Arcutis Biotherapeutics (ARQT) S-8 Registration of securities for employees

As filed with the Securities and Exchange Commission on February 28, 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

ARCUTIS BIOTHERAPEUTICS, INC.

(Exact Name of Registrant as Specified in its Charter)

Delaware	81-2974255
(State or Other Jurisdiction of Incorporation or Organization)	(I.R.S. Employer Identification No.)

3027 Townsgate Road, Suite 300

Westlake Village, California 91361

(Address of Principal Executive Offices) (Zip Code)

2020 Equity Incentive Plan

2020 Employee Stock Purchase Plan

2022 Employment Inducement Incentive Plan

(Full Title of the Plans)

Todd Franklin Watanabe

President and Chief Executive Officer

Arcutis Biotherapeutics, Inc.

3027 Townsgate Road, Suite 300

Westlake Village, California 91361

(805) 418-5006

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

Copies to:

J. Ross McAloon

Latham & Watkins LLP

140 Scott Drive

Menlo Park, California 94025

(650) 328-4600

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. (Check   one):

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

This Registration Statement is being filed by Arcutis Biotherapeutics, Inc. (the “Company” or the “Registrant”) with the Securities and Exchange Commission (the “Commission”) for the purpose of registering an additional 3,052,612 shares of the Company’s common stock, $0.0001 par value per share (the “common stock”), issuable under the following employee benefit plans for which registration statements on Form S-8 (File Nos. 333-236178, 333-253155 and 333-262902) are effective: (i) the Arcutis Biotherapeutics, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) which, as a result of the operation of an automatic annual increase provision therein, added 2,442,090 shares of common stock, and (ii) the Arcutis Biotherapeutics, Inc. 2020 Employee Stock Purchase Plan (the “2020 ESPP”) which, as a result of the operation of an automatic annual increase provision therein, added 610,522 shares of common stock.

This Registration Statement is also being filed with the Commission for the purpose of registering an additional 1,500,000 shares of common stock issuable under the Arcutis Biotherapeutics, Inc. 2022 Employment Inducement Incentive Plan (the “2022 EIP”), for which a registration statement on Form S-8 (File No. 333-262902) is effective. The 2022 EIP provides for the grant of equity-based awards in the form of non-qualified stock options, restricted stock awards, restricted stock unit awards, dividend equivalent awards, and other stock-based awards.

INFORMATION BY REFERENCE OF CONTENTS OF REGISTRATION STATEMENT ON FORM S-8

The contents of the registration statements on Form S-8 (File Nos. 333-236178, 333-253155 and 333-262902) are incorporated into this Registration Statement by reference to the extent not modified or superseded hereby or by any subsequently filed document, which is incorporated by reference herein or therein.

Item 8. Exhibits

		Incorporated by Reference
Exhibit Number	Description	Form	Exhibit	Date Filed	File Number	Filed Herewith
4.1	Restated Certificate of Incorporation	10-Q	3.1	5/12/20	001-39186
4.2	Restated Bylaws	10-Q	3.2	5/12/20	001-39186
4.3	Form of Common Stock Certificate.	S-1/A	4.1	1/21/20	333-235806
5.1	Opinion of Latham & Watkins LLP.					X
23.1	Consent of Latham & Watkins LLP (included in Exhibit 5.1).					X
23.2	Consent of Independent Registered Public Accounting Firm.					X
24.1	Power of Attorney (included in the signature page to this Registration Statement).					X
99.1#	Arcutis Biotherapeutics, Inc. 2020 Equity Incentive Plan and form of award agreements thereunder.	S-1/A	10.3	1/21/20	333-235806
99.2#	Arcutis Biotherapeutics, Inc. 2020 Employee Stock Purchase Plan and form of award agreements thereunder.	S-1/A	10.4	1/21/20	333-235806
99.3	Arcutis Biotherapeutics, Inc. 2022 Employment Inducement Incentive Plan and form of award agreements thereunder.	10-K	10.5	2/22/22	001-39186
107	Filing Fee Table.					X

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 Westlake Village, state of California, on February 28, 2023.

ARCUTIS BIOTHERAPEUTICS, INC.
By:	/s/ Todd Franklin Watanabe
Name:	Todd Franklin Watanabe
Title:	President and Chief Executive Officer

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Todd Franklin Watanabe and Scott L. Burrows, 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 of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.

Signature	Title	Date
/s/ Todd Franklin Watanabe	President, Chief Executive Officer and Director (Principal Executive Officer)	February 28, 2023
Todd Franklin Watanabe
/s/ Scott L. Burrows	Chief Financial Officer (Principal Accounting and Financial Officer)	February 28, 2023
Scott L. Burrows
/s/ Patrick J. Heron	Director	February 28, 2023
Patrick J. Heron
/s/ Bhaskar Chaudhuri	Director	February 28, 2023
Bhaskar Chaudhuri
/s/ Terrie Curran	Director	February 28, 2023
Terrie Curran
/s/ Halley E. Gilbert	Director	February 28, 2023
Halley E. Gilbert
/s/ Neha Krishnamohan	Director	February 28, 2023
Neha Krishnamohan
/s/ Keith R. Leonard Jr.	Director	February 28, 2023
Keith R. Leonard Jr.
/s/ Sue-Jean Lin	Director	February 28, 2023
Sue-Jean Lin
/s/ Joseph Turner	Director	February 28, 2023
Joseph Turner
/s/ Howard G. Welgus, M.D.	Director	February 28, 2023
Howard G. Welgus, M.D.