As filed with the Securities and Exchange Commission on March 26, 2020
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
EQUILLIUM, INC.
(Exact name of registrant as specified in its charter)
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Delaware |
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82-1554746 |
(State or other jurisdiction of
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(I.R.S. Employer
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2223 Avenida de la Playa, Suite 105 La Jolla, California |
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92037 |
(Address of Principal Executive Offices) |
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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
(858) 412-5302
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
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Thomas A. Coll, Esq. Wade W. Andrews, Esq. Cooley LLP 4401 Eastgate Mall San Diego, California 92121 Tel: (858) 550-6000 |
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Jason A. Keyes Chief Financial Officer Equillium, Inc. 2223 Avenida de la Playa, Suite 105 La Jolla, California 92037 (858) 412-5302 |
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 |
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Accelerated filer |
☐ |
Non-accelerated filer |
☒ |
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Smaller reporting company |
☒ |
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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. ☐
CALCULATION OF REGISTRATION FEE
Title of Securities to be Registered |
Amount to be Registered(1) |
Proposed Maximum Offering Price Per Share(2) |
Proposed Maximum Aggregate Offering Price(2) |
Amount of Registration Fee |
2018 Equity Incentive Plan
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871,282(3) |
$2.83 |
$2,465,728.06 |
$320.05 |
2018 Employee Stock Purchase Plan Common Stock, $0.0001 par value per share |
174,256(4) |
$2.83 |
$493,144.48 |
$64.01 |
Total |
1,045,538 |
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$2,958,872.54 |
$384.06 |
____________________________________________________________________________________________________________
(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 (“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) |
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 price per share and aggregate offering price are based upon the average of the high and low prices of the Common Stock on March 24, 2020, as reported on the Nasdaq Global Market. |
(3) |
Represents 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: (a) a number equal to 5% of the total number of shares of the Registrant’s capital stock outstanding on December 31 of the preceding calendar year; or (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). |
(4) |
Represents shares of Common Stock that were automatically added to the shares authorized for issuance under the 2018 ESPP on January 1, 2020 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). |
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 plan is effective.
The Registrant previously registered shares of its Common Stock for issuance under the 2018 Plan and 2018 ESPP under Registration Statements on Form S-8 filed with the Securities and Exchange Commission on October 16, 2018 (File No. 333-227859) and March 27, 2019 (File No. 333-230536), 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
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Description |
4.1 |
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4.2 |
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4.3 |
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5.1* |
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23.1* |
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Consent of Independent Registered Public Accounting Firm.
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23.2* |
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24.1* |
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Power of Attorney. Reference is made to the signature page hereto. |
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99.1 |
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99.2 |
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*Filed herewith. |
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 26, 2020.
Equillium, Inc. |
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By: |
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/s/ Bruce D. Steel |
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Bruce D. Steel |
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President and Chief Executive Officer |
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below 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, each with the full power of substitution, for him or her and in his or her name, place or stead, in any and all capacities, to sign any and all amendments to this Registration Statement (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, 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, 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 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 and on the dates indicated.
Signature |
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Title |
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Date |
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/s/ Bruce D. Steel |
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President and Chief Executive Officer (Principal Executive Officer) |
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March 26, 2020 |
Bruce D. Steel |
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/s/ Jason A. Keyes |
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Chief Financial Officer (Principal Financial and Accounting Officer) |
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March 26, 2020 |
Jason A. Keyes |
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/s/ Daniel M. Bradbury |
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Chairman of the Board of Directors |
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March 26, 2020 |
Daniel M. Bradbury |
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/s/ Stephen Connelly, Ph.D. |
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Chief Scientific Officer and Member of the Board of Directors |
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March 26, 2020 |
Stephen Connelly, Ph.D. |
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/s/ Martha J. Demski |
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Member of the Board of Directors |
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March 26, 2020 |
Martha J. Demski |
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/s/ Bala S. Manian, Ph.D. |
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Member of the Board of Directors |
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March 26, 2020 |
Bala S. Manian, Ph.D. |
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/s/ Charles McDermott |
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Member of the Board of Directors |
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March 26, 2020 |
Charles McDermott |
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/s/ Mark Pruzanski, M.D. |
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Member of the Board of Directors |
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March 26, 2020 |
Mark Pruzanski, M.D. |
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Thomas A. Coll
+1 858 550 6013
collta@cooley.com
March 26, 2020
Equillium, Inc.
2223 Avenida de la Playa, Suite 105
La Jolla, CA 92037
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 1,045,538 shares (the “Shares”) of the Company’s Common Stock, par value $0.0001 per share ( “Common Stock”), including (i) 871,282 shares of Common Stock pursuant to the Company’s 2018 Equity Incentive Plan (the “2018 EIP”), and (ii) 174,256 shares of Common Stock 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 we have determined to be necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, the conformity to originals of all documents submitted to us as copies thereof, the accuracy, completeness and authenticity of certificates of public officials, and the due authorization, execution and delivery by all persons other than by the Company of all documents 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 their respective 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
222267425 v2
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
The Board of Directors
Equillium, Inc.:
We consent to the use of our report incorporated by reference herein.
/s/ KPMG LLP
San Diego, California
March 26, 2020