Securities Registration: Employee Benefit Plan (s-8)
March 06 2020 - 4:34PM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on March 6, 2020
Registration No. 333-
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Eloxx Pharmaceuticals, Inc.
(Exact name of registrant as specified
in its charter)
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Delaware
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84-1368850
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(State or other jurisdiction of
Incorporation or organization)
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(I.R.S. Employer
Identification No.)
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950 Winter Street
Waltham, MA 02451
(Address of principal executive offices)
(Zip code)
Eloxx Pharmaceuticals, Inc. 2018 Equity
Incentive Plan
Non-Plan Inducement Stock Option Award
(Full titles of the plans)
Neil S. Belloff
Chief Operating Officer and General Counsel
Eloxx Pharmaceuticals, Inc.
950 Winter Street
Waltham, MA 02451
(781) 557-5300
(Name and address of agent for service)
(Telephone number, including area code, of agent for service)
Copies to:
Miguel J. Vega
Cooley LLP
500 Boylston Street
Boston, MA 02116
(617) 937-2300
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.
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Large accelerated filer
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¨
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Accelerated filer
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x
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Non-accelerated filer
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¨
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Smaller reporting company
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x
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Emerging growth company
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¨
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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 13(a) of the Exchange Act. ☐
CALCULATION OF REGISTRATION FEE
Title of Securities
to be Registered
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Amount
to be
Registered (1)
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Proposed
Maximum
Offering Price
per Share
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee
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Common Stock, par value $0.01 per share
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2018 Equity Incentive Plan
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3,794,544(2)
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$3.14(3)
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$11,914,869.16(3)
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$1,546.55
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Non-Plan Inducement Stock Option Award
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69,000(4)
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$6.65(5)
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$458,850(5)
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$59.56
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Total
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3,863,544 shares
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—
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$12,373,719.16
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$1,606.11
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(1)
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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 Registrant’s Common Stock (“Common Stock”) that become issuable
in respect of the securities identified in the above table by reason of any stock dividend, stock split, recapitalization or other
similar transaction that results in an increase in the number of outstanding shares of Registrant’s Common Stock.
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(2)
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Represents (i) 1,793,006 shares of Common Stock that were automatically added to the shares authorized for issuance under the
Registrant’s 2018 Equity Incentive Plan (the “2018 Plan”) on January 1, 2019 and (ii) 2,001,538 shares of Common
Stock that were automatically added to the shares authorized for issuance under the 2018 Plan on January 1, 2020, pursuant to an
“evergreen” provision contained in the 2018 Plan. Pursuant to such provision, on January 1 of each year through January
1, 2028, the number of shares authorized for issuance under the 2018 Plan is automatically increased by an amount equal to 5% of
the total number of shares of the Registrant’s capital stock outstanding on December 31st of the preceding calendar
year.
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(3)
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Estimated in accordance with Rules 457(c) and (h) promulgated under the Securities Act solely for the purpose of calculating
the registration fee on the basis of $3.14 per share, the average of the high and low prices of the Registrant’s Common Stock
on March 3, 2020 as reported on the Nasdaq Stock Market.
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(4)
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Represents shares of common stock reserved for issuance upon the exercise of a stock option granted by the Registrant to Dr.
John van Duzer as a material inducement to his acceptance of employment with the Registrant (the “Inducement Award”)
in accordance with Rule 5635(c)(4) of the Nasdaq Listing Rules.
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(5)
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Estimated in accordance with Rule 457(h) promulgated under the Securities Act solely
for the purpose of calculating the amount of the registration fee. The maximum offering price per share and the maximum aggregate
offering price are calculated on the basis of $6.65 per share, the exercise price of the Inducement Award.
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EXPLANATORY NOTE
This Registration Statement on Form S-8
is being filed by Eloxx Pharmaceuticals, Inc. (the “Company” or “Registrant”) for the purpose of registering
an aggregate of 3,863,544 shares of Common Stock of the Company, $0.01 par value per share (“Common Stock”) comprised
of (i) (a) 1,793,006 shares of Common Stock with respect to the calendar year commencing January 1, 2019 and (b) 2,001,538 shares
of Common Stock with respect to the calendar year commencing January 1, 2020, that may be issued under the Registrant’s 2018
Equity Incentive Plan (the “2018 Plan”) pursuant to the provisions of the 2018 Plan which provides for an annual automatic
increase in the number of shares of Common Stock reserved for issuance under the 2018 Plan and (ii) 69,000 shares of Common Stock
issuable upon the exercise of the inducement stock option award (the “Inducement Award”), with a per share exercise
price of $6.65, granted to Dr. John van Duzer on January 15, 2018 to induce him to accept employment with the Registrant as Vice
President, CMC. The Inducement Award, which was granted outside of the 2018 Plan, was approved by the Company’s Board of
Directors and was issued pursuant to the inducement grant exception under Rule 5635(c)(4)
of the Nasdaq Listing Rules. The Inducement Award vests in sixteen (16) equal quarterly installments over a four-year period
commencing on the date of grant.
These
additional shares of the Registrant’s Common Stock are securities of the same class as other securities for which prior Registration
Statements of the Registrant on Form S-8 were previously filed with the U.S. Securities and Exchange Commission (the
“Commission”) on May 11, 2018 (File No. 333-224860), January 10, 2018 (File No. 333-222499) and February 5, 2015 (File No. 333-201891). Pursuant to General Instruction E to Form S-8, this
Registration Statement hereby incorporates by reference the contents of such prior Registration Statements on Form S-8.
PART II
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ITEM 3.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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The following documents filed by the Registrant
with the Commission are incorporated by reference into this Registration Statement:
(a) The Registrant’s Annual
Report on Form 10-K for the year ended December 31, 2019 filed with the Commission on March 6, 2020.
(b) The Registrant’s
Current Reports on Form 8-K filed with the Commission on January
14, 2020, February
26, 2020 and March 5, 2020, with the exception of any portions thereof that are not deemed “filed” with the
Commission”.
(e) The description of Registrant’s
Common Stock which is contained in a Registration Statement on Form 8-A filed on April 24, 2018, including any amendment or report
filed for the purpose of updating such description.
(f) All other reports and documents
subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports
furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits furnished on such form that relate to such items) on
or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement
that indicates that all securities offered have been sold or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference herein and to be a part of this Registration Statement from the date of the filing of such reports
and 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 of this Registration Statement to the extent that a statement contained herein or in
any subsequently filed document that also is deemed to be incorporated by reference herein modifies or supersedes such statement.
Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of
this Registration Statement.
Exhibit
Number
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Description
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4.1
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Amended and Restated Certificate of Incorporation of Senesco Technologies, Inc. filed with the State of Delaware on January 22, 2007. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q filed on February 14, 2007, File No. 001-31326).
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4.2
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Senesco Technologies, Inc. filed with the State of Delaware on December 13, 2007. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form 10-Q filed on February 14, 2008, File No. 001-31326).
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4.3
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Senesco Technologies, Inc. filed with the State of Delaware on September 22, 2009. (Incorporated by reference to Exhibit 3.3 of the Registrant’s Annual Report on Form 10-K filed on September 28, 2009, File No. 001-31326).
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4.4
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Senesco Technologies, Inc. filed with the State of Delaware on May 25, 2010. (Incorporated by reference to Exhibit 3.1 to the Registrant’s Current Report on Form 8-K filed on May 28, 2010, File No. 001-31326).
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4.5
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Senesco Technologies, Inc. filed with the State of Delaware on December 22, 2011. (Incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on February 14, 2012, File No. 001-31326).
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4.6
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Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Senesco Technologies, Inc. filed with the State of Delaware on April 1, 2013. (Incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q filed on May 15, 2013, File No. 001-31326).
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4.7
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Certificate of Amendment to the Registrant’s Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on October 16, 2013. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on October 21, 2013, File No. 001-31326).
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4.8
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Certificate of Amendment to the Registrant’s Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on September 29, 2014. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on October 3, 2014, File No. 001-31326).
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4.9
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Certificate of Amendment to the Registrant’s Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on December 19, 2017. (Incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on December 22, 2017, File No. 001-31326).
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4.10
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Certificate of Amendment to the Registrant’s Amended and Restated Certificate of Incorporation, as filed with the Secretary of State of the State of Delaware on December 19, 2017. (Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed on December 22, 2017, File No. 001-31326).
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4.11
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Amended and Restated Bylaws of the Registrant (Incorporated by reference to Exhibit 3.2 of the Registrant’s Current Report on Form 8-K filed on December 27, 2017, File No. 001-31326).
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4.12
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Specimen of Common Stock Certificate (Incorporated by reference to Exhibit 4.1 of the Registrant’s Annual Report on Form 10-K filed on March 16, 2018, File No. 001-31326).
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5.1*
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Opinion of Cooley LLP.
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23.1*
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Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
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23.2*
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Consent of Cooley LLP (included in Exhibit 5.1).
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24.1*
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Power of Attorney (included on the signature page).
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99.1
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Eloxx
Pharmaceuticals, Inc. 2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.1 of the Registrant’s Current Report on Form 8-K filed on March 30, 2018, File No. 001-31326).
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99.2
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Form of Stock Option Grant Notice, Option Agreement and Notice of Exercise under the Eloxx Pharmaceuticals, Inc. 2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 of the Registrant’s Current Report on Form 8-K filed on March 30, 2018, File No. 001-31326).
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99.3
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Israeli Sub-Plan under the Eloxx Pharmaceuticals, Inc. 2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.3 of the Registrant’s Current Report on Form 8-K filed on March 30, 2018, File No. 001-31326).
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99.4
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Form of Israeli Stock Option Grant Package under the Israeli Sub-Plan under the Eloxx Pharmaceuticals, Inc. 2018 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 of the Registrant’s Current Report on Form 8-K filed on March 30, 2018, File No. 001-31326).
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99.5
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Form of Restricted Stock Unit Grant Notice for non-Israeli employees (incorporated by reference to Exhibit 99.5 of the Registrant's Registration Statement on Form S-8 file on May 11, 2018, File No. 333-224860).
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99.6
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Form of Restricted Stock Unit Grant Notice for Israeli employees (incorporated by reference to Exhibit 10.6 of the Registrant’s Quarterly Report on Form 10-Q filed on August 10, 2018, File No. 001-31326).
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99.7*
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John van Duzer Stock Option Grant Notice and Stock Option Agreement, dated February 22, 2018.
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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 Waltham, State of Massachusetts, on March 6, 2020.
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ELOXX PHARMACEUTICALS, INC.
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By:
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/s/ Neil S. Belloff
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Neil S. Belloff
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Chief Operating Officer and General Counsel
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POWER OF ATTORNEY
KNOW
ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and appoints Gregory
C. Williams and Neil S. Belloff, and each or any one of them, as his or her true and lawful attorneys-in-fact and agents, each
with the full power of substitution and resubstitution, for him or 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 U.S. Securities and Exchange Commission, 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 connection therewith, 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 or his substitutes or substitute,
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 dates indicated.
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Name
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Title
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Date
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/s/ Gregory C. Williams
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Chief Executive Officer
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March 6, 2020
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Gregory C. Williams
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(Principal Executive Officer)
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/s/ Stephen MacDonald
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Vice President, Finance and Accounting, and Treasurer
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March 6, 2020
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Stephen MacDonald
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(Principal Accounting Officer)
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/s/ Tomer Kariv
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Chairman of the Board of Directors
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March 6, 2020
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Tomer Kariv
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/s/ Ran Nussbaum
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Director
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March 6, 2020
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Ran Nussbaum
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/s/ Silvia Noiman
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Director
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March 6, 2020
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Silvia Noiman, PhD
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/s/ Gadi Veinrib
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Director
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March 6, 2020
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Gadi Veinrib
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/s/ Zafrira Avnur
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Director
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March 6, 2020
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Zafrira Avnur, PhD
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/s/ Martijn Kleijwegt
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Director
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March 6, 2020
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Martijn Kleijwegt
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/s/ Steven D. Rubin
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Director
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March 6, 2020
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Steven D. Rubin
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/s/ Jasbir Seehra
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Director
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March 6, 2020
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Jasbir Seehra
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