As filed with the Securities and Exchange Commission on March 20, 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
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:
Geoffrey R. Morgan, Esq. Croke Fairchild Duarte & Beres LLC 180 N. LaSalle St., Suite 3400 Chicago, Illinois 60601 Tel: (312) 768-4700 |
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 | ☒ | Smaller reporting company | ☒ | |
| Emerging growth company | ☒ |
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☒
EXPLANATORY NOTE
Eton Pharmaceuticals, Inc. (the “Registrant”) has prepared this registration statement (this “Registration Statement”) in accordance with the requirements of Form S-8 under the Securities Act to register 3,686,775 additional shares of Common Stock reserved for issuance under the Eton Pharmaceuticals, Inc. 2018 Equity Incentive Plan (the “2018 Plan”) and 600,000 additional shares of Common Stock reserved for issuance under the Eton Pharmaceuticals, Inc. 2018 Employee Stock Purchase Plan (the “2018 ESPP”).
Pursuant to the Registration Statements on Form S-8 (File Nos. 333-228493 and 333-230572) filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on November 20, 2018 and March 28, 2019 (the “Prior Registration Statements”), the Registrant previously registered an aggregate of 2,985,337 shares of Common Stock under the 2018 Plan and an aggregate of 300,000 shares of Common Stock under the 2018 ESPP.
In accordance with General Instruction E to Form S-8, the contents of the Prior Registration Statements are hereby incorporated by reference.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information specified in Item 1 and Item 2 of Form S-8 is omitted from this Registration Statement in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”) and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under 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 Commission are hereby incorporated by reference into this Registration Statement:
| (a) | The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022, filed with the Commission on March 16, 2023; |
| (b) | The Registrant’s Current Reports on Form 8-K filed with the Commission on January 11, 2023 (other than with respect to Item 2.02 and Exhibit 99.1 thereof); March 1, 2023, March 13, 2023, March 15, 2023 and March 16, 2023; and |
| (c) | The description of the Common Stock set forth in the Registrant’s Registration Statement on Form 8-A12B (File No. 001-38738), filed with the Commission on November 8, 2018, including any amendments or reports filed for the purpose of updating such description. |
All other reports and other documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be part of this Registration Statement from the date of the filing of such reports and documents, except as to any portion of any future annual or quarterly report to stockholders or document or current report furnished under Items 2.02 or 7.01 of Form 8-K that is not deemed filed under such provisions.
For purposes of this Registration Statement, any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded to the extent that a statement contained herein or in any other subsequently filed document that 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.
You should rely only on the information provided or incorporated by reference in this Registration Statement or any related prospectus. The Registrant has not authorized anyone to provide you with different information. You should not assume that the information in this Registration Statement or any related prospectus is accurate as of any date other than the date on the front of the document.
You may contact the Registrant in writing or orally to request copies of the above-referenced filings, without charge (excluding exhibits to such documents unless such exhibits are specifically incorporated by reference into the information incorporated into this Registration Statement). Requests for such information should be directed to:
Eton Pharmaceuticals, Inc.
21925 W. Field Parkway, Suite 235
Deer Park, Illinois 60010
(847) 787-7361
Attn: Chief Executive Officer
Item 8. EXHIBITS.
*Filed herewith
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 Deer Park, State of Illinois, on March 20, 2023.
| Eton Pharmaceuticals, Inc. | ||
| By: | /s/ Sean E. Brynjelsen | |
| Sean E. Brynjelsen | ||
| President and Chief Executive Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Sean E. Brynjelsen and James R. Gruber, and each or any one of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him or her and in his or her name, place or stead, 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 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 connection therewith, as fully to all intents and purposes as 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, 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 Director (Principal Executive Officer) |
March 20, 2023 | ||
| Sean E. Brynjelsen | ||||
| /s/ James R. Gruber | Chief Financial Officer (Principal Financial and Accounting Officer) |
March 20, 2023 | ||
| James R. Gruber | ||||
| /s/ Jennifer M. Adams | Director | March 20, 2023 | ||
| Jennifer M. Adams | ||||
| /s/ Charles J. Casamento | Director | March 20, 2023 | ||
| Charles J. Casamento | ||||
| /s/ Paul V. Maier | Director | March 20, 2023 | ||
| Paul V. Maier | ||||
| /s/ Norbert G. Riedel | Director | March 20, 2023 | ||
| Norbert G. Riedel, Ph.D. |
Exhibit 5.1
Croke Fairchild Duarte & Beres LLC
180 North La Salle Street, Suite 3400
Chicago, Illinois 60601
March 20, 2023
Eton Pharmaceuticals, Inc.
21925 W. Field Parkway, Suite 235
Deer Park, Illinois 60010
Ladies and Gentlemen:
You have requested our opinion, as counsel to Eton Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission covering the offering of up to (i) 3,686,775 shares (the “2018 Plan Shares”) of the Company’s Common Stock, par value $0.001 per share (the “Common Stock”), pursuant to the Company’s 2018 Equity Incentive Plan (the “2018 Plan”), and (ii) 600,000 shares of common stock (together with the 2018 Plan Shares, the “Shares”) issuable pursuant to the Company’s 2018 Employee Stock Purchase Plan (together with the 2018 Plan, the “Plans”).
In connection with this opinion, we have examined and relied upon (a) the Registration Statement and the related prospectuses, (b) the Company’s Amended and Restated Certificate of Incorporation and the Company’s Amended and Restated Bylaws, each as currently in effect, (c) the Plans, and (d) the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents by all persons other than the Company where authorization, execution and delivery are prerequisites to the effectiveness of such documents. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought independently to verify such matters.
Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion as to whether the laws of any particular jurisdiction other than those identified above are applicable to the subject matter of this opinion. We are not rendering any opinion as to compliance with any federal or state law, rule or regulation relating to securities, or to the sale or issuance thereof.
On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and the related prospectuses, will be validly issued, fully paid and nonassessable.
We consent to the filing of this opinion as an exhibit to the Registration Statement.
Sincerely,
/s/ Croke Fairchild Duarte & Beres LLC
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Eton Pharmaceuticals, Inc. of our report dated March 16, 2023, relating to the financial statements of Eton Pharmaceuticals, Inc. as of December 31, 2022 and 2021 and for each of the three years in the period ended December 31, 2022 appearing in the Annual Report on Form 10-K of Eton Pharmaceuticals, Inc. for the year ended December 31, 2022.
/s/ KMJ Corbin & Company LLP
Irvine,
California
March 20, 2023
Exhibit 107
Calculation of Filing Fee Table
S-8
(Form Type)
Eton Pharmaceuticals, 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 (2) | Maximum Aggregate Offering Price (2) | Fee Rate | Amount of Registration Fee | |||||||||||||||||||
| Equity | Common Stock, par value $0.001 per share, Eton Pharmaceuticals, Inc. 2018 Equity Incentive Plan | 457 | (h) | 3,686,775 | (3) | $ | 3.89 | $ | 14,341,554.75 | 0.00011020 | $ | 1,580.44 | ||||||||||||||
| Equity | Common Stock, par value $0.001 per share, Eton Pharmaceuticals, Inc. 2018 Employee Stock Purchase Plan | 457 | (h) | 600,000 | (4) | $ | 3.89 | $ | 2,334,000 | 0.00011020 | $ | 257.21 | ||||||||||||||
| Total Offering Amounts | $ | 16,675,557.75 | — | $ | 1,837.65 | |||||||||||||||||||||
| Total Fees Previously Paid | — | — | — | |||||||||||||||||||||||
| Total Fee Offsets | — | — | — | |||||||||||||||||||||||
| Net Fee Due | — | — | $ | 1,837.65 | ||||||||||||||||||||||
| (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 (“Common Stock”) that become issuable under the Eton Pharmaceuticals, Inc. 2018 Equity Incentive Plan (the “2018 Plan”) or the Eton Pharmaceuticals, Inc. 2018 Employee Stock Purchase Plan (the “2018 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without receipt of consideration that increases the number of the Registrant’s outstanding shares of Common Stock. | |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457(c) and Rule 457(h) of the Securities Act. The proposed maximum offering price per share and the proposed maximum aggregate offering price with respect to the shares are calculated based on $3.89 per share, the average of the high and low prices of the Common Stock, as reported on the Nasdaq Global Market on March 17, 2023, a date within five business days prior to the filing of this Registration Statement. | |
| (3) | Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 Plan on January 1, 2023 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, 2023 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). |