UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM S-8 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

ACHIEVE LIFE SCIENCES, INC.

(Exact name of Registrant as specified in its charter)

 

 

 

 

 

Delaware

 

95-4343413

(State or other jurisdiction of

incorporation or organization)

 

(I.R.S. Employer

Identification Number)

1001 W. Broadway, Suite 400

Vancouver, BC

(604) 736-3678 

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

2018 Equity Incentive Plan

(Full title of the plans)

Richard Stewart

Chairman and Chief Executive Officer

Achieve Life Sciences, Inc.

1001 W. Broadway, Suite 400

Vancouver, BC

(604) 736-3678 

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

Please send copies of all communications to:

Alan Smith, Esq.

Robert Freedman, Esq.

Amanda Rose, Esq.

Fenwick & West LLP

1191 Second Avenue, Floor 10

Seattle, WA 98101

(206) 389-4510 

 

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. ☐

 

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

 

Title of Each Class of

Securities to be Registered

 

Amount

to be

Registered(1)

 

Proposed

Maximum

Offering Price

Per Unit

 

Proposed

Maximum

Aggregate

Offering Price

 

Amount of

Registration Fee

Common Stock, $0.001 par value

 

 

 

 

 

 

 

 

—To be issued under the 2018 Equity Incentive Plan

 

1,000,000

 

$2.18(2)

 

$2,180,000

 

$265

 

 

 

(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 the Registrant’s common stock that becomes issuable under the Registrant’s 2018 Equity Incentive 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)

Estimated solely for the purposes of calculating the registration fee in accordance with Rules 457(c) and (h) under the Securities Act, and based on the average of the high and low sale prices of Registrant’s Common Stock, as quoted on The Nasdaq Capital Market, on November 5, 2018.

 

 

 

 

PART I

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

The information called for by Part I of Form S-8 is omitted from this Registration Statement in accordance with Rule 428 of the Securities Act of 1933, as amended (the “ Securities Act ”) and the instructions to Form S-8. In accordance with the rules and regulations of the Securities and Exchange Commission (the “ Commission ”) and the instructions to Form S-8, such documents are not being filed with the Commission either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424.

 

 

 

I -1

 

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 pursuant to the Securities Act and the Securities Exchange Act of 1934, as amended (the “Exchange Act”) are incorporated herein by reference:

 

 

(a)

the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2017, filed with the Commission on March 1, 2018 pursuant to Section 13 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);

 

 

(b)

all other reports filed pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Registrant’s Annual Report referred to in (a) above; and

 

 

(c)

the description of the Registrant’s common stock contained in the Company’s Registration Statement on Form 8-A filed with the Commission on September 27, 1995, pursuant to Section 12(b) of the Exchange Act, including any other amendments or reports filed for the purpose of updating such description.

All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the filing of this Registration Statement and 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 a part hereof from the date of filing such documents, except as to specific sections of such documents as set forth therein. Any statement 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 in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such 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.

As permitted by the Delaware General Corporation Law, the Registrant’s certificate of incorporation eliminates the liability of directors to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent otherwise required by the Delaware General Corporation Law.

The certificate of incorporation further provides that the Registrant will indemnify any person who is or was made a party to any proceeding by reason of the fact that such person is or was a director or officer of the Registrant against expenses, judgments, fines, penalties and amounts paid in settlement incurred in connection therewith to the fullest extent authorized by the Delaware General Corporation Law. The Registrant’s bylaws provide for a similar indemnity to directors and officers of the Registrant to the fullest extent authorized by the Delaware General Corporation Law.

The Registrant’s bylaws authorize the Registrant’s board of directors to enter into indemnification contracts with each of its officers and directors. The Registrant has entered into indemnification contracts with each of its directors and executive officers. The indemnification contracts provide for the indemnification of directors and officers against all expenses, liability and loss actually reasonably incurred to the fullest extent permitted by the Registrant’s certificate of incorporation, bylaws and applicable law.

The Registrant’s bylaws also authorize the Registrant to maintain insurance to protect any director or officer against any expense, liability or loss, whether or not the Registrant would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. The Registrant maintains such insurance.

 

 

Item 7. Exemption From Registration Claimed.

Not applicable.

Item 8. Exhibits.

The following exhibits are filed herewith:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit
Number

 

 

 

Incorporated by Reference

 

 

Filed
Herewith

 

 

Exhibit Description

 

Form

 

 

File No.

 

 

Exhibit

 

 

Filing Date

 

 

 

 

 

 

 

 

 

4.1

 

Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.1

 

 

 

5/29/2013

 

 

 

 

 

 

 

 

 

 

 

 

4.2

 

Certificate of Amendment to Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.1

 

 

 

5/22/2015

 

 

 

 

 

 

 

 

 

 

 

 

4.3

 

Certificate of Amendment (Reverse Stock Split) to Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.1

 

 

 

8/2/2017

 

 

 

 

 

 

 

 

 

 

 

 

4.4

 

Certificate of Amendment (Name Change) to Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.2

 

 

 

8/2/2017

 

 

 

 

 

 

 

 

 

 

 

 

4.5

 

Certificate of Amendment (Removal of Cumulative Voting) to Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.1

 

 

 

11/1/2017

 

 

 

 

 

 

 

 

 

 

 

 

4.6

 

Certificate of Amendment (Reverse Stock Split) to Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.1

 

 

 

5/23/2018

 

 

 

 

 

 

 

 

 

 

 

 

4.7

 

Certificate of Amendment (Increase in Authorized Shares) to Second Amended and Restated Certificate of Incorporation

 

 

8-K

 

 

 

033-80623

 

 

 

3.2

 

 

 

5/23/2018

 

 

 

 

 

 

 

 

 

 

 

 

4.8

 

Sixth Amended and Restated Bylaws

 

 

8-K

 

 

 

033-80623

 

 

 

3.1

 

 

 

1/5/2017

 

 

 

 

 

 

 

 

 

 

 

 

4.9

 

Amendment (Virtual Meeting) to Sixth Amended and Restated Bylaws

 

 

10-Q

 

 

 

033-80623

 

 

 

3.1

 

 

 

11/7/2018

 

 

 

 

 

 

 

 

 

 

 

 

4.10

 

Form of Registrant’s Common Stock certificate

 

 

10-Q

 

 

 

000-21243

 

 

 

4.1

 

 

 

11/10/2008

 

 

 

 

 

 

 

 

 

 

 

 

5.1

 

Opinion of Fenwick & West LLP

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

23.1

 

Consent of Fenwick & West LLP (contained in Exhibit 5.1)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

23.2

 

Consent of PwC LLP, Independent Registered Public Accounting Firm

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

24.1

 

Power of Attorney (included on the signature page to this Registration Statement)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

X

 

 

 

 

 

 

 

 

99.1

 

2018 Equity Incentive Plan and forms of award agreements thereunder

 

 

10-Q

 

 

 

033-80623

 

 

 

10.1

 

 

 

11/7/2018

 

 

 

 

 

 

 

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:

(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 the 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 a 20 percent 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) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission 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.

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 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 hereby, 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 Vancouver, British Columbia, Canada, on this 7th day of November, 2018.

 

 

 

ACHIEVE LIFE SCIENCES, INC.

 

 

By:

 

/s/ Richard Stewart

 

 

Richard Stewart

Chief Executive Officer and Chairman

 

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS , that each person whose signature appears below hereby constitutes and appoints Richard Stewart and John Bencich, and each of them, as his or her true and lawful attorney-in-fact and agent with full power of substitution, for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement on Form S-8, and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute, 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 and on the date indicated.

 

 

 

 

 

 

Name

 

Title

 

Date

 

 

 

/s/ Richard Stewart

Richard Stewart

 

Chief Executive Officer, Chairman and Director

(Principal Executive Officer)

 

November 7, 2018

 

 

 

/s/ John Bencich

John Bencich

 

Chief Financial Officer

(Principal Financial and Accounting Officer)

 

November 7, 2018

 

 

 

/s/ Anthony Clarke

Anthony Clarke

 

Director

 

November 7, 2018

 

 

 

/s/ Scott Cormack

Scott Cormack

 

Director

 

November 7, 2018

 

 

 

/s/ Donald R. Joseph

Donald R. Joseph

 

Director

 

November 7, 2018

 

 

 

/s/ Martin Mattingly

Martin Mattingly

 

Director

 

November 7, 2018

 

 

 

/s/ Jay M. Moyes

Jay M. Moyes

 

Director

 

November 7, 2018

 

 

 

/s/ H. Stewart Parker

H. Stewart Parker

 

Director

 

November 7, 2018

 

 

 

 

EXHIBIT 5.1

November 7, 2018

 

Achieve Life Sciences, Inc.

1001 W. Broadway, Suite 400

Vancouver, BC V6H 4B1

 

Ladies and Gentlemen:

At your request, as your counsel, we have examined the Registration Statement on Form S-8 (the “ Registration Statement ”) to be filed by Achieve Life Sciences, Inc., a Delaware corporation (the “ Company ”) with the Securities and Exchange Commission (the “ Commission ”) on or about November 7, 2018 in connection with the registration under the Securities Act of 1933, as amended (the “ Securities Act ”), of an aggregate of 1,000,000 shares (the “ Shares ”) of the Company’s Common Stock (the “ Common Stock ”),  subject to issuance by the Company (a) upon the exercise or settlement of awards (including awards of stock options, restricted stock, stock bonuses, stock appreciation rights, restricted stock units and/or performance shares) to be granted under the Company’s 2018 Equity Incentive Plan (the “ Plan ”).

In connection with our opinion, we have examined such matters of fact as we have deemed necessary, which included examination of originals or copies of: the Company’s current Certificate of Incorporation and Bylaws, as amended (collectively, the “ Charter Documents ”), the Plan, the Registration Statement and the exhibits thereto; certain corporate proceedings of the Company’s Board of Directors (the “ Board ”) and the Company’s stockholders relating to adoption or approval of the Company Charter Documents, the Plan, the reservation of the Shares for sale and issuance, the filing of the Registration Statement and the registration of the Shares under the Securities Act and documents (including a certificate from the Company’s transfer agent) regarding the Company’s outstanding and reserved capital stock and other securities and such other documents as we have deemed advisable, and we have examined such questions of law as we have considered necessary.   

In our examination of documents for purposes of this opinion, we have assumed, and express no opinion as to, the authenticity and completeness of all documents submitted to us as originals, the genuineness of all signatures on documents reviewed by us, the conformity to originals and the completeness of all documents submitted to us as copies, the legal capacity of all parties executing any documents (other than the Company), the lack of any undisclosed termination or modification or waiver of any document, the absence of any extrinsic agreements or documents that might change or affect the interpretation or terms of documents, and the due authorization, execution and delivery of all documents by each party thereto other than the Company.  We have also assumed that any certificates or instruments representing the Shares, when issued, will be executed by the Company by officers of the Company duly authorized to do so.  In rendering our opinion, we have also relied upon a Certificate of Good Standing dated November 6, 2018 issued by the Delaware Secretary of State with respect to the Company and representations and certifications made to us by the Company, including without limitation representations in a Management Certificate addressed to us that the Company has available a sufficient number of

A9053/00000/DOCS/847567.1

 

 

authorized shares of Common Stock that are not currently outstanding or reserved for issuance under other outstanding securities or plans of the Company, to enable the Company to issue and deliver all of the Shares as of the date of this letter.

We render this opinion only with respect to, and we express no opinion herein concerning the application or effect of the laws of any jurisdiction other than, the existing Delaware General Corporation Law now in effect.    We express no opinion with respect to the securities or “blue sky” laws of any state.   

Based upon, and subject to, the foregoing, it is our opinion that when the 1,000,000 Shares of Common Stock that may be issued and sold by the Company upon the exercise or settlement of awards (including any stock option, restricted stock, stock bonus, stock appreciation right, restricted stock unit or award of performance shares) to be granted under the Plan have been issued and sold by the Company against the Company’s receipt of payment therefor (in an amount and type of consideration not less than the par value per Share) in accordance with the terms (including without limitation payment and authorization provisions) of the Plan and have been duly registered on the books of the transfer agent and registrar for the Shares in the name or on behalf of the holders thereof, such Shares will be validly issued, fully paid and non-assessable.

We consent to the use of this opinion as an exhibit to the Registration Statement and further consent to all references to us, if any, in the Registration Statement, the prospectuses constituting a part thereof and any amendments thereto.  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 thereunder .   This opinion is intended solely for use in connection with issuance and sale of the Shares subject to the Registration Statement and is not to be relied upon for any other purpose.  In providing this letter, we are opining only as to the specific legal issues expressly set forth above, and no opinion shall be inferred as to any other matter or matters.    This opinion is rendered on, and speaks only as of, the date of this letter first written above, and does not address any potential change in facts or law that may occur after the date of this opinion letter.  We assume no obligation to advise you of any fact, circumstance, event or change in the law or the facts that may hereafter be brought to our attention, whether or not such occurrence would affect or modify any of the opinions expressed herein.

Very truly yours,

/s/ Fenwick & West LLP

FENWICK & WEST LLP

 

 

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this registration statement on Form S-8 pertaining to the 2018 Equity Incentive Plan of Achieve Life Sciences, Inc. of our report dated March 1, 2018 relating to the consolidated financial statements, which appears in Achieve Life Sciences, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2017.

 


/s/ PricewaterhouseCoopers LLP

Chartered Professional Accountants
Vancouver, Canada

November 7, 2018