As
filed with the Securities and Exchange Commission on
August 19, 2022
Registration
No.
333-
United
States
Securities and Exchange Commission
Washington, D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Actinium
Pharmaceuticals, Inc.
(Exact name of registrant as specified in its charter)
Delaware |
|
74-2963609 |
(State
or other jurisdiction of
incorporation or organization) |
|
(I.R.S.
Employer
Identification No.) |
275
Madison Avenue, 7th Floor, New York, NY |
|
10016 |
(Address
of Principal Executive Offices) |
|
(Zip
Code) |
Actinium
Pharmaceuticals Inc. 2019 Stock Plan
(Full title of the plan)
Sandesh
Seth
Chairman and Chief Executive Officer
275 Madison Avenue, 7th Floor,
New York, New York 10016
(Name and address of agent for
service)
(914)
233-3004
(Telephone number, including area code, of agent for
service)
Copy
to:
Rick A. Werner, Esq.
Jayun Koo, Esq.
Haynes and Boone, LLP
30 Rockefeller Plaza, 26th Floor
New York, New York 10112
Tel. (212) 659-7300
Fax (212) 884-8234
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
This
Registration Statement on Form S-8 is being filed by Actinium
Pharmaceuticals, Inc. (the “Company”) in connection with the
registration of 5,833,333 shares of the Company’s common stock, par
value $0.001 per share (the “Common Stock”) issuable pursuant to
the Actinium Pharmaceuticals, Inc. 2019 Stock Plan (as amended, the
“2019 Plan”).
PART
I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In
accordance with the instructional Note to Part I of Form S-8 as
promulgated by the Securities and Exchange Commission (the
“Commission”), the information specified by Part I of Form S-8 has
been omitted from this Registration Statement on Form S-8 for
offers of common stock pursuant to the 2019 Plan. The documents
containing this information will be sent or given to eligible
participants as specified in Rule 428(b)(1) of the Securities
Act of 1933, as amended (the “Securities Act”). Such documents are
not being filed by the Company with the Commission either as part
of this Registration Statement or as prospectuses or prospectus
supplements pursuant to Rule 424 of the Securities Act. Such
documents and the documents incorporated by reference in this
Registration Statement pursuant to Item 3 of Part II
hereof, taken together, constitute a prospectus that meets the
requirements of Section 10(a) of the Securities Act.
PART
II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
Securities and Exchange Commission (the “Commission”) allows us to
“incorporate by reference” certain information we have filed with
the Commission into this Registration Statement, which means that
we are disclosing important information to you by referring you to
other information we have filed with the Commission. The
information we incorporate by reference is considered part of this
Registration Statement. We specifically are incorporating by
reference the following documents filed with the Commission
(excluding those portions of any Current Report on Form 8-K that
are furnished and not deemed “filed” pursuant to the General
Instructions of Form 8-K):
|
1.
Our Annual Report on
Form 10-K for the year ended December 31, 2021, filed with the
Commission on March 25, 2022; |
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|
|
2.
Our Quarterly Report on
Form 10-Q for the quarter ended March 31, 2022, filed with
the Commission on May 13, 2022, and our Quarterly Report on
Form 10-Q for the quarter ended June 30, 2022, filed with
the Commission on August 12, 2022; |
|
|
|
3.
Our Current Reports on Form 8-K filed with the Commission on
April 13, 2022 and
June 29, 2022; |
|
|
|
4.
The description of our common stock, which is contained in
Exhibit 4.15 to our Annual Report on Form 10-K for the
year ended December 31, 2020, filed with the SEC on March 31,
2021, and any amendment or report filed with the SEC for purposes
of updating such description. |
Additionally,
all documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as Amended (the “Exchange Act”) (other than any such
documents or portions thereof that are furnished under Item 2.02 or
Item 7.01 of a Current Report on Form 8-K, unless otherwise
indicated therein, including any exhibits included with such
Items), 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 herein by reference and to be a part of
this Registration Statement from the date of filing of such
documents. Any statement contained in a document incorporated
herein by reference will be deemed to be modified or superseded for
purposes of this Registration Statement to the extent that a
statement contained herein, or in a subsequently filed document
incorporated herein by reference, modifies or supersedes the
statement. Any statement modified or superseded will not be deemed,
except as modified or superseded, to constitute a part of this
Registration Statement.
We
will provide without charge to each person to whom documents are
being provided pursuant to Part I of this Registration
Statement, upon the written or oral request of any such person, a
copy of any document described above (other than exhibits).
Requests for such copies should be directed to Actinium
Pharmaceuticals, Inc., 275 Madison Avenue, 7th Floor, New
York, NY 10016, Attention: Steve O’Loughlin, Chief Financial
Officer; or by telephone at: (646) 677-3875.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Directors and Officers.
Section
102(b)(7) of the Delaware General Corporation Law 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 directors 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.
Our certificate of incorporation provides for this limitation of
liability.
Section
145 of the General Corporation Law of the State of Delaware
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 conduct was illegal. A
Delaware corporation may indemnify any persons who are, or were, a
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 directors 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 status as such, whether or not the
corporation would otherwise have the power to indemnify him under
Section 145.
Our
bylaws provide that we will indemnify our directors and officers to
the fullest extent authorized by the General Corporation Law of the
State of Delaware. Expenses (including attorneys’ fees)
incurred by an officer or director of the Corporation in defending
any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the Company in advance of the final
disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay
such amount if it shall ultimately be determined that such person
is not entitled to be indemnified by the Company as authorized
under Delaware law. Such expenses (including attorneys’
fees) incurred by former directors and officers or other employees
and agents of the Company or by persons serving at the request of
the Company as directors, officers, employees or agents of another
corporation, partnership, joint venture, trust or other enterprise
may be so paid upon such terms and conditions, if any, as the
Company deems appropriate.
The
indemnification rights set forth above shall not be exclusive of
any other right which an indemnified person may have or hereafter
acquire under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such
person’s official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who
has ceased to be a director, officer, employee, or agent and shall
inure to the benefit of the heirs, executors, and administrators of
such person.
We
maintain a general liability insurance policy that covers
liabilities of directors and officers of our corporation arising
out of claims based on acts or omissions in their capacities as
directors or officers. We have also entered in to Indemnification
Agreements with our executive officers and directors.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
list of exhibits is set forth under “Exhibit Index” at the end of
this Registration Statement and 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;
(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) 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 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 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.
(h)
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, 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.
EXHIBIT
INDEX
Exhibit No.
|
|
Description |
4.1 |
|
Certificate of Incorporation of Actinium Pharmaceuticals, Inc.
(incorporated by reference to Exhibit 3.1 of the Company’s
Form 8-K filed with the SEC on April 17, 2013). |
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4.2 |
|
Certificate
of Amendment to Certificate of Incorporation filed January 7, 2014
(incorporated by reference to Exhibit 3.5 to Form S-1 filed on
January 31, 2014). |
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4.3 |
|
Certificate
of Amendment to Certificate of Incorporation filed February 3,
2014. (incorporated by reference to Exhibit 3.1 to Form 8-K filed
on February 7, 2014). |
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4.4 |
|
Certificate
of Amendment to Certificate of Incorporation (incorporated by
reference to Exhibit 3.1 to Form 8-K filed on March 4,
2015). |
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4.5 |
|
Certificate
of Amendment to Actinium’s Certificate of Incorporation, as
amended, filed on February 26, 2018 (incorporated by reference to
Exhibit 3.1 to Form 8-K filed on February 26,
2018). |
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|
4.6 |
|
Certificate
of Amendment to Actinium’s Certificate of Incorporation, as
amended, filed on March 6, 2019 (incorporated by reference to
Exhibit 3.7 to Form 10-K filed on March 15, 2019). |
|
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|
4.7 |
|
Certificate
of Amendment to Certificate of Incorporation, as amended, filed on
June 16, 2020 (incorporated by reference to Exhibit 3.1 to Form 8-K
filed on June 16, 2020). |
|
|
|
4.8 |
|
Amended
and Restated Bylaws, dated August 8, 2018 (incorporated by
reference to Exhibit 3.1 to Form 10-Q filed on August 9,
2018). |
|
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|
4.9 |
|
Amendment
to the Amended and Restated Bylaws, dated May 7, 2020 (incorporated
by reference to Exhibit 3.1 to Form 8-K filed on May 5,
2020). |
5.1* |
|
Opinion
of Haynes and Boone, LLP. |
|
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|
23.1* |
|
Consent
of Marcum LLP, Independent Registered Public Accounting
Firm. |
|
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23.2* |
|
Consent
of Haynes and Boone, LLP (included in Exhibit 5.1). |
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24.1* |
|
Power
of Attorney (included in signature page). |
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99.1 |
|
Actinium
Pharmaceuticals, Inc. 2019 Plan (incorporated by reference to
Exhibit 10.1 to the Current Report on Form 8-K, filed with the
Commission on November 20, 2020). |
|
|
|
99.2 |
|
Amendment
to the Actinium Pharmaceuticals, Inc. 2019 Plan (incorporated by
reference to Exhibit 10.2 to the Current Report on Form 8-K, filed
with the Commission on November 20, 2020). |
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|
|
99.3 |
|
Second
Amendment to the Actinium Pharmaceuticals, Inc. 2019 Plan
(incorporated by reference to Exhibit 10.1 to the Current Report on
Form 8-K, filed with the Commission on November 9,
2021). |
|
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|
99.4* |
|
Third Amendment to the
Actinium Pharmaceuticals, Inc. 2019 Stock Plan. |
|
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|
107* |
|
Filing
Fee Table |
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 New York,
State of New York, on the 19th day of August, 2022.
|
Actinium
Pharmaceuticals, Inc. |
|
|
|
|
By: |
/s/
Sandesh Seth |
|
|
Sandesh
Seth |
|
|
Chief
Executive Officer |
POWER OF
ATTORNEY
Each
person whose signature appears below constitutes and appoints
Sandesh Seth or Steve O’Loughlin, each with full power to act
alone, as his true and lawful attorney-in-fact and agent, with full
power of substitution, for him and on his behalf and in his name,
place and stead, in any and all capacities, to execute any and all
amendments (including post-effective amendments) to this
Registration Statement, including, without limitation, additional
registration statements filed pursuant to Rule 462(b) under the
Securities Act, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Commission,
granting unto said attorney-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
in order to effectuate the same, as fully and to all intents and
purposes as he might or could do if personally present, hereby
ratifying and confirming all that said attorneys-in-fact and
agents, or either of them, or their substitute or their
substitutes, 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 indicated and on the 19th day of August,
2022.
Signature |
|
Title |
|
|
|
/s/
Sandesh Seth |
|
Chairman
and Chief Executive Officer |
Sandesh
Seth |
|
(Principal
Executive Officer) |
|
|
|
/s/
Steve O’Loughlin |
|
Chief
Financial Officer |
Steve
O’Loughlin |
|
(Principal
Financial Officer and Principal Accounting Officer) |
|
|
|
/s/
Jeffrey Chell |
|
Director |
Jeffrey
Chell |
|
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|
|
|
|
Director |
David
Nicholson |
|
|
|
|
|
/s/
Richard I. Steinhart |
|
Director |
Richard
I. Steinhart |
|
|
|
|
|
/s/ Ajit J. Shetty |
|
Director |
Ajit
J. Shetty |
|
|
II-6
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