S-8

As filed with the Securities and Exchange Commission on February 27, 2024

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

(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 4,839,367 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, 333-262902, and 333-270136) 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 3,871,494 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 967,873 shares of common stock.

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, 333-262902, and 333-270136) 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
107	Filing Fee Table.					X

______________

# Indicates management contract or compensatory plan.

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 27, 2024.

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 John W. Smither, 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 27, 2024
Todd Franklin Watanabe
/s/ John W. Smither	Chief Financial Officer (Principal Accounting and Financial Officer)	February 27, 2024
John W. Smither
/s/ Bhaskar Chaudhuri	Director	February 27, 2024
Bhaskar Chaudhuri
/s/ Terrie Curran	Director	February 27, 2024
Terrie Curran
/s/ Halley E. Gilbert	Director	February 27, 2024
Halley E. Gilbert
/s/ Patrick J. Heron	Director	February 27, 2024
Patrick J. Heron
/s/ Neha Krishnamohan	Director	February 27, 2024
Neha Krishnamohan
/s/ Keith R. Leonard Jr.	Director	February 27, 2024
Keith R. Leonard Jr.
/s/ Sue-Jean Lin	Director	February 27, 2024
Sue-Jean Lin
/s/ Howard G. Welgus, M.D.	Director	February 27, 2024
Howard G. Welgus, M.D.

EX-FILING FEES

Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Arcutis Biotherapeutics, 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 Share (2)	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.0001 par value per share	457(c) and 457(h)	4,839,367 (3)	$9.10	$44,038,239.70	$147.60 per $1,000,000	$	6,500.05
Total Offering Amounts					$44,038,239.70		$	6,500.05
Total Fees Previously Paid							–
Total Fee Offsets (4)							–
Net Fee Due							$	6,500.05

(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 that becomes issuable under the 2020 Equity Incentive Plan (as amended, the “2020 Plan”) and the 2020 Employee Stock Purchase Plan (as amended, the “2020 ESPP”) 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)Pursuant to 457(c) and 457(h) under the Securities Act, the proposed maximum offering price per share is estimated solely for the purpose of calculating the registration fee and is based upon the average of the high and low prices of the Registrant's common stock as reported on the Nasdaq Global Market on February 21, 2024, which date is within five business days prior to filing this Registration Statement.

(3)Consists of (i) 3,871,494 additional shares of the Registrant’s common stock that became available for issuance on January 1, 2024 under the 2020 Plan, by operation of an automatic annual increase provision therein and (ii) 967,873 additional shares of the Registrant’s common stock that became available for issuance on January 1, 2024 under the 2020 ESPP, by operation of an automatic annual increase provision therein.

(4)The Registrant does not have any fee offsets.

EX-5.1

Exhibit 5.1

	140 Scott Drive Menlo Park, California 94025 Tel: +1.650.328.4600 Fax: +1.650.463.2600 www.lw.com FIRM / AFFILIATE OFFICES
	Austin	Milan
	Beijing	Munich
	Boston	New York
	Brussels	Orange County
	Century City	Paris
	Chicago	Riyadh
	Dubai	San Diego
	Düsseldorf	San Francisco
	Frankfurt	Seoul
	Hamburg	Shanghai
	Hong Kong	Silicon Valley
	Houston	Singapore
	London	Tel Aviv
	Los Angeles	Tokyo
	Madrid	Washington, D.C.

February 27, 2024

Arcutis Biotherapeutics, Inc.

3027 Townsgate Road, Suite 300

Westlake Village, CA 91361

Re: Registration Statement on Form S-8: 4,839,367 Common Stock of Arcutis Biotherapeutics, Inc., par value $0.0001 per share

To the addressee set forth above:

We have acted as special counsel to Arcutis Biotherapeutics, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing by the Company with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”), relating to the issuance of up to 4,839,367 shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), which may be issued pursuant to the Arcutis Biotherapeutics, Inc. 2020 Equity Incentive Plan (the “2020 Plan”) and the Arcutis Biotherapeutics, Inc. 2020 Employee Stock Purchase Plan (together with the 2020 Plan, the “Plans”). This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement or the prospectus forming a part thereof, other than as expressly stated herein with respect to the issuance of the Shares.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates and other assurances of officers of the Company and others as to factual matters without having independently verified such factual matters. We are opining herein as to General Corporation Law of the State of Delaware, as amended (the “DGCL”), and we express no opinion with respect to any other laws.

Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof, when the Shares shall have been duly registered on the books of the transfer agent and registrar therefor in the name or on behalf of the recipients thereof, and have been issued by the Company for legal consideration in excess of par value in the circumstances contemplated by the Plans, assuming in each case that the individual issuances, grants or awards under the Plans are duly authorized by all necessary corporate action and duly issued, granted or awarded and exercised in accordance with the requirements of law and the applicable Plan (and

February 27, 2024

Page 2

the agreements and awards duly adopted thereunder and in accordance therewith), the issue and sale of the Shares will have been duly authorized by all necessary corporate action of the Company, and the Shares will be validly issued, fully paid and nonassessable. In rendering the foregoing opinion, we have assumed that the Company will comply with all applicable notice requirements regarding uncertificated shares provided in the DGCL.

This opinion is for your benefit in connection with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.

                                              Sincerely,

                                              /s/ Latham & Watkins LLP

EX-23.2

Exhibit 23.2

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2020 Equity Incentive Plan and 2020 Employee Stock Purchase Plan of Arcutis Biotherapeutics, Inc. of our report dated February 27, 2024, with respect to the consolidated financial statements of Arcutis Biotherapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

/s/ Ernst & Young LLP

Los Angeles, California

February 27, 2024