ ] | |
Non-accelerated filer | [X] | Smaller reporting company | [X] | |
Emerging growth company | [X] |
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. [X]
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share(2) | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||||||||||
2018 Equity Incentive Plan Common Stock, $0.001 par value per share | 704,317 | (3) | $ | 7.55 | $ | 5,317,593.35 | $ | 644.50 | ||||||||
2018 Employee Stock Purchase Plan Common Stock, $0.001 par value per share | 150,000 | (4) | $ | 7.55 | $ | 1,132,500.00 | $ | 137.26 | ||||||||
Total | 854,317 | $ | 6,450,093.35 | $ | 781.76 |
(1) | Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock (“Common Stock”) of Eton Pharmaceuticals, Inc. (the “Registrant”) that become issuable under the Registrant’s 2018 Equity Incentive Plan (the “2018 Plan”), or the Registrant’s 2018 Employee Stock Purchase Plan (the “2018 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction. |
(2) | This estimate is made pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee, and is based on the average of the high and low prices of the Common Stock as reported on the Nasdaq Global Market for March 27, 2019. |
(3) | Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 Plan on January 1, 2019 pursuant to an “evergreen” provision contained in the 2018 Plan. Pursuant to such provision, on January 1st of each calendar year, from January 1, 2019 through January 1, 2028, the number of shares added each year is equal to the lesser of: (a) 4% of the total number of shares of capital stock of the Registrant outstanding on December 31 of the preceding calendar year; or (b) such lesser number of shares of Common Stock as is determined by the Registrant’s Board of Directors (the “Board”) for the applicable year. |
(4) | Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 ESPP on January 1, 2019 pursuant to an “evergreen” provision contained in the 2018 ESPP. Pursuant to such provision, on January 1st of each calendar year, from January 1, 2019 through January 1, 2027, the number of shares of Common Stock added each year is equal to the lesser of: (a) 1% of the total number of shares of capital stock outstanding on December 31 of the preceding calendar year; (b) 150,000 shares; or (c) a lesser number of shares of Common Stock as is determined by the Board that is less than (a) and (b). |
INCORPORATION OF DOCUMENTS BY REFERENCE
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plan is effective.
The Registrant previously registered shares of its Common Stock for issuance under the 2018 Plan and 2018 ESPP under a Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the “Commission”) on November 20, 2018 (File No. 333-228493). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statement referenced above.
Item 8. Exhibits.
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 Deer Park, State of Illinois, on March 28, 2019.
Eton Pharmaceuticals, Inc. | ||
By: | /s/ Sean E. Brynjelsen | |
Sean E. Brynjelsen | ||
President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sean E. Brynjelsen and W. Wilson Troutman, and each of them, as his true and lawful attorneys-in-fact and agents, each with the full power of substitution, for him and in his name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
Signature | Title | Date | ||
/s/Sean E. Brynjelsen | President, Chief Executive Officer and Member of the Board of Directors (Principal Executive Officer) | March 28, 2019 | ||
Sean E. Brynjelsen | ||||
/s/W. Wilson Troutman | Chief Financial Officer, Treasurer and Secretary (Principal Financial and Accounting Officer) | March 28, 2019 | ||
W. Wilson Troutman | ||||
/s/Mark L. Baum | Member of the Board of Directors | March 28, 2019 | ||
Mark L. Baum | ||||
/s/Charles J. Casamento | Member of the Board of Directors | March 28, 2019 | ||
Charles J. Casamento | ||||
/s/Paul V. Maier | Member of the Board of Directors | March 28, 2019 | ||
Paul V. Maier | ||||
/s/Norbert G. Riedel | Member of the Board of Directors | March 28, 2019 | ||
Norbert G. Riedel, Ph.D. |