Registration No. 333-_______

 

As filed with the United States Securities and Exchange Commission on June 22, 2015

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

______________

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

__________________

 

CAPSTONE THERAPEUTICS CORP.

(Exact name of registrant as specified in its charter)

 

Delaware	86-0585310
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)
1275 W. Washington Street,  Suite 104, Tempe, Arizona (Address of Principal Executive Offices)	85281 (Zip Code)

__________________

 

CAPSTONE THERAPEUTICS CORP.

2015 EQUITY Incentive COMPENSATION plan

(Full title of the plan)

___________________

 

JOHN M. HOLLIMAN, III Executive Chairman Capstone Therapeutics Corp. 1275 W. Washington Street, Suite 104 Tempe, Arizona 85281	Copy to: STEVEN P. EMERICK Quarles & Brady LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004
(Name and address of agent for service)   (602) 286-5520

(Telephone number, including area code, of agent for service)

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer  [_]		Accelerated filer  [_]
Non-accelerated filer [_]		Smaller reporting company [X]
(Do not check if a smaller reporting company)

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered	Amount to be Registered (2) (3)	Proposed Maximum Offering Price Per Share	Proposed Maximum Aggregate Offering Price	Amount of Registration Fee
Common Stock, $0.0005 par value per share (1) (3)	1,000,000 shares	$ ..225 (4)	$225,000 (4)	$26.15 (4)

 

(1)

The securities to be registered include options to acquire Common Stock.

 

(2)

This Registration Statement covers the 1,000,000 shares available for grant under the Capstone Therapeutics Corp. 2015 Equity Incentive Plan (the “2015 Plan”) authorized by stockholders at the 2015 Annual Meeting of Stockholders. This Registration Statement shall also cover any additional shares of Common Stock which become issuable under the 2015 Plan by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of the Registrant’s Common Stock.

 

(3)

Pursuant to the Tax Benefit Preservation Plan (“Benefit Plan”), dated as of June 24, 2014, between the Company and Computershare Inc., each share of common stock has an attached right that entitles the registered holder to purchase from the Company one one-hundredth of a share of Series A Preferred Stock, par value $0.0005 per share (the “Preferred Shares”), of the Company at an exercise price of $5.00 per one-hundredth of a Preferred Share, subject to adjustment, on the terms set forth in the Benefit Plan. At June 19, 2015, the rights are not exercisable and trade only with shares of the Company’s common stock.

 

(4)

Pursuant to Rule 457(h), estimated solely for the purpose of computing the registration fee, based upon $.225 as the average of the high and low sales prices of the Registrant’s Common Stock on the OTCQB on June 19, 2015, for the 1,000,000 shares issuable under the 2015 Plan.

 

PART I

 

Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or given to 2015 Plan participants as specified by Rule 428(b)(1) under the Securities Act of 1933, as amended.

 

PART II

 

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.  Incorporation of Documents by Reference.

 

The following documents filed with the Commission by Capstone Therapeutics Corp. (the “Registrant”) (Commission File No. 000-21214) pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended, are incorporated herein by reference:

 

(a)

The Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on March 16, 2015;

 

(b)

The Registrant's Quarterly Report on Form 10-Q for the quarter ended March 31, 2014;

 

(c)

The Registrant’s Current Report on Form 8-K dated March 26, 2015; and

 

(d)

The description of the Registrant’s Common Stock in the Third Amendment to its Registration Statement on Form 8-A/A filed with the Commission on June 9, 2011, and any amendment or report updating that description.

 

All documents subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, 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 herein and to be a part hereof from the date of the filing of such documents.

 

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 hereof to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part hereof.

 

Item 4. Description of Securities.

 

Not applicable.

 

Item 5. Interests of Named Experts and Counsel.

 

None.

 

Item 6.  Indemnification of Directors and Officers.

 

The Company is incorporated under the laws of the State of Delaware. Section 102(b)(7) of the Delaware General Corporation Law (“DGCL”) allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Company’s amended and restated certificate of incorporation provides for this limitation of liability.

 

Section 145 of the DGCL (“Section 145”) provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, 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 such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, party to any threatened, pending or completed action or suit 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 another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.

 

Section 145 further authorizes a corporation to purchase and maintain insurance on 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 or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.

 

The Registrant’s directors and officers are also covered by insurance policies indemnifying them (subject to certain limits and exclusions) against certain liabilities, including certain liabilities arising under the Securities Act of 1933, as amended, which might be incurred by them in such capacities and against which they cannot be indemnified by the Registrant.

 

The indemnification rights set forth above are not exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, the Company’s certificate of incorporation or bylaws, agreement, vote of stockholders or disinterested directors or otherwise.

 

Item 7. Exemption from Registration Claimed.

 

Not applicable.

 

Item 8.  Exhibits.

 

See the Exhibit Index following the Signatures page in this Registration Statement, which Exhibit Index is incorporated herein by reference.

 

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 of 1933;

 

(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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;

 

(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) of this section 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 of 1933, 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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.

 

. . .

 

(h) Reference is made to the indemnification provisions described in Item 6 of this Registration Statement.

 

Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange 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 of 1933, 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 Tempe, state of Arizona, on June 22, 2015.

 

Capstone Therapeutics Corp.

(Registrant)

 

 

By: /s/ John M. Holliman, III  

John M. Holliman, III

Executive Chairman

__________________

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of John M. Holliman, III and Les M. Taeger as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, 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 to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any other regulatory authority, 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 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 substitutes, may lawfully do or cause to be done by virtue hereof.

 

____________________

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.*

 

Name	Capacity
/s/ John M. Holliman, III            John M. Holliman, III	Executive Chairman, and Director (principal executive officer)
/s/ Les M. Taeger                       Les M. Taeger	Senior Vice President and Chief Financial Officer (principal financial and accounting officer)
/s/ Eric W. Fangmann                Eric W. Fangmann	Director
/s/ Fredric J. Feldman                 Elwood D. Howse, Jr.	Director
/s/ Elwood D. Howse, Jr.           Elwood D. Howse, Jr.	Director

 

*Each of these signatures is affixed as of June 22, 2015.

 

Capstone Therapeutics Corp.

(the “Registrant”)

(Commission File No. 000-21214)

 

EXHIBIT INDEX

TO

FORM S-8 REGISTRATION STATEMENT

 

Exhibit Number		Description		Incorporated Herein by Reference To		Filed Herewith
4.1		Second Amended and Restated Certificate of Incorporation.		Appendix B to Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on May 8, 2015.
4.2		Bylaws of the Registrant.				X
4.3		Capstone Therapeutics Corp. 2015 Equity Incentive Compensation Plan		Appendix A to Registrant’s Definitive Proxy Statement on Schedule 14A filed with the Commission on May 8, 2015.
5		Opinion of Quarles & Brady LLP				X
23.1		Consent of Moss Adams LLP				X
23.2		Consent of Quarles & Brady LLP				Contained in Opinion filed as Exhibit 5
24		Powers of Attorney				Contained in Signatures page to this Registration Statement

 

 

 

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