As filed with the Securities and Exchange Commission on September 3, 2015
File No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TEARLAB CORPORATION
(Exact name of Registrant as specified in its charter)
| Delaware | 59-343-4771 | |
(State or other jurisdiction of incorporation or organization) |
(I.R.S. Employer Identification Number) |
9980 Huennekens St., Ste 100
San Diego, California 92121
(858) 455-6006
(Address, including zip code and telephone number, of principal executive offices)
TearLab Corporation 2002 Stock Incentive Plan
(Full title of the plan)
Elias Vamvakas
9980 Huennekens St., Ste 100
San Diego, California 92121
(Name and address of agent for service)
(858) 455-6006
(Telephone number, including area code, of agent for service)
Copy to:
Martin J. Waters, Esq.
Wilson Sonsini Goodrich & Rosati, PC
12235 El Camino Real, Suite 200
San Diego, California 92130-3002
(858) 350-2300
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 [X] |
| Non-accelerated filer [ ] (Do not check if a smaller reporting company) | Smaller reporting company [ ] |
| 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 | ||||||||||
| TearLab Corporation. 2002 Stock Incentive Plan | ||||||||||||||
Common Stock, par value $0.001 per share | 1,000,000 shares | (2) | $2.57 | (3) | $ | 2,570,000 | (3) | $ | 298.64 | |||||
| TOTAL | $ | 2,570,000 | $ | 298.64 | ||||||||||
| (1) | This Registration Statement shall be deemed to cover an indeterminate number of additional shares which may be offered and issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
| (2) | Represents an increase in the reserve of shares of the common stock of TearLab Corporation (the “Registrant”) subject to issuance upon the exercise of options granted under the Registrant’s 2002 Stock Incentive Plan. The Registrant previously filed registration statements with respect to shares to be issued under the 2002 Stock Incentive Plan on Form S-8 with the Securities and Exchange Commission on April 29, 2005 (File No. 333-124505), November 6, 2008 (File No. 333-155163), June 6, 2012 (File No. 333-181949), June 7, 2013 (File No. 333-189205), and June 23, 2014 (File No. 333-196984). The contents of these prior registration statements filed on April 29, 2005, November 6, 2008, June 6, 2012 , June 7, 2013, and June 23, 2014 are incorporated herein by reference pursuant to General Instruction E of Form S-8. |
| (3) | Estimated solely for purposes of calculating the registration fee in accordance with paragraphs (c) and (h) of Rule 457 under the Securities Act of 1933, as amended, based upon the average of the reported high and low sales price of the shares of the Registrant’s common stock on September 1, 2015 on The NASDAQ Capital Market. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The information specified in Item 1 and Item 2 of Part I of Form S-8 is omitted from this Registration Statement on Form S-8 (the “Registration Statement”) in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I of Form S-8 will be delivered to the participants in the equity benefit plans covered by this Registration Statement as specified by Rule 428(b)(1) under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the SEC, are specifically incorporated by reference in this Registration Statement:
| (a) | The Registrant’s Annual Report on Form 10-K for the year ended December 31, 2014, which contains the Registrant’s audited financial statements for such period, as filed with the SEC on March 13, 2015. | |
| (b) | All other reports filed by the Registrant under Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended (the “Securities Exchange Act of 1934”), since December 31, 2014. | |
| (c) | The description of the securities contained in the registration statement on Form 8-A filed with the SEC on November 17, 2004, including any amendment or report filed for the purpose of updating such description. | |
| (d) | The registration statements on Form S-8 with respect to shares of common stock to be issued under the Registrant’s 2002 Stock Incentive Plan, filed with the SEC on April 29, 2005, November 6, 2008, June 6, 2012, June 7, 2013 and June 23, 2014. |
In addition, all reports and documents filed by the Registrant under Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities being offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in and to be part of this Registration Statement from the date of filing of each such document (such documents, and the documents enumerated above, being hereinafter referred to collectively as the “Incorporated Documents”).
Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained therein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law authorizes a corporation’s board of directors to grant, and authorizes a court to award, indemnity to officers, directors and other corporate agents.
As permitted by Section 102(b)(7) of the Delaware General Corporation Law, the Registrant’s certificate of incorporation includes provisions that eliminate the personal liability of its directors and officers for monetary damages for breach of their fiduciary duty as directors and officers.
In addition, as permitted by Section 145 of the Delaware General Corporation Law, the certificate of incorporation and bylaws of the Registrant provide that:
The Registrant shall indemnify its directors and officers for serving the Registrant in those capacities or for serving other business enterprises at the Registrant’s request, to the fullest extent permitted by Delaware law. Delaware law provides that a corporation may indemnify such person if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the Registrant and, with respect to any criminal proceeding, had no reasonable cause to believe such person’s conduct was unlawful.
The Registrant may, in its discretion, indemnify employees and agents in those circumstances where indemnification is permitted by applicable law.
The Registrant is required to advance expenses, as incurred, to its directors and officers in connection with defending a proceeding, except that such director or officer shall undertake to repay such advances if it is ultimately determined that such person is not entitled to indemnification.
The Registrant will not be obligated pursuant to the bylaws to indemnify a person with respect to proceedings initiated by that person, except with respect to proceedings authorized by the Registrant’s Board of Directors or brought to enforce a right to indemnification.
The rights conferred in the certificate of incorporation and bylaws are not exclusive, and the Registrant is authorized to enter into indemnification agreements with its directors, officers, employees and agents and to obtain insurance to indemnify such persons.
The Registrant also maintains directors and officers insurance to insure such persons against certain liabilities. These indemnification provisions and any indemnification agreements entered into between the Registrant and its officers and directors may be sufficiently broad to permit indemnification of the Registrant’s officers and directors for liabilities (including reimbursement of expenses incurred) arising under the Securities Act of 1933.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
A list of exhibits included as part of this Registration Statement is set forth in the Exhibit Index to this Registration Statement.
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; | |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; | |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement; | |
| provided, however, that paragraphs (1)(i) and (1)(ii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the Registration Statement; | ||
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; | |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and | |
| (4) | That, for the purpose of determining liability of the Registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities: the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
| (i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; | |
| (ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; | |
| (iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and | |
| (iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in such Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in such Act and will be governed by the final adjudication of such issue.
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 San Diego, California, on September 3, 2015.
| TEARLAB CORPORATION | ||
| By: | /s/ Wes Brazell | |
| Wes Brazell | ||
| Chief Financial Officer | ||
KNOW ALL PERSONS BY THESE PRESENTS, that person whose signature appears below constitutes and appoints Elias Vamvakas and Wes Brazell and each of them, as his true and lawful attorney-in-fact and agent with full power of substitution, for him 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 attorney-in-fact, proxy and agent 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 might or could do in person, hereby ratifying and confirming all that said attorney-in-fact, proxy and agent, 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, this Registration Statement has been signed below by the following persons in the capacities listed below and on September 3, 2015.
| Signature | Title | Date | ||
| /s/ Elias Vamvakas | Chairman and Chief Executive Officer | September 3, 2015 | ||
| Elias Vamvakas | ||||
| /s/ Wes Brazell | Chief Financial Officer | September 3, 2015 | ||
| Wes Brazell | ||||
| /s/ Anthony E. Altig | Director | September 3, 2015 | ||
| Anthony E. Altig | ||||
| /s/ Thomas N. Davidson, Jr. | Director | September 3, 2015 | ||
| Thomas N. Davidson, Jr. | ||||
| /s/ Adrienne L. Graves | Director | September 3, 2015 | ||
| Adrienne L. Graves | ||||
| /s/ Richard L. Lindstrom | Director | September 3, 2015 | ||
| Richard L. Lindstrom | ||||
| /s/ Donald Rindell | Director | September 3, 2015 | ||
| Donald Rindell | ||||
| /s/ Paul M. Karpecki | Director | September 3, 2015 | ||
| Paul M. Karpecki | ||||
| /s/ Brock Wright | Director | September 3, 2015 | ||
| Brock Wright |
EXHIBIT INDEX
Exhibit Number |
Description | |
| 5.1 | Opinion of Wilson Sonsini Goodrich & Rosati, P.C. | |
| 10.1 | TearLab Corporation 2002 Stock Incentive Plan (incorporated by reference to Exhibit 10.1 to the Registrant’s Quarterly Report on Form 10-Q filed on August 7, 2015) | |
| 23.1 | Consent of Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Wilson Sonsini Goodrich & Rosati, P.C. (included in Exhibit 5.1) | |
| 24.1 | Powers of Attorney (included on the signature page of this Registration Statement) |