As filed with the Securities and Exchange Commission on April 1, 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


Xilio Therapeutics, Inc.

(Exact Name of Registrant as Specified in Its Charter)


    

Delaware

 

85-1623397

(State or Other Jurisdiction of

Incorporation or Organization)

 

(I.R.S. Employer

Identification No.)

828 Winter Street, Suite 300

Waltham, Massachusetts

 

02451

(Address of Principal Executive Offices)

 

(Zip Code)

2021 Stock Incentive Plan

2021 Employee Stock Purchase Plan

(Full Title of the Plan)

René Russo

President and Chief Executive Officer

Xilio Therapeutics, Inc.

828 Winter Street, Suite 300

Waltham, Massachusetts 02451

(Name and Address of Agent for Service)

(857) 524-2466

(Telephone Number, Including Area Code, of Agent for Service)

Copy to:

Christopher Frankenfield

Chief Operating Officer

Xilio Therapeutics, Inc.

828 Winter Street, Suite 300

Waltham, Massachusetts 02451

(857) 524-2466


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

 

  

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.


Statement of Incorporation by Reference

This Registration Statement on Form S 8, relating to the 2021 Stock Incentive Plan (the “2021 Plan”) and the 2021 Employee Stock Purchase Plan (the “2021 ESPP”) of Xilio Therapeutics, Inc. (the “Registrant”), is being filed for the purpose of registering additional securities of the same class as other securities for which a Registration Statement on Form S-8 has previously been filed and is effective. Accordingly, this Registration Statement incorporates by reference the contents of (i) the Registration Statement on Form S 8 (File No. 333-260460) filed with the Securities and Exchange Commission (“SEC”) on October 25, 2021 by the Registrant relating to the 2021 Plan and the 2021 ESPP, (ii) the Registration Statement on Form S 8 (File No. 333-263178) filed with the SEC on March 1, 2022 by the Registrant relating to the 2021 Plan and the 2021 ESPP, and (iii) the Registration Statement on Form S-8 (File No. 333-270240) filed with the SEC on March 2, 2023 by the Registrant relating to the 2021 Plan and the 2021 ESPP, except in each case, for “Item 8. Exhibits” with respect to which the exhibit index set forth below is incorporated herein by reference.

Item 8.Exhibits.

The following exhibits are incorporated herein by reference:

Number

  

Description

4.1

  

Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K (File No. 001-40925), filed with the Securities and Exchange Commission on October 26, 2021)

4.2

  

Second Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 3.1 of the Company’s Current Report on Form 8-K (File No. 001-40925), filed with the Securities and Exchange Commission on April 3, 2023)

5.1*

  

Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant

23.1*

  

Consent of Ernst & Young LLP, independent registered public accounting firm

23.2*

  

Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)

24.1*

  

Power of attorney (included on the signature pages of this registration statement)

99.1

  

2021 Stock Incentive Plan (incorporated by reference to Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1 (File No. 333-259973) filed with the Securities and Exchange Commission on October 18, 2021)

99.2

  

2021 Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.8 to the Registrant’s Registration Statement on Form S-1 (File No. 333-259973) filed with the Securities and Exchange Commission on October 18, 2021)

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 Waltham, Commonwealth of Massachusetts on this 1st day of April, 2024.

XILIO THERAPEUTICS, INC.

By:

/s/ René Russo

René Russo

President and Chief Executive Officer

POWER OF ATTORNEY AND SIGNATURES

We, the undersigned officers and directors of Xilio Therapeutics, Inc., hereby severally constitute and appoint René Russo and Chris Frankenfield, and each of them singly (with full power to each of them to act alone), our true and lawful attorneys with full power of substitution and resubstitution in each of them for him and in his name, place and stead, and in any and all capacities, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Xilio Therapeutics, Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and any and all amendments thereto.

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

   

Title

   

Date

/s/ René Russo

   

President and Chief Executive Officer, Director

(Principal Executive Officer)

   

April 1, 2024

René Russo

/s/ Kevin Brennan

  

Senior Vice President, Finance and Accounting (Principal Financial and Accounting Officer)

  

April 1, 2024

Kevin Brennan

/s/ Paul J. Clancy

  

Chair of the Board of Directors

  

April 1, 2024

Paul J. Clancy

/s/ Sara M. Bonstein

  

Director

  

April 1, 2024

Sara M. Bonstein

/s/ Daniel Curran

  

Director

  

April 1, 2024

Daniel Curran

/s/ Tomas J. Heyman

  

Director

  

April 1, 2024

Tomas J. Heyman

/s/ Robert Ross

  

Director

  

April 1, 2024

Robert Ross

/s/ Christina Rossi

  

Director

  

April 1, 2024

Christina Rossi

/s/ Yuan Xu

  

Director

  

April 1, 2024

Yuan Xu


Exhibit 5.1

Graphic

April 1, 2024

Xilio Therapeutics, Inc.

828 Winter Street, Suite 300

Waltham, Massachusetts 02451

Re:

Xilio Therapeutics, Inc. 2021 Stock Incentive Plan

Xilio Therapeutics, Inc. 2021 Employee Stock Purchase Plan

Ladies and Gentlemen:

We have assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to an aggregate of 1,656,795 shares of common stock, $0.0001 par value per share (the “Shares”), of Xilio Therapeutics, Inc., a Delaware corporation (the “Company”), of which (i) 1,380,663 shares are issuable under the Company’s 2021 Stock Incentive Plan (the “SIP”) and (ii) 276,132 shares are issuable under the Company’s 2021 Employee Stock Purchase Plan (the “ESPP,” and, together with the SIP, the “Plans”).

We have examined the Certificate of Incorporation and By-Laws of the Company, each as amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the board of directors and stockholders of the Company, the Registration Statement, the Plans and such other documents relating to the Company as we have deemed material for the purposes of this opinion.

In our examination of the foregoing documents, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents and the legal competence of all signatories to such documents.

We assume that the appropriate action will be taken, prior to the offer and sale of the Shares in accordance with the Plans, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.

We express no opinion herein as to the laws of any state or jurisdiction other than the General Corporation Law of the State of Delaware.

It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.

1


Graphic

April 1, 2024

Page 2

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.

Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in accordance with the terms and conditions of the Plans, the Shares will be validly issued, fully paid and nonassessable.

We hereby consent to the filing of this opinion with the Commission in connection with the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

Very truly yours,

/s/ Wilmer Cutler Pickering Hale and Dorr LLP

WILMER CUTLER PICKERING HALE AND DORR LLP

2


Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

 

We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2021 Stock Incentive Plan and the 2021 Employee Stock Purchase Plan of Xilio Therapeutics, Inc. of our report dated April 1, 2024, with respect to the consolidated financial statements of Xilio Therapeutics, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2023, filed with the Securities and Exchange Commission.

 

[X]

/s/ Ernst & Young LLP

 

Boston, Massachusetts

April 1, 2024


Exhibit 107

Calculation of Filing Fee Tables

Form S-8

(Form Type)

Xilio Therapeutics, 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

Other

1,656,795 (2)

$0.63 (3)

$1,048,834.07 (3)

0.00014760

$154.81

Total Offering Amounts

$1,048,834.07

$154.81

Total Fee Offsets

$0

Net Fee Due

$154.81

(1)

In accordance with Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), 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, recapitalizations or similar transactions.

(2)

Consists of (i) 1,380,663 shares issuable under the Xilio Therapeutics, Inc. 2021 Stock Incentive Plan and (ii) 276,132  shares issuable under the Xilio Therapeutics, Inc. 2021 Employee Stock Purchase Plan.  

(3)

Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act and based upon the average of the high and low prices of the registrant’s common stock as reported on the Nasdaq Global Select Market on March 27, 2024.