As filed with the Securities and Exchange Commission on January 24,
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
Eloxx Pharmaceuticals, Inc.
(Exact name of registrant as specified in its
charter)
| Delaware |
84-1368850 |
|
(State or other jurisdiction of
incorporation or organization) |
(I.R.S. Employer
Identification No.) |
480 Arsenal Way
Watertown, Massachusetts 02472
(781) 577-5300
(Address, including zip code and telephone number,
including area code, of Registrant’s principal executive offices)
ELOXX PHARMACEUTICALS, INC. 2018 EQUITY
INCENTIVE PLAN
(Full title of the plan)
Sumit Aggarwal
Chief Executive Officer
Eloxx Pharmaceuticals, Inc.
480 Arsenal Way
Watertown, Massachusetts 02472
(Name and address of agent for service)
(914) 207-2300
(Telephone number, including area code, of agent
for service)
Copies to:
Peter N. Handrinos, Esq.
Wesley C. Holmes, Esq.
Ellen Smiley, Esq.
Latham & Watkins LLP
200 Clarendon Street, 27th Floor
Boston, MA 02116
(617) 948-6000
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 |
x |
Smaller reporting company |
x |
| |
|
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 with the Securities and Exchange Commission (the “Commission”) for the purpose of registering an additional 157,170
shares (the “Additional Shares”) of common stock, par value $0.01 per share (the “Common Stock”), of Eloxx Pharmaceuticals, Inc.
(the “Registrant”) issuable under the Registrant’s 2018 Equity Incentive Plan (the “2018 Plan”) pursuant
to the provision 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.
The Additional Shares 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 Commission on March 31, 2023 (File No. 333-271035), March 12, 2021 (File No. 333-254201), March 6, 2020 (File No. 333-236952), May 11, 2018 (File No. 333-224860) and January 10, 2018 (File No. 333-222499).
Pursuant to General Instruction E of Form S-8,
the contents of the above-referenced prior registration statements 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.
Exhibit
Number |
|
Exhibit Description |
|
Form |
|
File No. |
|
Exhibit
Number |
|
Filing Date |
Filed
Herewith |
| 4.4 |
|
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 |
|
8-K |
|
001-31326 |
|
3.1 |
|
5/28/2010 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.5 |
|
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 |
|
10-Q |
|
001-31326 |
|
3.1 |
|
2/14/2012 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.6 |
|
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 |
|
10-Q |
|
001-31326 |
|
3.1 |
|
5/15/2013 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.7 |
|
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 |
|
8-K |
|
001-31326 |
|
3.1 |
|
10/21/2013 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.8 |
|
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 |
|
8-K |
|
001-31326 |
|
3.1 |
|
10/3/2014 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.9 |
|
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 |
|
8-K |
|
001-31326 |
|
3.1 |
|
12/22/2017 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.10 |
|
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 |
|
8-K |
|
001-31326 |
|
3.2 |
|
12/22/2017 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.11 |
|
Certificate of Amendment to Amended and Restated Certificate of Incorporation
of Eloxx Pharmaceuticals, Inc., as filed with the Secretary of State of the State of Delaware on December 1, 2022 |
|
8-K |
|
001-31326 |
|
3.1 |
|
12/1/2022 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
| 4.12 |
|
Amended and Restated Bylaws |
|
8-K |
|
001-31326 |
|
3.2 |
|
12/27/17 |
|
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 Watertown, State of Massachusetts, on this 24th day of January 2024.
| |
ELOXX
PHARMACEUTICALS, INC. |
| |
|
|
| |
By |
/s/
Sumit Aggarwal |
| |
Name |
Sumit
Aggarwal |
| |
Title |
Chief
Executive Officer |
POWER OF ATTORNEY
We, the undersigned officers and directors of
Eloxx Pharmaceuticals, Inc., hereby severally constitute and appoint Sumit Aggarwal and Daniel Geffken, and each of them singly (with
full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution
in each of them for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this registration statement, and to sign any registration statement for the same offering covered
by this registration statement that is to be effective upon filing pursuant to Rule 462(b) promulgated under the Securities
Act, and all post-effective amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith,
with the 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 or necessary to be done in and about the premises, as full 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 or her substitute or substitutes, 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 held
on the dates indicated.
| Signature |
|
Title |
|
Date |
| |
|
|
|
|
| /s/ Sumit Aggarwal |
|
Chief Executive Officer and Director
(Principal Executive Officer) |
|
January 24, 2024 |
| Sumit Aggarwal |
|
|
|
| |
|
|
| /s/ Daniel Geffken |
|
Interim Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
January 24, 2024 |
| Daniel Geffken |
|
|
|
| |
|
|
| /s/ Steven D. Rubin |
|
Director |
|
January 24, 2024 |
| Steven D. Rubin |
|
|
|
| |
|
|
|
| /s/ Lindsay Androski |
|
Director |
|
January 24, 2024 |
| Lindsay Androski |
|
|
|
| |
|
|
|
| /s/ Alan Walts, Ph.D. |
|
Director |
|
January 24, 2024 |
| Alan Walts, Ph.D. |
|
|
|
|
Exhibit 5.1
| |
200 Clarendon Street |
| |
Boston, Massachusetts 02116 |
| |
Tel: +1.617.948.6000 Fax: +1.617.948.6001 |
| |
www.lw.com |
 |
FIRM / AFFILIATE OFFICES |
| |
Austin |
Milan |
| |
Beijing |
Munich |
| |
Boston |
New York |
| |
Brussels |
Orange County |
| |
Century City |
Paris |
| |
Chicago |
Riyadh |
| January 24, 2024 |
Dubai |
San Diego |
| |
Düsseldorf |
San Francisco |
| |
Frankfurt |
Seoul |
| |
Hamburg |
Silicon Valley |
| |
Hong Kong |
Singapore |
|
Houston |
Tel Aviv |
| Eloxx Pharmaceuticals, Inc. |
London |
Tokyo |
| 480 Arsenal Way, Suite 130 |
Los Angeles |
Washington, D.C. |
| Watertown, Massachusetts 02451 |
Madrid |
|
| |
Re: |
Registration Statement on Form S-8 |
To the addressee set forth above:
We have acted as special counsel
to Eloxx Pharmaceuticals, Inc., a Delaware corporation (the “Company”), in connection with the preparation
and filing by the Company on the date hereof with the Securities and Exchange Commission (the “Commission”)
of a Registration Statement (the “Registration Statement”) on Form S-8 under the Securities Act of 1933,
as amended (the “Act”), relating to the issuance of up to 157,170 shares (the “Shares”)
of common stock of the Company, par value $0.01 per share (the “Common Stock”), which may be issued pursuant
to the Company’s 2018 Equity Incentive Plan (the “2018 Plan”). 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 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 the 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 purchasers and have been issued by the Company for
legal consideration in excess of par value in the circumstances contemplated by the 2018 Plan, assuming that the individual issuances,
grants or awards under the 2018 Plan 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 2018 Plan (and the agreements 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 such Shares will
be validly issued, fully paid and non-assessable. 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.
January 24, 2024
Page 2
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 |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of our report dated March 31, 2023, relating to the consolidated financial statements of Eloxx Pharmaceuticals, Inc.
which appears in the Company's Annual Report on Form 10-K for the year ended December 31, 2022. Our report includes an explanatory paragraph
relating to the Company's ability to continue as a going concern.
/s/ BAKER TILLY US, LLP
Tewksbury, Massachusetts
January 24, 2024
Exhibit 107.1
CALCULATION OF FILING FEE TABLES
FORM S-8
(Form Type)
Eloxx Pharmaceuticals, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1—Newly Registered Securities
Security
Type |
Security Class
Title |
Fee
Calculation
Rule |
Amount
to be
Registered (1) |
Proposed
Maximum
Offering Price
Per Unit |
Maximum
Aggregate
Offering Price |
Fee Rate |
Amount of
Registration Fee |
| Equity |
Common Stock, $0.01 par value per share |
Rule 457(c) and Rule 457(h) |
157,170(2) |
$1.11(3) |
$174,458.70 |
$ 147.60 per million dollars |
$25.76 |
| Total Offering Amounts |
|
$174,458.70 |
|
$25.76 |
| Total Fee Offsets (4) |
|
|
|
— |
| Net Fee Due |
|
|
|
$25.76 |
| (1) |
In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| |
|
| (2) |
Consists of 157,170 shares of the Registrant’s common stock, par value $0.01 per share (the “Common Stock”) that became available for issuance on January 1, 2024, pursuant to the Eloxx Pharmaceuticals, Inc. 2018 Equity Incentive Plan by operation of an automatic annual increase provision therein. |
| |
|
| (3) |
Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the Registrant’s Common Stock as reported on OTC Pink Marketplace on January 22, 2024. |
| |
|
| (4) |
The Registrant does not have any fee offsets. |
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