Equillium, Inc. (Form: S-8, Received: 03/23/2022 16:23:17)

Large accelerated filer

Accelerated filer

Non-accelerated filer

Smaller reporting company

Emerging growth company

As filed with the Securities and Exchange Commission on March 23, 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

Equillium, Inc.

(Exact name of registrant as specified in its charter)


Delaware		82-1554746
(State or other jurisdiction of incorporation or organization)		(I.R.S. Employer Identification No.)

2223 Avenida de la Playa, Suite 105 La Jolla, California		92037
(Address of Principal Executive Offices)		(Zip Code)

2018 Equity Incentive Plan

2018 Employee Stock Purchase Plan

(Full titles of the plans)

Bruce D. Steel

Chief Executive Officer

Equillium, Inc.

2223 Avenida de la Playa, Suite 105

La Jolla, California 92037

(Name and Address of agent for service)

(858) 412-5302

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

With a copy to:

Thomas A. Coll

Cooley LLP

4401 Eastgate Mall

San Diego, California 92121

(858) 550-6000

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:

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. ☐

INCORPORATION OF DOCUMENTS BY REFERENCE

This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement of the Registrant on Form S-8 relating to the same employee benefit plans is effective.

The Registrant previously registered shares of its Common Stock for issuance under the Equillium, Inc. 2018 Equity Incentive Plan and Equillium, Inc. 2018 Employee Stock Purchase Plan under Registration Statements on Form S-8 filed with the Securities and Exchange Commission on October 16, 2018 (File No. 333-227859), March 27, 2019 (File No. 333-230536), as amended, March 26, 2020 (File No. 333-237407), and March 24, 2021 (File No. 333-254656) as amended. Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.

Item 8. Exhibits.


Exhibit Number		Description

4.1		Amended and Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Registrant’s Current Report on Form 8-K filed on October 16, 2018).

4.2		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 October 16, 2018).

4.3		Form of Common Stock Certificate of the Registrant (incorporated by reference to Exhibit 4.1 of the Registrant’s Registration Statement on Form S-1 (File No. 333-227387), as amended, originally filed on September 17, 2018).

5.1*		Opinion of Cooley LLP.

23.1*		Consent of Independent Registered Public Accounting Firm.

23.2*		Consent of Cooley LLP. Reference is made to Exhibit 5.1

24.1*		Power of Attorney. Reference is made to the signature page hereto.

99.1		Equillium, Inc. 2018 Equity Incentive Plan and Forms of Stock Option Grant Notice, Option Agreement and Notice of Exercise thereunder (incorporated by reference to Exhibit 99.2 of the Registrant’s Registration Statement on Form S-8 (File No. 333-227859) filed on October 16, 2018).

99.2		Equillium, Inc. 2018 Employee Stock Purchase Plan (incorporated by reference to Exhibit 99.3 of the Registrant’s Registration Statement on Form S-8 (File No. 333-227859) filed on October 16, 2018).

107*		Filing Fee Table

*	Filed herewith.

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 La Jolla, State of California, on March 23, 2022.


EQUILLIUM, INC.

By:		/s/ Bruce D. Steel
		Bruce D. Steel
		President and Chief Executive Officer (Principal Executive Officer)

POWER OF ATTORNEY

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Bruce D. Steel and Jason A. Keyes, and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution, for him or her in any and all capacities, to sign any and all amendments to this Registration Statement on Form S-8 (including post-effective amendments), 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 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 or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his substitute, may lawfully do or cause to be done by virtue hereof

Pursuant to the requirements of the Securities Act of 1933, as amended, the following persons in the capacities and on the dates indicated have signed this Registration Statement below.


SIGNATURE	TITLE	DATE

/s/ Bruce D. Steel	President and Chief Executive Officer	March 23, 2022
Bruce D. Steel	(Principal Executive Officer)

/s/ Jason A. Keyes	Chief Financial Officer	March 23, 2022
Jason A. Keyes	(Principal Financial and Accounting Officer)

/s/ Daniel M. Bradbury	Chairman of the Board of Directors	March 23, 2022
Daniel M. Bradbury

/s/ Stephen Connelly, Ph.D.	Member of the Board of Directors	March 23, 2022
Stephen Connelly, Ph.D.

/s/ Martha J. Demski	Member of the Board of Directors	March 23, 2022
Martha J. Demski

/s/ Bala S. Manian, Ph.D.	Member of the Board of Directors	March 23, 2022
Bala S. Manian, Ph.D.

/s/ Charles McDermott	Member of the Board of Directors	March 23, 2022
Charles McDermott

/s/ Mark Pruzanski, M.D.	Member of the Board of Directors	March 23, 2022
Mark Pruzanski, M.D.

/s/ Barbara Troupin, M.D.	Member of the Board of Directors	March 23, 2022
Barbara Troupin, M.D.

/s/ Y. Katherine Xu, M.D.	Member of the Board of Directors	March 23, 2022
Y. Katherine Xu, M.D.

Exhibit 5.1

LOGO

Thomas A. Coll

+1 858 550 6013

collta@cooley.com

March 23, 2022

Equillium, Inc.

2223 Avenida de la Playa, Suite 105

La Jolla, CA 92037

Re: Registration Statement on Form S-8

Ladies and Gentlemen:

We have acted as counsel to Equillium, Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a registration statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission, covering the offering of up to 1,767,339 shares (the “Shares”) of the Company’s Common Stock, par value $0.0001 per share ( “Common Stock”), consisting of (a) 1,472,783 shares of Common Stock issuable pursuant to the Company’s 2018 Equity Incentive Plan (the “2018 EIP”), and (b) 294,556 shares of Common Stock issuable pursuant to the Company’s 2018 Employee Stock Purchase Plan (together with the 2018 EIP, the “Plans”).

In connection with this opinion, we have examined and relied upon the Registration Statement and related prospectuses, the Plans, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, and originals or copies certified to our satisfaction of such other records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery of all documents by all persons other than by the Company where authorization, execution and delivery are prerequisites to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not independently verified such matters.

Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware. We express no opinion to the extent that any other laws are applicable to the subject matter hereof and express no opinion and provide no assurance as to compliance with any federal or state securities law, rule or regulation.

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when sold and issued in accordance with the Plans, the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to Shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

We consent to the filing of this opinion as an exhibit to the Registration Statement.


Sincerely,

Cooley LLP

By:		/s/ Thomas A. Coll
		Thomas A. Coll

Cooley LLP 4401 Eastgate Mall San Diego, CA 92121

t: (858) 550-6000 f: (858) 550-6420 cooley.com

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the use of our report dated March 23, 2022, with respect to the consolidated financial statements of Equillium, Inc., incorporated herein by reference.

/s/ KPMG LLP

San Diego, California

March 23, 2022

Exhibit 107

Calculation of Filing Fee Table

Form S-8

(Form Type)

Equillium, 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 Unit	Maximum Aggregate Offering Price	Fee Rate	Amount of Registration Fee

Equity	Common Stock, $0.0001 par value per share, 2018 Equity Incentive Plan	Rule 457(c) and Rule 457(h)	1,472,783 (2)	$3.31(4)	$4,874,911.73 (4)	0.0000927	$451.91

Equity	Common Stock, $0.0001 par value per share, 2018 Employee Stock Purchase Plan	Rule 457(c) and Rule 457(h)	294,556 (3)	$2.81(5)	$827,702.36 (5)	0.0000927	$76.73

Total Offering Amounts					$5,702,614.09		$528.64

Total Fee Offsets							—

Net Fee Due							$528.64

(1)

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 the Registrant’s Common Stock (the “Common Stock”) that become issuable under the Equillium, Inc. 2018 Equity Incentive Plan (the “2018 Plan”) and the Equillium, Inc. 2018 Employee Stock Purchase Plan (the 2018 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.

(2)

Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 Plan on January 1, 2022 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 the lesser of: (a) 5% of the total number of shares of the Registrant’s capital stock outstanding on December 31 of the preceding calendar year and (b) a number of shares of Common Stock that may be determined by the Registrant’s Board of Directors that is less than the preceding clause (a).

(3)

Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 ESPP on January 1, 2022 pursuant to an “evergreen” provision contained in the 2018 ESPP. Pursuant to such provision, on January 1 of each year through January 1, 2028, the number of shares authorized for issuance under the 2018 ESPP is automatically increased by a number equal to the lesser of: (a) 1% of the total number of shares of the Registrant’s capital stock outstanding on December 31 of the preceding calendar year; (b) 343,275 shares; or (c) a number of shares of Common Stock that may be determined by the Registrant’s Board of Directors that is less than (a) and (b).

(4)

This estimate is made pursuant to Rule 457(h)(1) and Rule 457(c) of the Securities Act solely for purposes of calculating the registration fee. The proposed maximum offering price per unit and maximum aggregate offering price are based upon the average of the high and low prices of the Common Stock on March 21, 2022, as reported on The Nasdaq Global Market.

(5)