Second Sight Medical Products, Inc.
SECOND SIGHT MEDICAL PRODUCTS INC (Form: S-8, Received: 08/07/2017 07:04:23)

 

As filed with the Securities and Exchange Commission on August 7, 2017

Registration No. 333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Second Sight Medical Products, Inc.

(Exact name of registrant as specified in its charter)

 

California   02-0692322

(State or other jurisdiction of

incorporation or organization) 

 

(I.R.S. Employer

Identification No.) 

  

12744 San Fernando Road, Suite 400

Sylmar, California 91342

 

(818) 833-5000  

(Address of Principal Executive Offices, including Zip Code)

 

  Second Sight Medical Products Inc. 2011 Equity Incentive Plan, as amended

Second Sight Medical Products Inc. 2015 Employee Stock Purchase Plan, as amended


(Full title of the plans)

 

Will McGuire

Chief Executive Officer

Second Sight Medical Products, Inc.

12744 San Fernando Road, Suite 400

Sylmar, California 91342

(Name and address of agent for service)

 

 (818) 833-5000

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

 

 Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act:

 

Large accelerated filer  ☐     Accelerated filer  
Non-accelerated filer  ☐   (do not check if a small reporting company)   Smaller reporting company  

 

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CALCULATION OF REGISTRATION FEE

 

Title of Securities
to be Registered
Amount
to be
Registered (1)
Proposed
Maximum
Offering
Price
per Share
Proposed
Maximum
Aggregate
Offering Price
Amount of Registration
Fee
 
Common Stock, no par value per share 2,000,000    (2) $ 1.23 $ 2,460,000       $ 285.11  
Common Stock, no par value per share    500,000    (3) $ 1.23 $ 615,000    $   71.28  
Total 2,500,000          $ 1.23 $ 3,075,000 (4) $ 356.39  

 

(1)   Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this registration statement also covers any additional shares of common stock that become issuable by reason of any stock dividend, stock split, recapitalization or other similar transactions effected without the registrant’s receipt of consideration that results in an increase in the number of registrant’s outstanding shares of common stock.

(2)   Represents additional shares issuable upon exercise of options reserved pursuant to future awards under the amended 2011 Equity Plan.

(3) Represents additional shares of common stock reserved for issuance pursuant to future awards under the 2015 Employee Stock Purchase Plan, as amended.

(4) Estimated in accordance with paragraphs (c) and (h) of Rule 457 under the 1933 Act solely for the purpose of calculating the registration fee on the basis of $1.23 per share which represents the average of the high and low price per share of the Company’s common stock on August 3, 2017 as reported on the Nasdaq Capital Market.

 

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Explanatory Note

 

This Registration Statement on Form S-8 is being filed by Second Sight Medical Products, Inc. (the “Registrant”) to register a total of (i) 2,000,000 additional shares of common stock issuable under the Registrant’s 2011 Equity Incentive Plan, as amended, (the “Option Shares”) and (ii) 500,000 shares of common stock (the “Plan Shares”) issuable under the Registrant’s 2015 Employee Stock Purchase Plan, as amended. The Option Shares and the Plan Shares are in addition to the common stock previously registered for issuance on the Registrant’s Registration Statement on Form S-8 filed with the Securities and Exchange Commission on May 15, 2017 (File No. 333-218016) (the “Prior Registration Statement”).

 

This Registration Statement relates to securities of the same class as that to which the Prior Registration Statement relates, and is submitted in accordance with General Instruction E to Form S-8 regarding registration of additional securities. Pursuant to such instruction, the contents of the Prior Registration Statement are incorporated by reference and made part of this Registration Statement.

 

ITEM 8. EXHIBITS.

       
Exhibit No. Description of Exhibits   Method of Filing
       
5.1 Opinion and Consent of Aaron A. Grunfeld   Filed electronically herewith
       
10.4 2011 Equity Incentive Plan, as amended (1)    
       
10.17 2015 Employee Stock Purchase Plan, as amended (1)    
       
23.1* Consent of Gumbiner Savett Inc.   Filed electronically herewith
       
23.2* Consent of Aaron A. Grunfeld (included in Exhibit 5.1).    
       
24.1 Power of Attorney (Included on the signature page to this registration statement)    

 

(1) Incorporated by reference to the registrant’s definitive proxy statement on Schedule 14A filed with the Securities and Exchange Commission on May 1, 2017

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act, 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 Sylmar, State of California, on August 4, 2017.

 

  SECOND SIGHT MEDICAL PRODUCTS, INC.
   
 

By:

/s/ Jonathan Will McGuire

    Jonathan Will McGuire
    President and Chief Executive Officer

 

POWER OF ATTORNEY

Each person whose signature appears below hereby constitutes and appoints Jonathan Will McGuire and Thomas Miller, and each of them, as such person’s true and lawful attorney-in-fact and agent, each with full powers of substitution and re-substitution, for such person and in such person’s name, place and stead, in any and all capacities, to sign any or 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 Securities and Exchange Commission, granting unto said attorney-in-fact and agent 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 fully to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his or her substitute or substitutes, may lawfully do or cause to be done by virtue thereof.

 

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.

 

Name

 

Title

 

Date

     

/s/ Jonathan Will McGuire

 

President, Chief Executive Officer and Director

  August 4, 2017
Jonathan Will McGuire   (Principal Executive Officer)    
     

/s/ Thomas B. Miller

 

Chief Financial Officer

  August 4, 2017
Thomas B. Miller   (Principal Financial and Accounting Officer)    
     

/s/ Robert J, Greenberg

  Chairman of the Board of Directors   August 4, 2017
Robert J. Greenberg M.D., Ph.D.        
         
    Director   August __, 2017

Gregg Williams

   
     

/s/ William J. Link

  Director   August 4, 2017
William J. Link        
     

/s/ Aaron Mendelsohn

  Director   August 4,  2017
Aaron Mendelsohn        
     

/s/ Matthew Pfeffer

  Director   August 4, 2017
Matthew Pfeffer        

 

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EXHIBIT 5.1

 

Law Offices of Aaron A. Grunfeld & Associates

11111 Santa Monica Boulevard, Suite 1840

Los Angeles, California 90025

 

August 4, 2017

 

Second Sight Medical Products, Inc.

12744 San Fernando Road Suite, 400

Sylmar, California 91342

 

  Re: Second Sight Medical Products, Inc. 
Registration Statement on Form S-8

 

Ladies and Gentlemen:

 

We have acted as a counsel to Second Sight Medical Products, Inc., a California corporation (the “Company” or “Registrant”) in connection with the Registration Statement on Form S-8 (the “Registration Statement”) to be filed by the Company with the Securities and Exchange Commission on or about the date hereof, in connection with the registration under the Securities Act of 1933, as amended (the “Act”), of an aggregate of 2,500,000 shares of common stock (the “Shares”) of Second Sight Medical Products, Inc. (the “Company”), no par value, consisting of (i) 2,000,000 additional shares of common stock of the Company, issuable under the Registrant’s 2011 Equity Incentive Plan, as amended (the “Option Shares”), and (ii) 500,000 shares of common stock of the Company (the “Plan Shares”), issuable under the Registrant’s 2015 Employee Stock Purchase Plan, as amended (the “ESPP”).

 

You have requested our opinion as to the matters set forth below in connection with the Registration Statement.  For purposes of rendering that opinion, we have examined the Plan, the ESPP, the Registration Statement, the Company’s Restated Articles of Incorporation, Amended and Restated Bylaws, and the corporate actions of the Company that provide for the issuance of the Shares, and we have made such other investigation as we have deemed appropriate. We have examined and relied upon certificates of public officials and, as to certain matters of fact that are material to our opinion we have also relied on a certificate of an officer of the Company. 

 

For the purposes of this opinion letter, we have assumed that: (a) each document submitted to us is accurate and complete; (b) each such document that is an original is authentic; (c) each such document that is a copy conforms to an authentic original; (d) all signatures on each such document are genuine; and that (e) the Company is and shall remain at all times a corporation duly incorporated, validly existing and in good standing under the laws of the State of California. We have further assumed the legal capacity of natural persons, and we have assumed that each party to the documents we have examined or relied on has the legal capacity or authority and has satisfied all legal requirements that are applicable to that party to the extent necessary to make such documents enforceable against that party. We have not verified any of those assumptions.

 

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares, when acquired, issued and sold in the manner referred to in the Plan and/or in the ESPP and pursuant to the agreements that accompany the Plan and the ESPP, will be legally and validly issued, fully paid, and nonassessable and have been authorized by all necessary corporate actions of the Company.

 

The opinion expressed herein is limited to the California Corporations Code, including the applicable provisions of the California Constitution and the reported judicial decisions interpreting such law, in each case as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.

 

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion should be inferred or implied beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

 

 

 

 

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Registration Statement to effect registration of the Shares under the Act. In giving such consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations promulgated thereunder.

 

  Very truly yours,
   
  /s/ Law Offices of Aaron A. Grunfeld & Associates

 

 

 

Exhibit 23.1

 

(GUMBINER SAVETT)  

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors

Second Sight Medical Products, Inc.

 

We hereby consent to the use in this Registration Statement on Form S-8 of our report dated March 15, 2017, relating to the consolidated balance sheets of Second Sight Medical Products, Inc. and Subsidiary (the “Company”) as of December 31, 2016 and 2015, and the related consolidated statements of operations, comprehensive loss, stockholders’ equity (deficiency), and cash flows for each of the years in the three-year period ended December 31, 2016, which is incorporated by reference in the Registration Statement. Our report contains an explanatory paragraph regarding the Company’s ability to continue as a going concern.

 

/s/ Gumbiner Savett Inc.

August 4, 2017

Santa Monica, California