THE PROXY PROCEDURE

Our board of directors solicits your proxy for the 2023 Annual Meeting of Stockholders (the “Annual Meeting”), and for any postponement or adjournment of the Annual Meeting, for the purposes described in the “Notice of Annual Meeting of Stockholders.” The table below shows some important details about the Annual Meeting and voting. Additional information is available in the “About the Annual Meeting: Questions and Answers” section of the proxy statement immediately below the table. We use the terms “Vivani,” “the Company,” “we,” “our” and “us” in this Proxy Statement to refer to Vivani Medical, Inc., a California corporation.

This Proxy Statement and the accompanying proxy card are first being mailed,delivered, on or about April [  ], 2019,28, 2023, to owners of shares of common stock of Second SightVivani Medical, Products, Inc. (referred to in this Proxy Statement as “we,” “us,” “Second Sight” or the “Company”) in connection with the solicitation of proxies by our board of directors (“Board”) for our Annual Meeting of shareholders to be held on June 4, 201915, 2023 at 10:00 a.m. PDTPacific Time online at Second Sight Medical Products, Inc. offices, 12744 San Fernando Road, Suite 400, Sylmar, California, USA, 91342 (which we refer to as the “Annual Meeting”).www.proxydocs.com/VANI. The Annual Meeting will be a completely virtual meeting, which will be conducted via live audio webcast. This proxy procedure permits all shareholders, many of whom are unable to attend the Annual Meeting,stockholders to vote their shares at the Annual Meeting. Our Board encourages you to read this document thoroughly and to take this opportunity to vote on the matters to be decided at the Annual Meeting.

IMPORTANT NOTICE

WHETHER OR NOT YOU PLAN TO ATTEND THE ANNUAL MEETING, WE REQUEST THAT YOU MARK, DATE AND SIGN THE ENCLOSED PROXY CARD AND RETURN IT AS PROMPTLY AS POSSIBLE IN THE ENCLOSED ENVELOPE. SIGNING AND RETURNING A PROXY WILL NOT PREVENT YOU FROM VOTING IN PERSON AT THE MEETING.

THANK YOU FOR ACTING PROMPTLY.

IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON JUNE 4, 2019:

TheImportant Notice Regarding the Availability of Proxy Materials for the 2023 Annual Meeting Proxy Statement

This proxy statement and 2018the 2022 Annual Report are available for viewing, printing and downloading at www.proxydocs.com/VANI and on Form 10-K may also be accessed viathe “Investors” section of our website at www.secondsight.comwww.vivani.com. Certain documents referenced in the proxy statement are available on our website. However, we are not including the information contained on our website, or any information that may be accessed by links on our website, as part of, or incorporating it by reference into, this Proxy Statement..

Second Sight Medical Products, Inc.

12744 San Fernando Road, Suite 400

Sylmar, California 91342

(818) 833-5000

PROXY STATEMENT

ANNUAL MEETING OF SHAREHOLDERS

TO BE HELD AT 10:00 A.M. ON JUNE 4, 2019

INTRODUCTION

This Proxy Statement and the accompanying Proxy Card is first being mailed on or about April [ ], 2019. We are sending it to you to solicit proxies for voting at the Annual Meeting of our shareholders.

ABOUT THE ANNUAL MEETING: QUESTIONS AND ANSWERS

Proxy Materials

Second Sight Medical Products, Inc.

12744 San Fernando Road, Suite 400What is the purpose of complying with the SEC’s “notice and access” rules?

Sylmar, California 91342

Corporate Secretary

Second Sight Medical Products, Inc.

12744 San Fernando Road, Suite 400

Sylmar, California 91342

Alternatively, a copyWe believe compliance with the SEC’s “notice and access” rules allows us to provide our stockholders with the materials they need to make informed decisions, while lowering the costs of printing and delivering those materials and reducing the environmental impact of our Form 10-K is available atAnnual Meeting. However, if you would prefer to receive printed proxy materials, please follow the Investor Relations section ofinstructions included in the Notice. If you have previously elected to receive our website: http://investors.secondsight.com/sec-filingsproxy materials electronically, you will continue to receive these materials electronically unless you elect otherwise.

Additionally, we will furnish any exhibit to our Form 10-K for 2018 if specifically requested.

Voting Information

Proposal 1 — To elect five directors from the nominees named in this Proxy Statement to hold office until our 2020 annual meeting of shareholders and until their successors are duly elected and qualified, subject to earlier resignation or removal;

Proposal 2 — To approve an amendment to the Restated Articles of Incorporation of the Company to increase the authorized shares of common stock of the Company from 200,000,000 to 300,000,000; and

Proposal 3 — To ratify on an advisory basis the appointment of Gumbiner Savett Inc. as our independent registered public accounting firm for the fiscal year ending December 31, 2019.

We will also consider any other items of business that properly comes beforeon the Annual Meeting, or any adjournment thereof or postponement thereof. As of the Record Date we are not aware ofagenda?

If any other matters to be submitted for consideration at the Annual Meeting. If anyitems of business or other matters are properly brought before the Annual Meeting, your proxy gives discretionary authority to the

persons named on the enclosed proxy card will vote the shares as recommended by the Board,with respect to those items of business or if no recommendation is given, in their own discretion.

For a more detailed discussion of each of these proposals, please see the information included elsewhere in this proxy statement relating to these proposals.

If you sign and return your proxy card but do not specify how you want to vote your shares, the persons named as proxy holders on the proxy card willintend to vote the proxy in accordance with the recommendations of the Board.

On the Record Date, the Company had approximately 124,197,961 shares of common stock issued and outstanding.

Voteproperly presented by Internet.  You can vote via the Internet by following the instructions on your proxy card. You will need to use the control number appearing on your proxy card to vote via the Internet. You can use the Internet to transmit your voting instructions up until 11:59 p.m. Eastern Time on Monday, June 3, 2019. Internet voting is available 24 hours a day. If you vote via the Internet, you do not need to vote in person or return a proxy card.

Vote by Mail.  If you received a printed proxy card, you can vote by marking, dating and signing it, and returning it in the postage-paid envelope that is provided. Please mail your proxy card promptly to ensure that it is received before closing of the pollsothers for action at the Annual Meeting.

Vote in Person

Who is entitled to vote at the Meeting.  If you attendAnnual Meeting?

Holders of our common stock at the Annual Meetingclose of business on the Record Date are entitled to notice of, and plan to vote in person, we will provide you with a ballot at, the Annual Meeting. IfEach stockholder is entitled to one vote for each share of our common stock held as of the Record Date. You may also cumulate your shares are registered directly in your name, you are consideredvotes with respect to the shareholderelection of record and you havedirectors. See “Is cumulative voting permitted with respect to the right to vote in person atelection of directors” below.

A complete list of the Annual Meeting. If your shares are held in the name of your broker or other nominee, you are considered the beneficial owner of shares held in street name. As a beneficial owner, if you wishstockholders entitled to vote at the Annual Meeting you will need to bringbe available at our headquarters, located at 5858 Horton Street, Suite 280, Emeryville, CA 94608, during regular business hours for the ten days prior to the Annual Meeting a legal proxy from your broker or other nominee authorizing you to vote those shares.

If you vote by Internet or by mail, youMeeting. This list will also be designating Will McGuire, our President and Chief Executive Officer, and/or John T. Blake, our Chief Financial Officer and Corporate Secretary, as your proxy(ies). They may act together or individually on your behalf and will have the authority to appoint a substitute to act as proxy.

Submitting a proxy will not affect your right to attendavailable during the Annual Meeting andat this location. Stockholders may examine the list for any legally valid purpose related to the Annual Meeting.

Is cumulative voting permitted with respect to the election of directors?

Yes. You may choose to cumulate your vote in person. If yourthe election of directors. Cumulative voting applies only to the election of directors and allows you to allocate among the director nominees, as you see fit, the total number of votes equal to the number of director positions to be filled multiplied by the number of shares you hold. For example, if you own 100 shares of stock and there are held in the name of a bank, broker or other nominee, you will receive separate voting instructions from your bank, broker or other nominee describing howfive directors to vote your shares. The availability of Internet voting will depend on the voting process of your bank, broker or other nominee. Please check with your bank, broker or other nominee and follow the voting instructions it provides.

For the other items of business, you may vote “FOR,” “AGAINST”allocate 500 “FOR” votes (5 times 100) among as few or “ABSTAIN.”

If you are the beneficial owner of shares held in the name of a broker, trustee or other nominee and do not provide that broker, trustee or other nominee with voting instructions, your shares may constitute “broker non-votes.” Generally, broker non-votes occur on a matter when a broker is not permitted to vote on that matter without instructions from the beneficial owner and instructions are not given. Under the rulesas many of the New York Stock Exchange, brokers, trustees or otherfive nominees may generally vote on routine matters but cannot vote on non-routine matters. Only Proposal No. 3 (ratifying the appointment of the independent registered public accounting firm) is considered a routine matter. The other proposals are not considered routine matters, and without your instructions, your broker cannot vote your shares. In tabulating the voting results for any particular proposal, shares that constitute broker non-votes are not considered entitled to vote on that proposal. Thus, broker non-votes will not affect the outcome of any matter beingbe voted on at the meeting. If you provide specific instructions with regard to certain items, your shares will be votedAnnual Meeting as you instruct on such items. If you vote by proxy card or voting instruction card and sign the card without giving specific instructions,choose. You may not cumulate your shares will be voted in accordance with the recommendations of the Board (FOR all of our nominees to the Board, FOR the approval of an amendment to the Restated Articles of Incorporation of the Company to increase the authorized shares of common stock of the Company from 200,000,000 to 300,000,000, and FOR ratification of the appointment of our independent registered public accounting firm).votes withheld against a nominee.

If you are a shareholderstockholder of record and choose to cumulate your votes, you will need to submit a proxy card and make an explicit statement of your intent to cumulate your votes by so indicating in writing on the proxy card. If you hold shares beneficially through a broker, trustee or other nominee and wish to cumulate votes, you should contact your broker, trustee or nominee.

If you vote by proxy card or voting instruction card and sign your card with no further instructions, Will McGuireAdam Mendelsohn or John T. Blake,Brigid Makes, as proxy holders, may cumulate and cast your votes in favor of the election of some or all of the applicable nominees in their sole discretion, except that none of your votes will be cast for any nominee as to whom you vote against or abstain from voting.withheld a vote.

VStock Transfer, LLC

18 Lafayette Place

Woodmere, New York 11598

Phone: (212) 828-8436

If you are considered the shareholderStockholder of record,Record with respect to those shares. As the Stockholder of Record, you may changehave the right to grant your vote by: (1) submitting avoting proxy at a later date viadirectly to the internet or telephone, or by signing and delivering aindividuals listed on the proxy card relatingor to the same shares and bearing a later date than the date of the previous proxy prior to the vote at the Annual Meeting in which case your later-submitted proxy will be recorded, and your earlier proxy revokedvia live webcast.; (2) providing a written notice of revocation to the Corporate Secretary at the address below prior to

Beneficial Owners. If your shares being voted;are held in a stock brokerage account or (3) participatingby a bank or other nominee on your behalf, you are considered the Beneficial Owner of shares held in “street name.” As the Beneficial Owner, you have the right to direct your broker or nominee how to vote your shares by following the voting instructions your broker or other nominee provides. In general, if you do not provide your broker or nominee with instructions on how to vote your shares, your broker or nominee may, in its discretion, vote your shares with respect to routine matters (e.g., the ratification of the appointment of our independent auditor), but may not vote your shares with respect to any non-routine matters (e.g., the election of directors). Please see “What if I do not specify how my shares are to be voted?” for additional information.

How can I participate in the Annual Meeting?

Our stockholders may participate in the Annual Meeting by visiting the following website: www.proxydocs.com/VANI. You will need the 12-digit control number included on your proxy card to attend and voting your shares electronically duringvote at the Annual Meeting. ParticipationIf you are the Beneficial Owner of your shares, your 12-digit control number may be included in the voting instructions form that accompanied your proxy materials. If your nominee did not provide you with a 12-digit control number in the voting instructions form that accompanied your proxy materials, you may be able to log onto the website of your nominee prior to the start of the Annual Meeting, which will not causeautomatically populate your previously granted proxy to be revoked unless you specifically make that request. For shares you hold beneficially12-digit control number in the namevirtual Annual Meeting interface. Stockholders who have obtained a 12-digit control number as described above may vote or submit questions while participating in the live webcast of the Annual Meeting. However, even if you plan to attend the Annual Meeting virtually, we recommend that you vote your shares in advance, so that your vote will be counted if you later decide not to attend the Annual Meeting via live webcast.

How do I vote and what are the voting deadlines?

Stockholders of Record. Stockholders of Record can vote by proxy or by attending the Annual Meeting virtually by visiting www.proxydocs.com/VANI, where votes can be submitted via live webcast. If you vote by proxy, you can vote by Internet, telephone or by mail as described below.

Beneficial Owners. If you are the Beneficial Owner of shares held of record by a broker trustee or other nominee, you will receive voting instructions from your broker or other nominee. You must follow the voting instructions provided by your broker or other nominee in order to instruct your broker or other nominee how to vote your shares. The availability of telephone and Internet voting options will depend on the voting process of your broker or other nominee. As discussed above, if you received your 12-digit control number in the voting instructions form that accompanied your Notice or your proxy materials, or if you are able to link through to the Annual Meeting from the website of your nominee and populate your 12-digit control number in the virtual Annual Meeting interface, you will be able to vote virtually at the Annual Meeting.

May I change my vote or revoke my proxy?

Stockholders of Record. If you are a Stockholder of Record, you may revoke your proxy or change your proxy instructions at any time before your proxy is voted at the Annual Meeting by:

Beneficial Owners. If you are the beneficial owner of your shares, you must contact the broker or other nominee holding your shares and follow their instructions to change your vote or revoke your proxy.

What is the effect of giving a proxy?

Proxies are solicited by submitting new voting instructions to your broker, trustee or nominee, orand on behalf of our board of directors. The persons named on the proxy card have been designated as proxy holders by participating in personour board of directors. When a proxy is properly dated, executed and returned, the shares represented by the proxy will be voted at the Annual Meeting.

Corporate Secretary

Second Sight Medical Products, Inc.

12744 San Fernando Road, Suite 400

Sylmar, California 91342

Meeting in accordance with the instruction of the stockholder. If no specific instructions are given, however, the shares will be voted in accordance with the recommendations of our board of directors (as shown on the first page of the proxy statement). If any matters not described in the proxy statement are properly presented at the Annual Meeting, Informationthe proxy holders will use their own judgment to determine how to vote your shares. If the Annual Meeting is postponed or adjourned, the proxy holders can vote your shares on the new meeting date, unless you have properly revoked your proxy, as described above.

Shareholder Proposals, Director Nominations and Related Bylaw Provisions

Corporate Secretary

Second Sight Medical Products, Inc.

12744 San Fernando Road, Suite 400

Sylmar, California 91342

Deadlines for the nominationmeeting to be properly held under our bylaws and Delaware law. A majority of director candidatesthe shares of common stock outstanding and entitled to vote, by proxy or at the Annual Meeting via live webcast, constitutes a quorum for the transaction of business at the Annual Meeting. As noted above, as of the Record Date, there were at total of 50,788,699 shares of common stock outstanding, which means that at least 25,394,351 shares of common stock must be represented by proxy or virtually via live webcast at the Annual Meeting to have a quorum. If there is no quorum, a majority of the shares present at the Annual Meeting may adjourn the meeting to a later date.

Abstentions and broker non-votes will be counted towards the quorum requirement.

What are discussed below.the effects of abstentions and broker non-votes?

A shareholder

With respect to Proposal No. 1, you may send a recommended director candidate’s name and informationvote (i) FOR any or all of the nominees, or (ii) WITHHOLD your vote as to any or all nominees. The five nominees receiving the most FOR votes will be elected. Cumulative voting is permitted with respect to the Board at any time. Generally,election of directors. See “Is cumulative voting permitted with respect to the election of directors?” above. If you WITHHOLD your vote as to all nominees, your vote will be treated as if you had ABSTAINED from voting on Proposal No. 1, and your abstention will have no effect on the outcome of the vote.

If you ABSTAIN from voting on Proposal Nos. 2 or 5, the abstention will have no effect, unless there are insufficient votes in favor of the proposal, such proposed candidatesthat the affirmative votes constitute less than a majority of the required quorum. In such cases, abstentions will have the same effect as a vote against such proposals.

If you ABSTAIN from voting on Proposals Nos. 3, 4A, 4B, 4C, 4D, 4E, or 4F, the abstention will have the same effect as a vote AGAINST the proposal. 

How are consideredproxies solicited for the Annual Meeting and who is paying for the solicitation?

The board of directors is soliciting proxies for use at the first or second Board meeting prior toAnnual Meeting by means of this proxy statement. We will bear the issuanceentire cost of the proxy statementsolicitation, including the preparation, assembly, printing, mailing and distribution of the proxy materials. Copies of solicitation materials will also be made available upon request to brokers and other nominees to forward to the Beneficial Owners of the shares held of record by the brokers or other nominees. We will reimburse brokers or other nominees for our Annual Meeting.reasonable expenses that they incur in sending these proxy materials to Beneficial Owners.

Our Bylaws alsoThis solicitation of proxies may be supplemented by solicitation by telephone, electronic communication, or other means by our directors, officers, employees or agents. No additional compensation will be paid to these individuals for any such services, although we may reimburse such individuals for their reasonable out-of-pocket expenses in connection with such solicitation. We do not plan to retain a proxy solicitor to assist in the solicitation of proxies.

Is my vote confidential?

Proxy instructions, ballots, and voting tabulations that identify individual stockholders are handled in a manner that protects your voting privacy. Your vote will not be disclosed either within Vivani or to third parties, except as necessary to meet applicable legal requirements, to allow for the tabulation of votes and certification of the vote, or to facilitate a successful proxy solicitation.

Will members of the board of directors attend the Annual Meeting?

We encourage our board members to attend the Annual Meeting. Because this year’s Annual Meeting will be completely virtual, those board members who do attend will not be available onto answer questions from stockholders.

I share an address with another stockholder, and we received only one paper copy of the SEC websiteproxy materials. How may I obtain an additional copy of the proxy materials?

We have adopted an SEC-approved procedure called “householding,” under which we can deliver a single copy of the Notice and, if applicable, the proxy materials to multiple stockholders who share the same address unless we received contrary instructions from one or more of the stockholders. This procedure reduces our printing and mailing costs. Stockholders of Record who participate in householding will be able to access and receive separate proxy cards. Upon written or oral request, we will promptly deliver a separate copy of the Notice and, if applicable, the proxy materials to any stockholder at a shared address to which we delivered a single copy of these documents. To receive a separate copy, or, if you are receiving multiple copies, to request that Vivani only send a single copy of the next year’s Notice and, if applicable, the proxy materials, you may contact us as Exhibit 3.2follows:

Vivani Medical, Inc.
5858 Horton Street, Suite 280

Emeryville, CA 94608
(818) 833-5000

Stockholders who hold shares in street name may contact their brokerage firm, bank, broker-dealer or other nominee to our Registration Statement on Form S-1 filed on August 12, 2014.request information about householding.

Further Questions

GOVERNANCE OFOF THE COMPANY

Our business, property and affairs are managed by, or under the direction of, our Board, in accordance with the California Corporations Code and our Bylaws. Members of the Board are kept informed of our business through discussions with the Chief Executive Officer and other key members of management, by reviewing materials provided to them by management, and by participating in regular and special meetings of the Board and its Committees.

Shareholders Stockholders may communicate with the members of the Board, either individually or collectively, or with any independent directors as a group by writing to the Board at 12744 San Fernando Road,5858 Horton Street, Suite 400, Sylmar, California 91342.280, Emeryville, CA 94608. These communications will be reviewed by the office of the Corporate Secretary who, depending on the subject matter, will (a) forward the communication to the director or directors to whom it is addressed or who is responsible for the topic matter, (b) attempt to address the inquiry directly (for example, where it is a request for publicly available information or a stock related matter that does not require the attention of a director), or (c) not forward the communication if it is primarily commercial in nature or if it relates to an improper or irrelevant topic. At each meeting of the Nominating and Governance Committee, the Corporate Secretary presents a summary of communications received and will make those communications available to any director upon request.

Independence of Directors

The Nasdaq Marketplace Rules require a majority of a listed company’s Board of Directors to be comprised of independent directors. In determiningaddition, the Nasdaq Marketplace Rules require that, subject to specified exceptions, each member of a listed company’s audit, compensation and nominating and corporate governance committees be independent and that audit committee members also satisfy independence criteria set forth in Rule 10A-3 under the Exchange Act.

Under Rule 5605(a)(2) of the Nasdaq Marketplace Rules, a director will only qualify as an “independent director” if, in the opinion of our Board of Directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities of a director. In order to be considered independent for purposes of Rule 10A-3 of the Exchange Act, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the Board of Directors, or any other Board committee, accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company or any of its subsidiaries or otherwise be an affiliated person of the listed company or any of its subsidiaries.

Our Board of Directors has reviewed the composition of our Board of Directors and the independence of each director. Based upon information requested from and provided by each director concerning his or her background, employment and affiliations, including family relationships, our directors, we apply the definition of “independent director” provided under the listing rules of The NASDAQ Stock Market LLC (“NASDAQ”). After considering all relevant facts and circumstances, the Board affirmativelyhas determined that alleach of the directors currently serving on the Board including those nominated for election at the Annual Meeting, with the exception of Will McGuire,Adam Mendelsohn who is employed as our Chief Executive Officer of the Company, and President,Aaron Mendelsohn, who is Adam Mendelsohn’s father, are independent directors under NASDAQ’s rules.

Our Board of Directors also determined that the directors who serve on our audit committee, our compensation committee, and our nominating and corporate governance committee satisfy the independence standards for such committees established by the SEC and the Nasdaq Marketplace Rules, as applicable. In making such determinations, our Board of Directors considered the relationships that each such non-employee director has with our company and all other facts and circumstances our Board of Directors deemed relevant in determining independence, including the beneficial ownership of our capital stock by each non-employee director.

Board Diversity

Our Nominating and Governance Committee believes that backgrounds and qualifications of the directors considered as a group should provide a significant breadth of experience, knowledge and abilities that shall assist the Board in fulfilling its responsibilities. Although the Nominating and Corporate Governance Committee does not have a formal diversity policy and does not follow any ratio or formula with respect to diversity in order to determine the appropriate composition of the Board, the Nominating and Corporate Governance Committee is committed to creating a Board that promotes our strategic objectives and fulfills its responsibilities to our stockholders, and considers diversity (including diversity of gender, race, ethnicity, age, sexual orientation and gender identity) education, professional experience, and differences in viewpoints and skills when evaluating proposed director candidates.

We comply with Nasdaq Rule 5605 by having one diverse director who self-identifies as female. As required by Nasdaq Rule 5606, we are providing additional information about the gender and demographic diversity of our directors in the format required by such rule. The information in the matrix below is based solely on information provided by our directors about their gender and demographic self-identification.

Board Meetings and Committees of our Board

The Board has three standing committees each of which has the composition described below and responsibilities that satisfy the independence standards of the Securities Exchange Act of 1934 and NASDAQ’s rules: the Audit Committee, the Compensation Committee, and the Nominating and Governance Committee. Mr. Matthew Pfeffer is Chairman of the Audit Committee, Dr. William Link is Chairman of the Compensation Committee, and of the Nominating and Governance Committee. During the year ended December 31, 2018,2022, the Board held nine7 meetings, the Audit Committee held four4 meetings, the Compensation Committee held two4 meetings, and the Nominating and Governance Committee held no meetings.1 meeting that was conducted through unanimous written consent. Each of our directors attended at least 75% of the combined Board meetings and meetings of the Board committee(s)committees of which he isthey are a member. We do not have a policy with regard to Board attendance at the Annual Meeting.

Committees of the Company’s Board of Directors

Our Board of Directors has an Audit Committee, a Compensation Committee and a Corporate Governance and Nominating Committee, each of which has the composition and the responsibilities described below.

Audit Committee

The Audit Committee consistsis comprised of Matthew Pfeffer, William Link,Dean Baker, as chair, Gregg Williams and Aaron Mendelsohn, three non-employee directors, allAlexandra Larson, each of whom areis “independent” as defined under section 5605(a)(2) of the NASDAQNasdaq Listing Rules. Mr. Pfeffer is the chair of the Audit Committee. In addition, the Boardboard of directors has determined that Mr. Pfeffer qualifies asBaker is an “audit committee financial expert” as defined in the rulesItem 407(d)(5)(ii) of Regulation S-K promulgated under the Securities and Exchange Commission (SEC). The Audit Committee met four times during 2018 with all members in attendance at the meetings, except for Mr. Mendelsohn who was not in attendance at one of the meetings.Act. The role of the Audit Committee is to:

A copy of the charter of the Audit Committee is available on our website at www.secondsight.comwww.vivani.com (under “Investors – Corporate Governance”).

Compensation Committee

The Compensation Committee consistsis comprised of William Link,Dean Baker, as chair, Alexandra Larson and Gregg Williams, and Matthew Pfeffer, three non-employee directors, each of whom we deem to be “independent” as defined in section 5605(a)(2) of the NASDAQNasdaq Listing Rules. The Compensation Committee met two times during 2018 with all members in attendance at the meetings.

The role of the Compensation Committee is to:

A copy of the charter of the Compensation Committee is available on ourVivani’s website at www.secondsight.comwww.vivani.com (under “Investors – Corporate “Investors—Governance”).

The Compensation Committee may form and delegate a subcommittee consisting of one or more members to perform the functions of the Compensation Committee. The Compensation Committee may engage outside advisers, including outside auditors, attorneys and consultants, as it deems necessary to discharge its responsibilities. The Compensation Committee has sole authority to retain and terminate any compensation expert or consultant to be used to provide advice on compensation levels or assist in the evaluation of director, President/Chief Executive Officer or senior executive compensation, including sole authority to approve the fees of any expert or consultant and other retention terms. In addition, the Compensation Committee considers, but is not bound by, the recommendations of ourVivani’s Chief Executive Officer with respect to the compensation packages of our other executive officers.

Nominating and Governance Committee

The Nominating and Corporate Governance Committee consistsis comprised of William Link and Gregg Williams, two non-employee directors,as chair, Dean Baker and Alexandra Larson, each of whom we deemed to be “independent” as defined in section 5605(a)(2) of the NASDAQNasdaq Listing Rules. The Nominating and Governance Committee did not meet during 2018.

The role of the Nominating and Governance Committee is to:

A copy of the charter of the Nominating and Governance Committee is available on ourVivani’s website www.secondsight.comwww.vivani.com (under “Investors – Corporate—  Governance”).

Policy with Regard to Security Holder Recommendations

The Nominating and Governance Committee does not presently havehas a policy with regardregards to consideration of any director candidates recommended by security holders. Nostockholders. For the recommendation of a security holder (other than membersto be considered under this policy, the recommending stockholder or group of stockholders must have held at least three percent of Vivani’s voting common stock for at least one year as of the date the recommendation was made. For each annual meeting of stockholder, the Nominating and Governance Committee) has recommendedCommittee will accept for consideration only one recommendation from any stockholder or affiliated group of stockholders. The Nominating and Governance Committee will also consider the extent to which the stockholder making the nominating recommendation intends to maintain its ownership interest in Vivani. Any director nominated must represent the interests of all stockholders and not serve for the purpose of favoring or advancing the interests of any particular stockholder group or other constituency. All recommendations submitted by stockholders will be considered in the same manner and under the same process as any other recommendations submitted from other sources.

All stockholder nominating recommendations must be in writing. Submissions must be made by mail, courier or personal delivery, addressed to the Nominating and Governance Committee care of Vivani’s corporate secretary at Vivani’s principal offices. Recommendations must include certain information regarding the recommending stockholder(s) and the proposed nominee(s). The recommending stockholder(s) must state whether, in the view of the stockholder(s), the nominee(s), if elected, would represent all stockholders and not serve for the purpose of advancing or favoring any particular stockholder(s) or other constituency of Vivani. The nominating recommendation must be accompanied by the written consent of the proposed nominee(s) to: (a) be considered by the Nominating and Governance Committee and interviewed, and (b) if nominated and elected, to serve as a candidatedirector.

If the Reincorporation proposal (Proposal No. 3) is approved by stockholders at the 2023 Annual Meeting, the Company’s Delaware Bylaws will provide further requirements for advance notice of stockholder nominations.

Policy on Trading, Pledging and Hedging of Company Stock

Our board of directors have adopted an Insider Trading Policy that applies to date.our board of directors, our officers and employees, the officers and employees of our subsidiaries, as well as to family members, other members of a person’s household, and entities controlled by a persons covered under the Insider Trading Policy. Certain transactions in our securities (such as purchases and sales of publicly traded put and call options, and short sales) create a heightened compliance risk or could create the appearance of misalignment between management and stockholders. In addition, securities held in a margin account or pledged as collateral may be sold without consent if the owner fails to meet a margin call or defaults on the loan, thus creating the risk that a sale may occur at a time when an officer or director is aware of material, non-public information or otherwise is not permitted to trade in Company securities. Therefore, as part of our Insider Trading Policy, we expressly prohibit the above-mentioned persons from engaging in certain prohibited transactions, including short sales, purchases or sales of derivative securities or hedging transactions, the use of our securities as collateral in a margin account, and pledging of our securities. 

Director Qualifications and Diversity

The Board seeks independent directors who represent a diversity of backgrounds and experiences that will enhance the quality of the Board’s deliberations and decisions who each will represent the best interests of the CompanyVivani and its shareholders.stockholders. Candidates should have substantial experience with one or more publicly traded companies or should have achieved a highprominent level of distinction in their chosen fields. The Board is particularly interested in maintaining a mix that includes individuals who are active or retired executive officers and senior executives, particularly those with experience in medical devices, biotechnology, intellectual property, early stageearly-stage technology companies, research and development, strategic planning, business development, compensation, finance, accounting or banking.

Our

The Board believes that the directors nominated collectively have the experience and skills effectively to oversee the management of the Company,Vivani, including a high level of personal and professional integrity, an ability to exercise sound business judgement on a broad range of issues, sufficient experience and background to have an appreciation of the issues facing the Company,Vivani, and a willingness to devote the necessary time to Board duties.

Compensation Committee Interlocks

Role of Board in Risk Oversight

Enterprise risks are identified and Insider Participation

During 2018, Messrs. William Link, Gregg Williamsprioritized by management and Matthew Pfeffer served on the Compensation Committee. None of these individuals has ever been an officer or employee of ours. In addition, none of our executive officers serves aseach prioritized risk is assigned to a member of the board of directors or compensation committee of any entity that has one or more executive officers serving as a member of our Board or the full board for oversight as follows:

Full Board — Risks and exposures associated with strategic, financial and execution risks and other current matters that may present material risk to Vivani’s operations, plans, prospects or reputation.

Audit Committee — Risks and exposures associated with financial matters, particularly financial reporting, tax, accounting, disclosure, internal control over financial reporting, financial policies, investment guidelines and credit and liquidity matters.

Nominating and Governance Committee — Risks and exposures relating to corporate governance and management and director succession planning.

Compensation Committee.Committee — Risks and exposures associated with leadership assessment and compensation programs and arrangements, including incentive plans that compare to market and target employee retention.

Code of Business Conduct and Ethics

We

The Company adopted a Code of Business Conduct and Ethics (“Code of Ethics”) applicable to ourits principal executive officer and principal financial and accounting officer and any persons performing similar functions.officer. In addition, the Code of Ethics applies to ourVivani’s employees, officers, directors, agents and representatives. The Code of Ethics requires, among other things, that ourVivani’s employees avoid conflicts of interest, comply with all laws and other legal requirements, conduct business in an honest and ethical manner, and otherwise act with integrity and in our best interest. The Code of Ethics is available on our website at www.secondsight.comwww.vivani.com (under “Investors –— Governance — Governance Documents — Code of Business Conduct and Ethics”).

Risk Oversight

Enterprise risks are identified and prioritized by management and each prioritized risk is assigned to a Board committee or the full Board for oversight as follows:

Full Board — Risks and exposures associated with strategic, financial and execution risks and other current matters that may present material risk to our operations, plans, prospects or reputation.

Audit Committee — Risks and exposures associated with financial matters, particularly financial reporting, tax, accounting, disclosure, internal control over financial reporting, financial policies, investment guidelines and credit and liquidity matters.

Nominating and Governance Committee — Risks and exposures relating to corporate governance and management and director succession planning.

Compensation Committee — Risks and exposures associated with leadership assessment and compensation programs and arrangements, including incentive plans.

Board Leadership Structure

The Chairman of the Board presides at all meetings of the Board.

Review, Approval or Ratification of Transactions with Related Persons

The Nominating and Governance Committee reviews issues involving potential conflicts of interest, other than Related Party transactions, which are reviewed by the Audit Committee.

Section 16(a) Beneficial Ownership Reporting Compliance

Section 16(a) of the Exchange Act requires our directors and executive officers, and persons who beneficially own more than 10% of our common stock, to file with the SEC reports about their ownership of common stock and other equity securities of the Company.  Such directors, officers and 10% shareholders are required by SEC regulations to furnish us with copies of all Section 16(a) forms they file.  Based solely on our review of the reports provided to us and on representations received from our directors and executive officers, we believe that all of our executive officers, directors and persons who beneficially own more than 10% of our common stock complied with all Section 16(a) filing requirements applicable to them with respect to transactions during fiscal year 2018.

PROPOSALS

THE BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE FOR EACH OF

PROPOSALS Nos. 1, THROUGH2, 3, 4A to 4F and 5 BELOW.

PROPOSAL No. 1 — ELECTION OF DIRECTORS

Nominees for Election

The Company’s Board of Directors currently has five members. Our Board has nominated our five of our incumbent directors for election at the Annual Meeting to terms expiring at the 20202024 annual meeting of shareholders stockholders and until their successors are duly elected and qualified, subject to earlier resignation or removal.removal. If any nominee is unable or declines to stand for election, which circumstance we do not anticipate, the Board may designate a substitute. In that event, shares represented by proxies may be voted for a substitute nominee.

Our Director Qualifications and Diversity guidelines contain the current Board membership criteria that apply to nominees recommended for a position on the Board. Under those criteria, members of the Board should have the highest professional and personal ethics and values, consistent with our longstanding values and standards. They should have broad experience at the policy-making level in business, government, education, technology or public service. They should be committed to enhancing shareholderstockholder value and should have sufficient time to carry outperform their duties and to provide insight and practical wisdom based on experience. In addition, the Nominating and Governance Committee takes into accountconsiders a potential director’s ability to contribute to the diversity of background and experience represented on the Board, and it reviews its effectiveness in balancing these considerations when assessing the composition of the Board. Directors’ service on other boards of public companies should be limited to a number that permits them, given their individual circumstances, to perform responsibly all director duties. Each director must represent the interests of all of our shareholders.stockholders. Although the Board uses these and other criteria as appropriate to evaluate potential nominees, it has no stated minimum criteria for nominees.

The Board believes that all the nominees named below are highly qualified and have the skills and experience required for effective service on the Board. The nominees’ individual biographies below contain information about their experience, qualifications and skills that led the Board to nominate them:

Jonathan Will McGuire, 56, Chief Executive Officer, President and Director

Biographical information for Mr. McGuire is set forth under “Executive Compensation and Related Information”. Our board believes that Mr. McGuire’s executive and managerial experience together with his leadership skills make him well qualified to continue serving as one(1) Member of our directors.the Audit Committee of the Board of Directors 

William J. Link, Ph.D, 73, Director and Chairman(2) Member of the Compensation Committee

Dr. Link is Founder and Managing Partner of Flying L Partners and a Founder and Managing Director of Versant Ventures. Dr. Link specializes early-stage investing in medical devices. Prior to co-founding Versant Ventures, Dr. Link was a general partner at Brentwood Venture Capital, and has over two decades of operations experience in the healthcare industry. Dr. Link was previously Founder, Chairman, and CEO of Chiron Vision, which was sold to Bausch and Lomb in 1997. Prior to Chiron Vision, Dr. Link founded and served as President of American Medical Optics (AMO), a division of American Hospital Supply Corporation, which was sold to Allergan in 1986. Later, he served on the Board of AMO’s successor company, Advanced Medical Optics (AMO) which was acquired by Abbott in 2009 and then by Johnson and Johnson in 2016.  Before entering the healthcare industry, he was an Assistant Professor in the Department of Surgery at the Indiana University School of Medicine. Dr. Link currently serves on the board of several private companies and three public companies, Edwards Lifesciences, Glaukos, and Second Sight Medical Products. He received his B.S., M.S., and Ph.D. from Purdue University.

Aaron Mendelsohn, 67, Director

Mr. Mendelsohn is a founder and has served as a director of Second Sight since inception. Mr. Mendelsohn served on the board of Advanced Bionics since shortly after its founding in 1993 until its sale in 2004 to Boston Scientific Corp. Mr. Mendelsohn was also a founder and director of Medical Research Group from its inception in 1998 until its sale in 2001 to Medtronic, Inc.  Mr. Mendelsohn previously served on the board of directors for the Alfred E. Mann Institute for Biomedical Engineering at the University of Southern California since its inception in 1998 until mid-2016. Mr. Mendelsohn is a founder and, since 2007, a director of Nanoprecision Holding Company, Inc., a company engaged in manipulating materials at nanometer scale. He is also a founder and director of Nanoprecision Medical, Inc., a drug delivery company working in nanotechnology, since its inception in 2011. Mr. Mendelsohn is a founder and serves as Chairman of the Maestro Foundation since it was organized in 1983. The Maestro Foundation is a leading non-profit musical philanthropic organization which hosts a premier chamber music series and lends professional-level instruments and bows to young, career-bound classical musicians. Mr. Mendelsohn received his B.A. from UCLA and J.D. from Loyola University School of Law Los Angeles. Our Board believes that Mr. Mendelsohn’s business experience, including his experience as a founder, board member and executive officer of medical device companies, combined with his financial experience, business acumen and judgment provide our Board with valuable managerial and operational expertise and leadership skills making him well qualified to continue serving as one of our directors.

Gregg Williams, 60, Chairman of the Board of Directors

(3) Member of the Nominating and Corporate Governance Committee of the Board of Directors 

* Chair of the respective committee.

Gregg Williams:Mr. Williams has served as a member of our Board of Directors since the Merger of our predecessor Second Sight Medical Products, Inc. (“Second Sight”) with Nano Precision Medical, Inc. (“NPM”) (the “Merger”) in 2022. Prior to that Mr. Williams served on the board of Second Sight since June 2009 and was appointed Chairman of ourthe Second Sight board in March 2018. Mr. Williams was also a member of the board of directors of NPM until the Merger in 2022. Mr. Williams is the Chairman, President, and Chief Executive Officer at Williams International Co., LLC (“Williams International”) (www.williams-int.com), a leading developer and manufacturer of gas turbine engines and one of the largest privately owned companies in the aviation industry, positions he has held since July 1999. Previously, Mr. Williams held several key managerial positions within Williams International including serving as its President and Chief Operating Officer, Vice President, Advanced Technology, Director, Program Management and Director, Engineering. In addition, Mr. Williams is Chairman and majority owner of Ramos Arizpe Manufacturing (www.ram-mx.com), a high volumehigh-volume automotive engine parts manufacturing company located in Mexico. Mr. Williams also is a member of the board of directors of Nanoprecision Medical, Inc. (www.nanoprecisionmedical.com), a drug delivery company working in nanotechnology. Mr. Williams received a Bachelor of Science in Mechanical Engineering from the University of Utah and holds numerous patents related to gas turbine engines, turbo machinery, rocket engines and control systems. He is a board member of General Aviation Manufacturers Association and former member of the Henry Ford Hospital Board. We believe Mr. Williams is qualified to serve on our Board due to his business and senior management experience, extensive knowledge of our operations and deep background in technology-focused manufacturing companies which is highly relevant to us.

Aaron Mendelsohn: Mr. Mendelsohn has served as a member of our Board of Trustees. Our Board believesDirectors since the Merger in 2022. He was a founder and has previously served as a director of Second Sight since its inception in 2003 till the Merger in 2022. He was also a founder and director of NPM from 2011 till the Merger in 2022. Mr. Mendelsohn served on the board of Advanced Bionics, a global leader in developing advanced cochlear implant systems, since shortly after its founding in 1993 until its sale in 2004 to Boston Scientific Corp. Mr. Mendelsohn was also a founder and director of Medical Research Group, Inc., a company that designed and manufactured implantable technologies primarily for the treatment of diabetes, from its inception in 1998 until its sale in 2001 to Medtronic, Inc. Mr. Mendelsohn previously served on the board of directors for the Alfred E. Mann Institute for Biomedical Engineering at the University of Southern California since its inception in 1998 until 2016. Mr. Mendelsohn is a founder and has served as Chairman of the Maestro Foundation since it was organized in 1983. The Maestro Foundation is a leading non-profit musical philanthropic organization which hosts a premier chamber music series and lends professional-level instruments and bows to young, career-bound classical musicians. Mr. Mendelsohn received his B.A. from UCLA and J.D. from Loyola University School of Law Los Angeles. We believe that Mr. William’sMendelsohn’s business experience, including his experience as a founder, board member and executive and managerial experience togetherofficer of medical device companies, combined with his financial experience, business acumen, and judgment provide our Board with valuable managerial and operational expertise and leadership skills makemaking him wellprofessionally qualified to continue serving as one of our directors.

Matthew Pfeffer, 61, Director and Chairman of Audit Committee

Mr. PfefferDean Baker:  Dr. Baker has served as a member of our Board of Directors since the boardMerger in 2022. Dr. Baker has served on the Board of directorsDirectors of MannKind CorporationNPM from January 2016 through October 2017,2013 till the Merger in 2022 and currently serves on the Board of Directors of Transonic Imaging, a medical imaging startup, since 2018. Mr. Baker served on the Board of Directors of Advanced Bionics, a global leader in developing advanced cochlear implant systems, prior to its sale to Boston Scientific, a manufacturer of medical devices. In addition, he was the founding director of the Alfred E. Mann Institute for Biomedical Engineering at USC and served for nine years on the Board of Directors (including serving on compensation, audit, and governance committees) for Semtech, a publicly traded semiconductor company. Dr. Baker was also a vice president of Northrop Grumman, a multinational aerospace and defense technology company, for 16 years from 1983 to 1999 including overseeing a division with $1 billion in annual sales. We believe Dr. Baker is qualified to serve on our Board because of his experience as a director on multiple boards and his scientific background.

Alexandra L.P. Larson: Ms. Larson has served as a special advisermember of our Board of Directors since the Merger in 2022. She was previously a director at Second Sight from 2021 until the Merger in 2022. She serves as Senior Vice President and General Counsel of Williams International, a privately held designer and manufacturer in the aerospace and defense industry, since January 2019. Prior to the companyWilliams International, from November 2017 through February 2019.  He2013 to January 2019, Ms. Larson was Legal Director and Associate General Counsel at Amcor, a global packaging company. Ms. Larson also served as Corporate Counsel at Compuware Corporation, a software company with products aimed at the information technology departments of large businesses, from 2012 to 2013, and Associate in the mergers & acquisitions practice of the global law firm Baker and McKenzie, in its New York office, from 2008 to 2012. Ms. Larson has also held roles at the New York Stock Exchange, and the United States Department of Justice, Antitrust Division. Ms. Larson is a graduate of the University of Michigan Law School (Ann Arbor), Hamilton College in Clinton, New York, and the University of Tennessee, Knoxville Haslam College of Business’s Aerospace & Defense MBA Program. We believe Ms. Larson is qualified to serve on our Board due to her legal and business experience, and leadership skills. 

Adam Mendelsohn, Ph.D.:  Dr. Mendelsohn has served as our Chief Executive Officer and as a member of our Board of Directors since the Merger in 2022. Prior to this, Dr. Mendelsohn served as the Chief FinancialExecutive Officer of MannKindNPM between from January 20162009 till 2022. Dr. Mendelsohn received his Ph.D. in bioengineering at the UC San Francisco/UC Berkeley Joint Graduate Group in Bioengineering, Class of 2011, during which he was awarded an NSF fellowship to perform research at Kyoto University and published multiple peer-reviewed articles describing new treatment options for Type 1 diabetes through May 2017, and as Corporate Vice President and Chief Financial Officerthe immuno-isolated transplantation of MannKind from April 2008 until January 2016. Previously, Mr. Pfefferinsulin-producing cells under the direction of Professor Tejal A. Desai. While in graduate school, Dr. Mendelsohn served as Chief Financial Officerthe director for the Venture Innovation Program in Life Sciences and Senior Vicecompleted his certificate in Management of Technology with the Haas School of Business. Dr. Mendelsohn has served as a Technical Advisor to the Alfred E. Mann Institute for Biomedical Engineering at USC, a fellow of the Startup Leadership Program, the President of Finance and Administration of VaxGen, Inc. from March 2006 until April 2008, with responsibility for finance, tax, treasury, human resources, information technology, purchasing and facilities functions. Prior to VaxGen, Mr. Pfeffer served as Chief Financial Officer of Cell Genesys, Inc. During his nine-year tenure at Cell Genesys, Mr. Pfeffer served as Director of Finance before being named Chief Financial Officer in 1998. Prior to that, Mr. Pfeffer served in a variety of financial management positions at other companies, including roles as Corporate Controller, Manager of Internal Audit and Manager of Financial Reporting. Mr. Pfeffer began his career at Price Waterhouse. Mr. Pfeffer graduated from the University of California, BerkeleyUCSF’s Graduate Division Alumni Association and is currently a Certified Public Accountant. Our Board believes that Mr. Pfeffer’s executive and managerial experience together with his leadership skills make him wellboard member of the Maestro Foundation. We believe Dr. Mendelsohn is qualified to continue serving as oneserve on the combined company’s board of our directors.directors because of his scientific background and his senior management experience in the biotechnology industry.

Vote Required and Recommendation

Each of the director nominees in this Proposal No. 1 is elected by the affirmative vote of a plurality of the voting power represented at the annual meeting. Each director nominee who receives more “FOR” votes than “AGAINST” votes representing shares of our common stock present in person or represented by proxy and entitled to be voted at the Annual Meeting will be elected.Abstentions from voting on the proposal and broker non-votes will not be counted as votes cast and accordingly will have no effect upon the outcome of this proposal. It is anticipated that Proposal No. 1 will be a non-discretionary proposal considered non-routine under the rules of NYSE.

All of the nominees have indicated to us that they will be available to serve as directors. In the event that any nominee should become unavailable, the proxy holders, Will McGuireAdam Mendelsohn or John T. Blake,Brigid Makes will vote for a nominee or nominees designated by the Board.

There

Apart from Aaron Mendelsohn and Adam Mendelsohn who are family members, there are no family relationships among our executive officers and directors. Aaron Mendelsohn is the father of Adam Mendelsohn.

If you sign your proxy or voting instruction card but do not give instructions with respect to voting for directors, your shares will be voted by Will McGuireAdam Mendelsohn or John T. Blake,Brigid Makes, as proxy holders. If you wish to give specific instructions with respect to voting for directors, you may do so by indicating your instructions on your proxy or voting instruction card.

You may cumulate your votes in favor of one or more of the director nominees. If you wish to cumulate your votes, you will need to indicate explicitly your intent to cumulate your votes among the five persons who will be voted upon at the Annual Meeting. See “Questions“Questions and Answers—Voting Information—Is cumulative voting permitted for the election of directors?” for further information about how to cumulate your votes. Will McGuireAdam Mendelsohn or John T. BlakeBrigid Makes as proxy holders, reserve the right to cumulate votes and cast such votes in favor of the election of some or all of the applicable nominees in their sole discretion, except that a shareholder’sstockholder’s votes will not be cast for a nominee as to whom such shareholderstockholder instructs that such votes be cast “AGAINST” or “ABSTAIN.”

Our Board recommends a vote “FOR” each of the nominees.

Director Compensation

Non-Employee Director Compensation for 2018Program

On June 1, 2018 ourDuring 2022, we adopted a non-employee directors were paid an annual retainer of $50,000. Each of ourdirector compensation policy, which is designed to enable us to attract and retain on a long-term basis, highly qualified non-employee directors who served as a committee chair also received $6,000 per year for his or her service as committee chair and non-chair committee members received $4,000 per year for each committee on which they served; provided, however,directors. Under the Audit Committee chair’s additional retainer was $16,000 per year and each non-chair Audit Committee member’s additional retainer was $8,000 per year. All fees were paid in shares of our stock on June 1 and the stock price per share value was determined by an average closing price of our stock for the preceding twenty trading days of our common stock on its principal exchange.

Commencing June 1, 2018,policy, our non-employee directors are paid theireligible to receive cash retainers (which will be prorated for partial years of service) and equity awards as follows:

Our policy provides that a non-employee director may choose to receive the equivalent of the annual basecash retainer (not including any committee retainers) for that non-employee director in a stock option to buy common stock in the Company instead of in cash, provided such election must be made in accordance with the terms of the policy, and must be made (i) by December 31st of the calendar year preceding the year with respect to any cash compensation retainersis earned, for any continuing non-employee director, and (ii) within 30 days of $35,000 for serving onelection or appointment to the board, and committees in cash on the first business day of every quarter. The Audit Committee chair also receives a retainer of $18,000 per year for his service as committee chair and non-chair Audit Committee members receive $8,000 per year. The Compensation Committee chair’s retainer is $12,000 per year and each other Compensation Committee member’s additional retainer is $6,000 per year. The Nominating and Governance Committee chair’s retainer is $10,000 per year and each other Nominating and Governance Committee member’s additional retainer is $5,000 per year. Additionally, ourany new non-employee directors are paid an equity compensation retainer in the form of stockdirector. Any options that equal $25,000 divided by the Black-Scholes value of the stock options on the date of their issuance. The stock options (i) have a 10 year term, (ii) fully vest on the earlier of the one year anniversary of grant or the date of next shareholder meeting, no partial vesting is allowed and (iv) upon ceasing to be a board member, the options may be exercised (x) for 30 days in the event of resignation, (y) 60 days in the event of termination, and (z) 90 days in the event of death. Our non-employee directors may elect, on the date of our annual shareholder meeting, to receive their base compensation retainers in the form of stock options on the same terms as the aforementioned equity compensation retainer.

The following Director Compensation Table sets forth information concerning compensation for services rendered by our non-employee directors for fiscal year 2018. The amounts represented in the “Fees Earned or Paid in Cash” column reflects the stock compensation expense recorded by the Company and does not necessarily equate to the income that will ultimately be realized by the directors for such awardsreceived in lieu of the cash retainer will vest one-fourth at the end of each calendar quarter following the grant date, subject to continued service through such date; provided, that for such grant made to a new non-employee director after January 1, the number of option shares that will vest at the end of the first calendar quarter following such grant shall be pro-rated based on the number of actual cash fees, as noted above.days served by the non-employee director during such quarter.

PROPOSAL 2 — APPROVe an amendmentIn addition to the Restated Articlescash retainers, our non-employee director compensation policy provides that, upon initial or appointment to our Board, each new non-employee director who initially joins the Board will receive a one-time grant of

Incorporation of the Company an option to increase the authorized shares of common

stock of the Company from 200,000,000 to 300,000,000

Our restated articles of incorporation currently provide for authorized capital stock consisting of 200,000,000 no par value shares of common stock, and 10,000,000 no par value, shares of preferred stock. As of the Record Date, we had 124,197,961 shares of common stock outstanding, excluding 62,261,657purchase shares of our common stock underlying outstanding warrants, 8,586,375with a targeted grant date fair value equal to the annual retainer fee (not including any committee retainers), or the Director Initial Grant. The Director Initial Grant will vest in monthly installments over the three-year period following the grant date, subject to continued service through such date. On the date of each annual meeting of stockholders, each non-employee director then in office and who will continue to serve as a member of the Board will receive a grant of an option to purchase shares of our common stock issuable for options granted under our 2011 Equitywith a targeted grant date fair value equal to the annual retainer fee (not including any Committee retainers), or the Director Annual Grant. The Director Annual Grant will vest in total on the earlier of (i) the first anniversary of the grant and (ii) the next annual meeting of stockholders, subject to continued service through such date.

In the event of a Sale Event (as defined in the 2022 Omnibus Incentive Plan, (the “2011 Equity Plan”or the 2022 Plan,), as amended, 512,750 sharesthe equity awards granted to the non-employee directors pursuant to this policy shall become 100% vested and exercisable.

For purposes of our common stock issuable for restricted stock units (“RSUs”) granted, but not released, 906,888 shares currently reserved for issuance under our Employee Stock Purchase Plan, and no shares of preferred stock outstanding. Asthis policy, “Value” means the grant date fair value of the record date, we had 3,534,369 sharesstock option (i.e., Black-Scholes value) determined in accordance with the reasonable assumptions and methodologies employed by us for calculating the fair value of authorized common stock remaining for future issuances, after giving effect to 196,465,631 shares outstandingoptions under Financial Accounting Standard Board, or currently reserved for future issuances under our various plans.FASB, Accounting Standards Codification Topic 718, or ASC 718.

We are asking our shareholders to approve an amendment

2022 Non-Employee Director Compensation Table

The table below sets forth information concerning total compensation that was earned by or paid to our restated articles of incorporation to increase the total number of shares of common stock that we are authorized to issue from 200,000,000 shares to 300,000,000 shares. The additional shares of common stock for which authorization is sought would be part of the existing class of common stock and, if and when issued, would have the same rights and privileges as the shares of common stock presently outstanding. Such additional shares would not (and the shares of common stock presently outstanding do not) entitle the holders thereof to preemptive voting rights. The number of authorized shares of our preferred stock will not be affected by this amendment to our restated articles of incorporation and will be maintained at 10,000,000 shares.

Our Board has determined that it is advisable and in the best interest of the Company’s shareholders for the Company to amend its restated articles of incorporation to increase the total number of authorized shares of the Company’s common stock from 200,000,000 to 300,000,000 shares. Accordingly, on April 12, 2019, our board ofnon-employee directors approved an amendment to our restated articles of incorporation in substantially the form attached hereto as Appendix A, subject to shareholder approval, and directed that this amendment be submitted to a vote of our shareholders.

Our Board believes that the proposed increase in authorized common stock will make sufficient shares of Common Stock available to provide the additional flexibility necessary to pursue our strategic objectives. The additional shares of common stock authorized under the proposed amendment may be used for various purposes. For example, in February 2019 we completed a public rights offering to our shareholders of approximately 47.8 million units, each unit consisting of one share of common stock and one warrant to purchase one additional share, for net proceeds of approximately $34.6 million that we intend to use to support ongoing development of Orion and operations. The Company could elect to use the additional authorized shares of common stock for other public and private offerings in the future, or for various other strategic and corporate purposes.

The additional common stock proposed to be authorized would have rights identical to the currently outstanding shares of our common stock. Approval of this Proposal No. 2 would not affect the rights of the holders of currently outstanding shares of our common stock, except for effects incidental to increasing the number of shares of our common stock outstandingif such additional authorized shares of common stock are issued, such as dilution of any earnings per share and voting rights of current holders of common stock. The additional shares of common stock authorized by the approval of this Proposal No. 2, and the filing of the amendment to our restated articles of incorporation, could be issued by our Board without further vote of our shareholders except as may be required in particular cases by our restated articles of incorporation, our restated bylaws, applicable law, regulatory agencies, or the Nasdaq Listing Rules. Under our restated articles of incorporation, shareholders do not have preemptive rights to subscribe for additional securities that may be issued by us, which means that current shareholders do not have a prior right thereunder to purchase any new issue of common stock in order to maintain their proportionate ownership interests in the Company.

Our Board unanimously recommends that shareholders vote “FOR” the approval of an amendment to the Restated Articles of Incorporation of the Company to increase the authorized shares of common stock of the Company from 200,000,000 to 300,000,000 as described in this Proposal 2.

REPORT OF THE AUDIT COMMITTEE

The Audit Committee of the Board of Directors (the "Audit Committee") has furnished this report concerning the independent audit of the Company's consolidated financial statements. Each member of the Audit Committee meets the enhanced independence standards established by the Sarbanes-Oxley Act of 2002 and rulemaking of the Securities and Exchange Commission (the "SEC") and the NASDAQ Stock Market regulations. A copy of the Audit Committee Charter is available on the Company's website at http://www.secondsight.com.

The Audit Committee's responsibilities include assisting the Board of Directors regarding the oversight of the integrity of the Company's consolidated financial statements, the Company's compliance with legal and regulatory requirements, the independent registered public accounting firm's qualifications and independence, and the performance of the independent registered public accounting firm.

In fulfilling its responsibilities, the Audit Committee of the Board has:

In addition the Audit Committee has regularly met separately with management and with Gumbiner Savett Inc.

Based upon the reviews and discussions described above, the Audit Committee recommended to the Board that the audited consolidated financial statements be includedMr. Adam Mendelsohn is set forth in the Company’s Annual Report on Form 10-K forsection of this Proxy Statement captioned “Executive Compensation— 2022 Summary Compensation Table” and the year ended December 31, 2018.accompanying footnotes and narrative.

PROPOSAL 3No. 2 — RATIFy ON ADVISORYADVISORY BASIS the APPOINTMENT OF INDEPENDENT

REGISTERED PUBLIC ACCOUNTING FIRM

The Audit Committee of the Board has reappointed Gumbiner Savett Inc.appointed BPM LLP as our independent registered public accounting firm to audit our consolidated financial statements for the fiscal year ending December 31, 2019. Gumbiner Savett Inc.2023. BPM LLP has served as our independent registered public accounting firm since 2014.

Shareholder

Stockholder ratification of the selection of Gumbiner Savett Inc.BPM LLP as our independent registered public accounting firm is on an advisory basis and is not required by our Bylaws or otherwise. The Board seeks such ratification as a matter of good corporate practice. Should the shareholdersstockholders fail to ratify the selection of Gumbiner Savett Inc.BPM LLP as our independent registered public accounting firm, the Board will reconsider whether to retain that firm for fiscal year 2019.2023. Even if the selection is ratified, the Audit Committee of the Board in its discretion may direct the appointment of a different independent registered public accounting firm at any time during the year if it determines that such a change would be in the best interests of the Company and its shareholders.stockholders.

Principal accounting fees and services

The following table represents aggregate fees billed to the Company for fiscal yearsyear ended December 31, 2018 and 20172022, by Gumbiner Savett Inc.:BPM LLP:

Pre-Approval Policies and Procedures

The Audit Committee reviews and pre-approves all audit and permissible non-audit services provided by the independent registered public accounting firm. These services may include audit services, audit-related services and tax services, as well as specifically designated non-audit services which, in the opinion of the Audit Committee, will not impair the independence of the independent registered public accounting firm. Pre-approval generally is provided for up to one year, and any pre-approval is detailed as to the particular service or category of services and generally is subject to a specific budget.  The independent registered public accounting firm and the Company’s management are required to periodically report to the Audit Committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval, including the fees for the services performed to date.  In addition, the Audit Committee also may pre-approve particular services on a case-by-case basis, as necessary or appropriate.

Gumbiner Savett Inc.BPM LLP Representatives at Annual Meeting

We expect that representatives of Gumbiner Savett Inc.BPM LLP will not be present at the Annual Meeting.

Vote Required and Recommendation

The

Assuming a quorum is present, approval of this Proposal No. 2 requires the affirmative vote of a majority of the shares represented and voting at the annual meeting. Abstentions from voting on the proposal will have no effect, unless there are insufficient votes cast on this matter is required for the ratificationin favor of the appointmentproposal, such that the affirmative votes constitute less than a majority of Gumbiner Savett Inc.the required quorum. In such a case, abstentions will have the same effect as our independent registered public accounting firm. Abstentions and brokera vote against Proposal No. 2. It is anticipated that Proposal No. 2 will be a discretionary proposal considered routine under the rules of the NYSE. Broker non-votes if any,are not expected.

Unless otherwise directed by the stockholders, proxies will not be counted as votes cast.voted FOR approval of Proposal No. 2.

The Board recommends that shareholdersstockholders vote “FOR” ratification of the appointment of Gumbiner Savett Inc.BPM LLP as our independent registered public accounting firm for the fiscal year ending December 31, 20192023, as described in this Proposal No. 2.

PROPOSAL NO. 3 – REINCORPORATION FROM CALIFORNIA TO DELAWARE

Overview of the Proposed Reincorporation

Our Board has approved a proposal to change our state of incorporation from California to Delaware (the “Reincorporation”), subject to the approval of our stockholders. If approved by our stockholders, the Reincorporation will be effected pursuant to the terms of a conversion as provided under the California Corporations Code and the Delaware General Corporation Law. The name of Vivani after the Reincorporation will remain Vivani Medical, Inc. For purposes of the discussion below, Vivani as it currently exists as a corporation organized under the laws of the State of California is also referred to as “Vivani California,” and Vivani after Reincorporation as a corporation organized under the laws of the State of Delaware is referred to as “Vivani Delaware.”

The Board considered several factors in reaching this decision, including corporate governance, attracting and retaining board members, the differences between California and Delaware state corporate laws, and other advantages and disadvantages of Reincorporation.

The Board believes that the choice of state domicile is important because state corporate law governs the internal affairs of a corporation. Management and boards of directors of corporations look to state corporate law and judicial interpretations of state law to guide their decision-making on many key issues, including appropriate governance policies and procedures, satisfaction of fiduciary obligations to stockholders, compliance with financial and legal requirements in the corporation’s business operations, and consideration of key strategic transactions for the corporation, including financings, mergers, acquisitions, and divestitures.

The Board further believes that it is essential for Vivani to be able to draw upon the well-established principles of corporate governance of Delaware law in making legal and business decisions while helping to preserve the stockholder rights that our stockholders are accustomed to, in the interest of maximizing long-term stockholder value. The prominence, breadth, depth and predictability of Delaware corporate law, including its extensive body of case law, provide a reliable foundation on which Vivani’s governance decisions can be based, and the Board believes that Vivani’s stockholders will benefit from the responsiveness of Delaware corporate law to their needs.

In addition to the benefits of being a Delaware corporation, the Board has proposed as part of the Reincorporation to preserve certain rights that are currently held by its stockholders as a matter of California law and under the California Incorporation Documents. Accordingly, the Board determined, in connection with approval of the Reincorporation, to maintain the following stockholder-friendly provisions of our governance structure even though they would not be required under Delaware law:

The Stockholders are urged to read this proposal carefully, including all of the related appendices attached to this Proxy Statement, before voting on the Reincorporation. The following discussion summarizes material provisions of the Reincorporation and is subject to and qualified in its entirety by the Plan of Conversion in substantially the form attached hereto as Appendix A (the “Plan of Conversion”), the Delaware Certificate of Incorporation in substantially the form attached hereto as Appendix B (the “Delaware Charter”); and the Delaware Bylaws in substantially the form attached hereto as Appendix C (the “Delaware Bylaws,” and together with the “Delaware Charter,” the “Delaware Incorporation Documents”). Copies of the California Restated Articles of Incorporation (the “California Articles”) and the California Amended and Restated Bylaws (the “California Bylaws,” and together with the California Articles, the “California Incorporation Documents”) have been filed with the SEC as exhibits to Vivani’s periodic or current reports and will be sent to stockholders free of charge upon written request to Vivani Medical, Inc., Attention: Investor Relations, 5858 Horton Street, Suite 280, Emeryville, CA 94608.

After careful consideration of these factors, the Board believes that it is in the best interests of Vivani and its stockholders to effectuate the Reincorporation.

Mechanics and Consequences of Reincorporation

The Reincorporation will be effected pursuant to the Plan of Conversion to be adopted by Vivani California. The Plan of Conversion provides that the Company will convert into a Delaware corporation and become subject to Delaware law. By virtue of the conversion, all the rights, privileges and powers of Vivani California, all property owned by Vivani California, all debts due to Vivani California and all causes of action belonging to Vivani California immediately prior to the conversion will remain vested in Vivani Delaware following the conversion. In addition, by virtue of the conversion, all debts, liabilities and duties of Vivani California immediately prior to the conversion will remain attached to Vivani Delaware following the conversion. Each director and officer of Vivani California will continue to hold his or her respective office with Vivani Delaware. If the Reincorporation is approved, at the Effective Date, Vivani will be governed by the Delaware Incorporation Documents which will replace the California Incorporation Documents.

Effectiveness of Reincorporation

If this proposal is approved by our stockholders, the Reincorporation would become effective upon the filing and effectiveness of a certificate of conversion with the California Secretary of State (the “California Certificate of Conversion”), a certificate of conversion with the Delaware Secretary of State (the “Delaware Certificate of Conversion”) and the Delaware Charter. If this proposal is approved, it is anticipated that the Board will cause the Reincorporation to be effected as reasonably practicable after the Annual Meeting (the “Effective Date”) subject to the completion of certain legal formalities, including providing certain notices to regulatory authorities. However, the Reincorporation may be delayed by our Board or the Plan of Conversion may be terminated and abandoned by our Board at any time prior to the Effective Time, including after approval of this proposal, if our Board determines for any reason that doing so would be in the best interests of the Company and its stockholders. Furthermore, the Plan of Conversion may be amended at any time prior to the Effective Date, either before or after the stockholders have voted to adopt this proposal, subject to applicable law. Vivani will re-solicit stockholder approval of the Reincorporation if the terms of the Plan of Conversion are changed in any material respect that requires stockholder approval.

At the Effective Time, each outstanding share of common stock of Vivani California will automatically convert into one share of common stock of Vivani Delaware and each outstanding option or other right to purchase shares of Vivani California common stock will constitute an option or other right to purchase an equal number of shares of Vivani Delaware common stock. Company stockholders and holders of Company stock options will not be required to exchange their Vivani California stock certificates or stock options, respectively, and should not destroy any stock certificate or stock option or submit any stock certificate or stock option to the Company unless they are requested to do so by the Company. Any Vivani California stock certificates submitted to the Company for transfer after the Effective Time, whether pursuant to a sale or otherwise, will be exchanged automatically for Vivani Delaware stock certificates.

SHARE CERTIFICATES CURRENTLY ISSUED FOR VIVANI CALIFORNIA’S SHARES WILL AUTOMATICALLY REPRESENT SHARES IN VIVANI DELAWARE UPON COMPLETION OF THE REINCORPORATION, AND SHAREHOLDERS WILL NOT BE REQUIRED TO SURRENDER OR EXCHANGE SHARE CERTIFICATES AS A RESULT OF THE REINCORPORATION.

Continuation of Vivani’s Operations and Management After the Reincorporation

Other than the change in corporate domicile, the Reincorporation will not result in any change in Vivani California’s business operations, Board composition or term, or physical location, nor will it result in any change of our current employees, including management, or in their title, responsibilities or compensation. Upon consummation of the Reincorporation, our daily business operations will continue as they are presently conducted at Vivani California’s current principal executive offices located at 5858 Horton Street, Suite 280, Emeryville, CA 94608, and our telephone number will remain (818) 833-5000. The consolidated financial condition and results of operations of Vivani Delaware immediately after consummation of the Reincorporation will be substantially similar as those of Vivani immediately prior to the consummation of the Reincorporation. Vivani believes that there will be no material accounting impact as a result of the Reincorporation. If the Reincorporation is approved, at the Effective Date, the stockholders of Vivani will remain the stockholders of Vivani.

Trading of Vivani common stock after the Reincorporation

Vivani’s common stock is currently listed for trading on Nasdaq under the ticker symbol “VANI”. If the Reincorporation is approved, at the Effective Date, Vivani’s registration statements on file with the SEC immediately prior to the Reincorporation will continue to belong to Vivani, and the shares of common stock of Vivani Delaware would continue to be traded on Nasdaq without interruption, under the same symbol.

Principal Reasons for Reincorporation

The State of Delaware has been a leader in adopting a comprehensive and coherent set of corporate laws that are responsive to the evolving legal and business needs of corporations organized under Delaware law. Management and boards of directors of corporations look to state corporate law, and judicial interpretations of state law, to guide their decision-making on many key issues, including determining appropriate governance policies and procedures, understanding their fiduciary obligations to stockholders and evaluating key strategic alternatives for a corporation, including mergers, acquisitions and divestitures. Our Board and management believe that it is important for us to be able to draw upon well-established principles of corporate governance in making legal and business decisions. The primary purpose for effecting the Reincorporation would be the prominence and predictability of Delaware corporate law, which provides a reliable foundation on which our governance decisions can be based. We believe that our stockholders will benefit from the responsiveness of Delaware corporate law and the Delaware judiciary to their needs and to the needs of the corporation they own.

The principal factors the Board considered in deciding to pursue and recommending that our stockholders approve the proposed Reincorporation are summarized below:

Predictability, Flexibility and Responsiveness of Delaware Law

Delaware courts have, over many years, established a jurisprudence that is significantly more thorough, predictable, and broadly applied with respect to principles of corporate governance than most, if not all, other jurisdictions. The Delaware General Corporations Law (the “DGCL”) is generally acknowledged to be the most advanced and flexible statutory corporation code in the United States. The Delaware legislature is particularly responsive to developments in modern corporate law and Delaware has proven sensitive to changing needs of corporations and their stockholders. The Delaware General Assembly each year considers and adopts statutory amendments in an effort to ensure that the DGCL continues to be responsive to the changing legal and business needs of corporations and their stockholders. The office of the Delaware Secretary of State is viewed as particularly user-friendly, flexible and responsive (as compared to other states) in its administration of the filings and interactions required for mergers, acquisitions and other corporate transactions, thereby reducing complications and delays that can arise in time-sensitive transactions.

Consequently, Delaware has become the preferred state of incorporation for most publicly-traded companies in the United States and, as a result of the large number of major corporations being domiciled in Delaware, Delaware courts have developed a broad and deep body of relevant case law, and are often the first and most influential to address important new issues relating to corporate governance and rights and obligations of stockholders and corporations. As a result, courts of and corporations organized under the laws of other states, including California, have often looked to Delaware law for guidance for such issues, and the DGCL and Delaware administrative practices have become comparatively well-known and widely understood. Corporations domiciled in Delaware are often at an advantage over their peers that are organized under the laws of other states, including many California corporations, in that Delaware corporations can draw upon these well-developed, firmly established and consistently interpreted principles of corporate law when making business and legal decisions. The Board therefore anticipates that the DGCL will provide greater efficiency, clarity, predictability and flexibility in Vivani’s legal affairs and corporate governance decisions than is presently available under California law. In addition, Delaware case law provides a body of law defining the proper duties and decision-making processes expected of boards of directors in evaluating potential or proposed corporate transactions, which will further benefit Vivani’s stockholders.

Access to Specialized Courts

Delaware’s court system also provides swift and efficient resolutions in corporate litigation involving complex corporate issues. Delaware has a specialized court of equity called the Court of Chancery that hears and decides corporate law cases. The Delaware Court of Chancery operates under rules that are intended to ensure litigation of disputes in a timely and effective way, keeping in mind the timelines and constraints of business decision-making and market dynamics, and routinely handles cases involving complex corporate issues with a level of experience and a degree of sophistication and understanding unmatched by other courts in the country. The appellate process on decisions emanating from the Court of Chancery is similarly streamlined and highly responsive in cases involving complex corporate issues, and the justices of Delaware appellate courts tend to have substantial experience with corporate cases because of the relatively higher volume of these cases in the Delaware court system. The fact that issues of corporate governance are frequently addressed first in Delaware contributes to an efficient and expert court system and bar. In contrast, California does not have a similar specialized court established to hear only corporate law cases. Rather, disputes involving questions of California corporate law are either heard by the California Superior Court, the general trial court in California that hears all manner of cases, or, if federal jurisdiction exists, a federal district court. These courts hear many different types of cases, and the cases may be heard before judges or juries with limited corporate law experience. As a result, corporate law cases brought in California may not proceed as expeditiously as cases brought in Delaware and the outcomes in such courts may be less consistent or predictable. The highly specialized nature of the Delaware court system is therefore widely believed to result in more consistent and timely rulings.

To ensure that we get the full benefits of Delaware’s corporate legal framework, the Board has provided in the proposed Delaware Bylaws that the Delaware courts are the exclusive forum for the adjudication of certain legal actions as described further below.

Enhanced Ability to Attract and Retain Qualified Candidates for Board of Directors and Management

We experience competition in recruiting and retaining talented individuals to serve on our management team and Board. The Board believes that the comparatively stable and predictable corporate environment afforded by Delaware would enable Vivani to compete more effectively with other public companies, most of whom are domiciled in Delaware, in the recruitment and retention of talented and experienced directors and officers. Delaware law is more familiar to investors and advisors, and offers greater certainty and stability from the perspective of those who serve as corporate officers and directors in part because the parameters of director and officer liability, including protection for stockholders from possible abuses by directors and officers, are more extensively addressed in Delaware court decisions and are therefore better defined and better understood than under California law. It should also be noted that directors’ personal liability is not, and cannot be, eliminated under Delaware law for intentional misconduct, bad faith conduct, unlawful dividend payments or unlawful stock purchases or redemptions, or any transaction from which the director derives an improper personal benefit. The Board therefore believes that the comparatively stable and predictable corporate environment afforded by Delaware would not only enhance its ability to recruit and retain directors and officers in the future, but also provide appropriate protection for stockholders from possible abuses by directors and officers, encouraging directors and officers to continue to make independent decisions in good faith on behalf of Vivani.

More Certainty Regarding Indemnification and Limitation of Liability for Directors

In general, both California and Delaware permit a corporation to include a provision in its charter that reduces or limits the monetary liability of directors for breaches of fiduciary duties, subject to certain exceptions further discussed below. The increasing frequency of claims and litigation directed against directors and officers has greatly expanded the risks facing directors and officers of corporations in exercising their respective duties. The amount of time and money required to respond to such claims and to defend such litigation can be substantial and distracting to the directors and officers and also results in higher liability insurance premiums for companies. It is our desire to reduce these risks to our directors and officers by providing indemnification and advancement of litigation expenses to directors and officers and to limit situations in which monetary damages can be recovered against directors, in each case to the fullest extent permitted by Delaware law, so that we may continue to attract and retain qualified directors and officers who otherwise might be unwilling to serve because of the risks involved. In addition, enhanced protection of directors is expected to reduce the extent to which directors, due to the threat of personal liability, are inhibited from making business decisions which, though entailing some degree of risks, are in the best interests of Vivani and its stockholders. We believe that, in general, Delaware law provides greater protection to directors than California law, and that Delaware case law regarding a corporation’s ability to limit director liability and to indemnify and advance litigation expenses to directors and officers is more developed and provides more guidance than California law. Stockholders should note that a director’s personal liability is not, and cannot be, eliminated under Delaware law for intentional misconduct, bad faith conduct, or any transaction from which the director derives an improper personal benefit, and the Board believes that Delaware law will provide appropriate protection for stockholders from possible abuses by directors and officers, while enhancing our ability to recruit and retain directors and officers. However, the stockholders should be aware that such protection and limitation of liability inure to the benefit of directors, and the interest of the Board in recommending the approval of this Reincorporation may therefore not be fully aligned with the interests of the stockholders.

Possible Negative Consequences of Reincorporation

Notwithstanding the belief of the Board in the benefits to Vivani’s stockholders of the Reincorporation, it should be noted that Delaware law has been criticized by some commentators on the grounds that it does not afford minority stockholders the same substantive rights and protections as are available in a number of other states, including California. In addition, franchise taxes payable by Vivani in Delaware may be greater than the equivalent or other similar taxes currently payable by Vivani in California. The Board has considered the possible disadvantages of the Reincorporation and has concluded that the potential benefits outweigh the possible disadvantages.

It should also be noted that the interests of our directors and executive officers in voting on the Reincorporation proposal may be different from, or in addition to, those of stockholders generally because, for example, some substantive provisions of California and Delaware law apply only to directors and officers. See “Interest of Vivani’s Directors and Executive Officers in the Reincorporation” below. For a comparison of stockholders’ rights and the material substantive provisions that apply to the Board and executive officers under Delaware and California law, see “Significant Differences Between the Charters and Bylaws of Vivani California and Vivani Delaware and Between the Corporate Laws of California and Delaware” below. The Board has considered these interests, among other matters, in reaching its decision to approve the Reincorporation and to recommend that our stockholders vote in favor of this proposal.

Interest of Vivani’s Directors and Executive Officers in the Reincorporation

The stockholders should be aware that Vivani’s directors and executive officers in voting on the Reincorporation proposal may have interests in the transaction that are different from, or in addition to, the interests of the stockholders generally. For example, the Reincorporation may provide officers and directors of Vivani with more clarity and certainty in the reduction of their potential personal liability and strengthen the ability of directors to resist takeover bids. The Board has considered these interests, among other matters, in reaching its decision to approve the Reincorporation and to recommend that our stockholders vote in favor of this proposal.

U.S. Federal Income Tax Consequences

The following discussion summarizes certain U.S. federal income tax consequences of the Reincorporation to holders of our common stock. The discussion is based on the Code, regulations promulgated under the Code by the U.S. Treasury Department (including proposed and temporary regulations), rulings, current administrative interpretations and official pronouncements of the Internal Revenue Service (IRS), and judicial decisions, all as currently in effect and all of which are subject to differing interpretations or to change, possibly with retroactive effect. Such change could materially and adversely affect the tax consequences described below. No assurance can be given that the IRS would not assert, or that a court would not sustain, a position contrary to any of the tax consequences described herein.

This discussion is for general information only, and does not purport to discuss all aspects of U.S. federal income taxation that may be important to a particular holder in light of its investment or tax circumstances or to holders subject to special tax rules, such as partnerships, subchapter S corporations or other pass-through entities, banks, financial institutions, tax-exempt entities, insurance companies, regulated investment companies, real estate investment trusts, trusts and estates, dealers in stocks, securities or currencies, traders in securities that have elected to use the mark-to-market method of accounting for their securities, persons holding our common stock as part of an integrated transaction, including a “straddle,” “hedge,” “constructive sale,” or “conversion transaction,” persons whose functional currency for tax purposes is not the U.S. dollar and persons subject to the alternative minimum tax provisions of the Code. This discussion does not include any description of the tax laws of any state or local governments, or of any foreign government, which may be applicable to a particular holder.

This discussion is directed solely to holders that hold our common stock as capital assets within the meaning of Section 1221 of the Code, which generally means as property held for investment. In addition, the following discussion only addresses “U.S. persons” for U.S. federal income tax purposes, generally defined as beneficial owners of our common stock who are:

If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds our common stock, the U.S. federal income tax treatment of a partner generally will depend on the status of the partner and the activities of the partnership. A partner of a partnership holding our common stock should consult its own tax adviser regarding the U.S. federal income tax consequences to the partner of the Reincorporation.

This discussion does not purport to be a complete analysis of all of the tax consequences of the Reincorporation that may be relevant to holders. We urge you to consult your own tax adviser regarding your particular circumstances and the U.S. federal income and other federal tax consequences to you of the Reincorporation, as well as any tax consequences arising under the laws of any state, local, foreign or other tax jurisdiction and the possible effects of changes in U.S. federal or other tax laws.

We have not requested a ruling from the IRS or an opinion of counsel regarding the U.S. federal income tax consequences of the Reincorporation. However, we believe:

Appraisal Rights

Holders of Vivani’s common stock are not entitled to appraisal rights under California law in connection with the Reincorporation.

Vote Required and Recommendation

Approval of this Proposal No. 3 requires the affirmative vote of a majority of the issued and outstanding shares of common stock entitled to vote on the record date of the annual meeting. Abstentions from voting on the proposal and broker non-votes will have the same effect as an “Against” vote. It is anticipated that Proposal No. 3 will be a non-discretionary proposal considered non-routine under the rules of the NYSE.

Unless otherwise directed by the stockholders, proxies will be voted FOR approval of the Proposal No. 3.

The Board recommends that the stockholders vote FOR approval of the Reincorporation, as described in this Proposal No. 3.

PROPOSAL NOS. 4A – 4F – GOVERNANCE PROVISIONS OF THE COMPANY’S CERTIFICATE OF
EXECUTIVE COMPENSATION INCORPORATION AND RELATED INFORMATIONBYLAWS RELATING TO THE REINCORPORATION

Compensation Discussion

Overview(Proposals No. 4A - 4F)

Summary

If approved by the requisite vote of the Company’s stockholders, the Company will change the state of its incorporation from California to Delaware through a Reincorporation. Upon completion of the Reincorporation, the Company will be governed by the DGCL and the Company’s new certificate of incorporation (the “Delaware Charter”) and bylaws (the “Delaware Bylaws”). The Delaware Charter and Delaware Bylaws that will govern the Company following the completion of the Reincorporation differ in some material respects from the Company’s existing articles of incorporation and bylaws. At the meeting, you will be asked to consider and vote on certain of the governance-related provisions in the Company’s organizational documents to be in effect after the Reincorporation described below.

The Compensation Committeefollowing is a summary of selected governance-related provisions of the organizational documents of the Company to be in effect after the Reincorporation. While the Company believes that this description, in addition to the section of this proxy statement titled “Significant Differences Between the Charters and Bylaws of Vivani California and Vivani Delaware and Between the Corporate Laws of California and Delaware” covers the material governance-related provisions of the organizational documents of the Company to be in effect after the Reincorporation, which differ materially from the Company’s existing organizational documents, it may not contain all of the information that is important to you and is qualified in its entirety by reference to the form of Delaware Charter or Delaware Bylaws that are attached to this proxy statement as Exhibits B and C, respectively. We urge you to read each of these documents carefully. See also the section of this proxy statement titled “Significant Differences Between the Charters and Bylaws of Vivani California and Vivani Delaware and Between the Corporate Laws of California and Delaware” beginning on page 34 for a comparison of rights of equity holders and matters of corporate governance before and after the Reincorporation.

Proposal No. 4A: A proposal to approve a provision of the Delaware Charter disallowing cumulative voting.

Proposal No. 4B: A proposal to approve a provision of the Delaware Charter limiting the Company’s stockholders’ right to remove directors without cause.

Proposal No. 4C: A proposal to approve a provision of the Delaware Bylaws permitting only the Board to call special meetings.

Proposal No. 4D: A proposal to approve provisions of the Delaware Charter and Bylaws disallowing action by written consent of stockholders.

Proposal No. 4E: A proposal to approve a provision of the Delaware Charter providing that, unless Vivani Delaware consents in writing to the selection of an alternate forum, certain intracorporate claims may be brought exclusively in the Delaware Court of Chancery (or, if such court lacks subject matter jurisdiction, the other state or federal courts in the State of Delaware).

Proposal No. 4F: A proposal to approve a provision of the Delaware Charter requiring any complaint asserting a cause of action under the Securities Act to be brought exclusively in the federal district courts of the United States, unless the Company consents in writing to the selection of an alternative forum.

Proposal No. 4A: A proposal to approve a provision of the Delaware Charter disallowing cumulative voting.

The California Bylaws provide for cumulative voting for the election of directors at meetings of stockholders. Every stockholder entitled to vote at any election of directors may cumulate such stockholder’s votes and (i) give one candidate a number of votes equal to the number of directors to be elected multiplied by the number of votes to which the stockholder’s shares are entitled or (ii) distribute the stockholder’s votes on the same principle among as many candidates as the stockholder thinks fit. However, no stockholder shall be entitled to cumulate votes for a candidate unless the candidate’s name has been placed in nomination prior to the voting and the stockholder, or any other stockholder, has given notice at the meeting prior to the voting of the intention to cumulate votes.

The Delaware Charter will not provide for cumulative voting in connection with the election of directors. Under Delaware law, unless otherwise specified in the certificate of incorporation or bylaws, directors are elected by a plurality of the votes of the shares present in person or represented by proxy at the meeting and entitled to vote on the election of directors. The Delaware Bylaws provide that any election of directors by stockholders shall be determined by a plurality of the votes properly cast on the election of directors.

Our Board believes cumulative voting is overly complicated to implement and is no longer in the best interests of our Company and our stockholders. In addition, a stockholder or group of stockholders holding a relatively small number of shares that cumulatively votes its shares in an election of directors could elect one or more directors whose loyalty may primarily be to the minority group responsible for their election rather than to our Company and all of our stockholders. Our Board believes that each director is responsible to, and should represent the interests of all stockholders as opposed to a minority stockholder group that may have special interests and goals inconsistent with those of the majority of stockholders. The election of directors who view themselves as representing a particular minority stockholder group could result in partisanship and discord on our Board and may impair the ability of our directors to act in the best interests of our Company and all of our stockholders.

Accordingly, our Board is proposing to eliminate cumulative voting. If this Proposal No. 4A is accepted by the stockholders, our directors will then be elected at the 2024 Annual Meeting of Stockholders by plurality vote as provided in our Delaware Bylaws, without the right to cumulate votes.

Proposal No. 4B: A proposal to approve a provision of the Delaware Charter limiting the Company’s stockholders’ right to remove directors without cause.

Under California law, directors may be removed by the board of directors if they are of unsound mind or convicted of a felony. The Superior Court of a proper California county, upon lawsuit of the stockholders of a corporation who have at least 10 percent of the outstanding shares, may remove a director in case of fraudulent or dishonest acts or gross abuse of authority or discretion. The California Charter and Bylaws do not address removal of directors.

The Delaware Charter will provide that any director may be removed from office (i) only for cause and (ii) only by the affirmative vote of the holders not less than two-thirds (2/3) of the outstanding shares of capital stock then entitled to vote at an election of Directors.

Pursuant to both Delaware law and the Delaware Bylaws, at each annual meeting of stockholders, each stockholder will continue to have the opportunity to cast “withhold” votes with respect to the election of any Board member nominee. In addition, in accordance with applicable laws, in order to enable stockholders to appropriately evaluate individual Board members, as well as the overall composition of the Board, the Company distributes information in the proxy statement for each annual meeting about the background, experience, independence, and other qualifications of each Board member nominee. The proxy statement also informs stockholders of the role of the Board and its committees in overseeing the performance of the Company’s management. This information enables stockholders to annually submit an educated vote on the merits of individual Board members.

The Board believes the stability and continuity enabled by a requirement that Board members may only be removed “for cause,” as described in this Proposal No. 4B, is in the best interests of stockholders. Stockholders’ ability to remove members of the Board only “for cause” provides and promotes stability and continuity of the Board, which in turn allows the Company and its stockholders holders to realize the benefits associated with a group of Board members whose collective experience with the Company and in-depth knowledge of the Company’s business and strategies contribute to the Board’s ability to effectively exercise its fiduciary duties. The Board believes experienced Board members are well positioned to focus on the long-term interests of the Company, particularly if their time and attention are not diverted by the threat of unfounded appeals for their removal. The Board believes stockholders’ ability to remove any or all Board members without merit has the potential to create Board and management instability and uncertainty and distract the Company and its Board members from advancing the interests of the Company’s stockholders.

Proposal No. 4C: A proposal to approve a provision of the Delaware Bylaws permitting only the Board to call special meetings.

Under California law, a special meeting of stockholders may be called by the board of directors, the board chair, the president, or the holders of shares entitled to cast not less than 10% of the votes at such meeting and any additional persons as are authorized by the articles of incorporation or bylaws. The California Bylaws allow a special meeting to be called by the Board Chairman, the President, or a majority of the members of the Board.

Under Delaware law, a special meeting of stockholders may be called by the board of directors or by any person authorized in the certificate of incorporation or the bylaws.

The Delaware Bylaws will permit a special meeting to be called only by the Board of Directors.

Like most public companies, Vivani holds an annual stockholder meeting to elect directors and to address various other corporate matters. Preparing for and holding stockholder meetings consumes substantial management, legal and administrative time and resources, and temporarily diverts the focus of the Board and senior management away from managing the Company. Stockholder meetings also impose significant financial costs on the Company, such as third-party expenditures associated with preparing, printing, filing and mailing required proxy materials and holding the meeting. As a result, the Board believes that a special meeting should be held only on the rare occasion when fiduciary, strategic, transactional or similar considerations dictate that a matter is so critical or time sensitive that it must be addressed immediately, rather than at the next annual meeting.

The Board believes that annual stockholder meetings are the most appropriate forum for stockholders to submit proposals and raise issues stockholders believe should be voted upon. Because Vivani’s annual meetings are regularly held and scheduled well in advance, stockholders are able to plan to air their concerns and are afforded ample opportunity to do so within this setting. Stockholders can use the Company’s annual meeting to communicate their concerns to other shareholders, the Board and management, including through the submission of stockholder proposals to be included in the Company’s proxy statement and by raising issues from the floor of the meeting or informally before and after the meeting. Because the Board will have the power under the Delaware Bylaws to fill vacancies on the Board until the next annual meeting, the need to hold a special meeting to fill a vacancy on the Board would be rare. In the unlikely event that an extraordinary matter arises requiring immediate formal stockholder action before the next annual meeting, the Delaware Bylaws provide that the Board, whose members are bound by fiduciary duties to act in the best interest of all shareholders, may call a special meeting of stockholders.

Stockholders can be assured that their right to be apprised of and vote on significant matters is also protected by state law and stock exchange rules. If the Reincorporation proposal is approved, the Company will be incorporated in Delaware whose laws require that major corporate actions, such as a merger or a sale of substantially all of our assets, be approved by stockholders holding at least a majority of our outstanding stock. Also, because the Company is listed on Nasdaq, the Company must obtain stockholder approval for equity compensation plans, significant issuances of securities to related parties, and private issuances of shares at a discount that represent more than 20% of the Company’s voting power.

Proposal No. 4D: A proposal to approve provisions of the Delaware Charter and Bylaws disallowing stockholders’ right to act by written consent.

California law provides that stockholder action by written consent is available unless otherwise provided in a company’s articles of incorporation. The California Bylaws permit stockholders to act by written consent without a meeting. In addition, pursuant to the California Bylaws and California law, the election of directors through written consent must be by unanimous stockholder consent; provided that the stockholders may elect a director to fill a vacancy, other than a vacancy created by removal, by the consent of a majority of the outstanding shares entitled to vote.

The Delaware Charter will provide that any action that may be taken at any meeting of the stockholders may not be taken or effected by a written consent of stockholders in lieu of a meeting. In addition, the Delaware Charter and Delaware Bylaws will provide that vacancies occurring on the Board from the death, resignation or removal of a director or other cause, and newly created directorships resulting from an increase in the total number of directors, may be filled solely by a majority of the remaining members of the Board of, Directors administersalthough such majority is less than a quorum, or by a sole remaining director.

Our Board believes that the approval of this Proposal No. 4D is in the Company’s best interests should a person or group holding a majority of our executive compensationstock seek to call a special meeting of stockholders or seek stockholder action by written consent without a meeting. By permitting action to be taken only at a duly called annual or special meeting of stockholders and eliminating action by written consent of stockholders, Proposal No. 4D would give all of our stockholders entitled to vote on a particular matter advance notice of and the opportunity to participate in the determination of any proposed action and the ability to take judicial or other action to protect their interests. In addition, our Board believes that this proposal is desirable to avoid untimely notice of an action in a context that might not permit stockholders to have the full benefit programs. The Compensation Committee is comprisedof the knowledge, advice and participation of our management and Board.

Proposal No. 4E: A proposal to approve a provision of the Delaware Charter requiring any complaint asserting a cause of action under the Securities Act to be brought exclusively in the federal district courts of independent directors and oversees all compensation and benefit programs and actions that affect our executive officers.the United States, unless the Company consents in writing to the selection of an alternative forum.

Compensation Process and Role of Management

The Compensation CommitteeCalifornia Articles and California Bylaws do not currently have a forum selection provision.

Under the exclusive forum provisions contained in the Delaware Bylaws, the federal district courts of the United States will serve as the sole and exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act of 1933, as amended (the “Securities Act”), or the respective rules and regulations promulgated thereunder unless we consent in writing to an alternative forum (the “Federal Forum Provision”).

The Board believes that the Federal Forum Provision is responsiblein the best interests of the Company. Our Board considered a number of factors prior to recommending the Federal Forum Provision as a prudent and proactive means for determiningmanaging this type of potential litigation and approvingto promote efficient and consistent resolutions in the event this type of litigation arises, including: (i) the potential for costly, duplicative litigation involving multiple lawsuits in multiple jurisdictions regarding essentially the same claims under the Securities Act, which could result in increased litigation expenses and greater uncertainty regarding outcomes that may be inconsistent when two or more similar cases proceed in different courts; (ii) the experience and expertise of the U.S. federal district courts in addressing issues and claims under the Securities Act and federal case law regarding the same; (iii) the risk that a state court may not interpret or apply federal law, specifically the Securities Act, in the same manner as the U.S. federal district courts would be expected to do, or may handle procedural aspects differently than the U.S. federal district courts would be expected to do; (iv) the benefits of adopting the Federal Forum Provision when the Company is not facing any actual or threatened stockholder lawsuits under the Securities Act; and (v) the views of proxy advisors and certain institutional investors with respect to federal forum provisions. Moreover, the Federal Forum Provision would not specify any particular U.S. federal district court as the exclusive forum for claims under the Securities Act, so a plaintiff could select, on the basis of convenience or for other reasons, the U.S. federal district courts in any state as the forum for any such claim.

Although the Board believes that the designation of the federal district courts of the United States for Securities Act claims serves the best interests of the Company and our stockholders as a whole, the Board also believes that we should retain the ability to consent to an alternative forum on a case-by-case basis. Specifically, where the Board determines that our interests and those of our stockholders are best served by permitting a dispute to proceed in a forum other than the federal district courts of the United States, the exclusive forum provision in the Delaware Bylaws permits us to consent to the selection of such alternative forum.

Proposal No. 4F: A proposal to approve a provision of the Delaware Charter providing that, unless Vivani Delaware consents in writing to the selection of an alternate forum, certain intracorporate claims may be brought exclusively in the Delaware Court of Chancery (or, if such court lacks subject matter jurisdiction, the other state or federal courts in the State of Delaware).

The California Articles and California Bylaws do not currently have a forum selection provision.

Under the exclusive forum provisions contained in the Delaware Bylaws the Court of Chancery of the state of Delaware will be the sole and exclusive forum for certain actions involving Vivani unless we consent to an alternative forum (the “Delaware Forum Provision”). Based on the proposed language in the Delaware Bylaws, the Court of Chancery will be the exclusive forum for (a) any derivative action or proceeding brought on behalf of the Company, (b) any action asserting a claim of, or a claim based on, a breach of a fiduciary duty owed by any current or former director, officer or other employee or stockholder of the Company to the Company or the Company’s stockholders, (c) any action asserting a claim arising pursuant to any provision of the DGCL or the Charter or these Bylaws (including the interpretation, validity or enforceability thereof) or as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (d) any action asserting a claim governed by the internal affairs doctrine; provided, however, that this will not apply to any causes of action arising under the Securities Act, or the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction.

The Board believes that the Delaware Forum Provision is in the best interests of the Company and will help maximize stockholder value by allowing us to be able to draw upon Delaware’s well-established principles of corporate governance in making business and legal decisions. The Delaware legislature is sensitive to issues of corporate law and responsive to developments in modern corporate law. Delaware’s specialized Chancery Court deals almost exclusively with corporate law and has streamlined procedures and processes to provide relatively quick decisions. In addition, the Delaware Supreme Court, the only Delaware appeals court, is highly regarded. These courts have considerable expertise in dealing with corporate issues and have developed a substantial and influential body of corporate case law. Further, we believe that stockholders and the Company will benefit from the responsiveness of the Delaware courts. Therefore, the prominence, predictability and proactivity of the Delaware courts provides a reliable forum where our governance decisions can be based and litigated. We believe that the Delaware Forum Provision in the Delaware Bylaws will reduce the risk that we could become subject to duplicative litigation in multiple forums, as well as the risk that the outcome of cases in multiple forums could be inconsistent, even though each forum purports to follow Delaware law or federal securities law. Any of these could expose the Company to increased expenses or losses.

Although the Board believes that the designation of the Delaware Court of Chancery as the exclusive forum for intra-corporate disputes serves the best interests of the Company and our stockholders as a whole, the Board also believes that we should retain the ability to consent to an alternative forum on a case-by-case basis. Specifically, where the Board determines that our interests and those of our stockholders are best served by permitting a dispute to proceed in a forum other than the Delaware Court of Chancery, the exclusive forum provision in the Delaware Bylaws permits us to consent to the selection of such alternative forum. The Delaware Forum Provision would not affect suits brought to enforce any other claim for which the federal courts have exclusive jurisdiction.

Anti-Takeover Effects

The elimination of cumulative voting (Proposal No. 4A), limiting stockholders’ right to remove directors without cause (Proposal No. 4B), permitting only the Board to call special meetings (Proposal No. 4C), and eliminating stockholders’ right to act by written consent (Proposal No. 4D) might under certain circumstances render more difficult or discourage a merger, tender offer or proxy contest, the assumption of control by a holder of a large block of our common stock or the removal of incumbent management. The Board’s recommendations on Proposals Nos. 4A through 4D are not part of a plan by the Company’s management to adopt anti-takeover governance measures and it is not a response by the Company to any specific effort by a stockholder to accumulate larger holdings of the Company’s common stock. Neither management nor our Board is aware of any attempt by any stockholder to accumulate sufficient shares to obtain control of our Company.

Vote Required and Recommendation

Under applicable state law, stockholder approval of the Reincorporation is sufficient to implement the proposed governance-related provisions in the Delaware Charter and Delaware Bylaws. Under rules promulgated by the Securities and Exchange Commission, however, we are required to present material proposed governance-related provisions as a separate proposal for stockholder approval. Accordingly, we have determined that we will not implement a proposed governance-related provision unless such provision is approved by the affirmative vote of the holders of a majority of the outstanding shares of the Company’s stock entitled to vote on each such proposed governance-related provision at the meeting. For the avoidance of doubt, in the event that certain governance provisions receive sufficient votes but others do not, then such provisions receiving approval would still be implemented, but for the provisions that do not receive approval, the Company would implement governance provisions most similar to the Company’s existing corresponding governance provisions, subject to complying with Delaware law.

Approval of each of Proposal Nos. 4A – 4F requires the affirmative vote of a majority of the issued and outstanding shares of common stock entitled to vote on the record date of the annual meeting. Abstentions from voting and broker non-votes on each of Proposal Nos. 4A – 4F will have the same effect as an “Against” vote. It is anticipated that Proposal Nos. 4A – 4F will be non-discretionary proposals considered non-routine under the rules of the NYSE.

Unless otherwise directed by the stockholders, proxies will be voted FOR approval of Proposal Nos. 4A – 4F.

The Board recommends that stockholders for “FOR” Proposals Nos. 4A through 4F, as described in these Proposals Nos. 4A through 4F.

Significant Differences Between the Charters and Bylaws of Vivani California and Vivani Delaware and Between the Corporate Laws of California and Delaware

The following summarizes a comparison of certain key provisions between the California Incorporation Documents and Delaware Incorporation Documents, as well as certain provisions of California and Delaware corporate laws. The comparison highlights important differences, but is not intended to list all differences, and is qualified in its entirety by reference to such documents and to the respective General Corporation Laws of the States of California and Delaware. Stockholders are encouraged to read the Delaware Charter, the Delaware Bylaws, the California Articles and the California Bylaws in their entirety. The Delaware Charter and Delaware Bylaws are attached to this Proxy Statement, and the California Bylaws and California Articles are filed publicly as exhibits to our periodic reports with the SEC.

PROPOSAL NO. 5 - NON-BINDING ADVISORY VOTE ON EXECUTIVE COMPENSATION

Introduction

Under Section 14A of the Exchange Act, the Company’s stockholders are entitled to vote to approve, on a non-binding advisory basis, the compensation of the Company’s named executive officers as disclosed in this proxy statement in accordance with SEC rules, commonly referred to as a “say-on-pay vote.”

This vote is not intended to address any specific item of compensation, but rather the overall compensation of the Company’s named executive officers disclosed in the “Executive Compensation” section of this Proxy Statement. The Company believes that its compensation policies and decisions are aligned with our stockholders’ interests, and that the compensation of the Company’s named executive officers is designed to enable the Company to attract and retain talented and experienced executives to lead the Company successfully in a competitive environment.

Accordingly, our Board is asking the stockholders to indicate their support for the compensation of the Company’s named executive officers as described in this Proxy Statement by casting a non-binding advisory vote “FOR” the following resolution:

“RESOLVED, that the compensation paid to the Company’s named executive officers, as disclosed pursuant to Item 402 of Regulation S-K, including the compensation tables and narrative discussion, is hereby APPROVED.”

Because the vote is advisory, it is not binding on our executive officers. Pursuant to its charter,Board, the Compensation Committee, recommendsor the Company. Nevertheless, the views expressed by the stockholders, whether through this vote or otherwise, are important to management and the full Board and, accordingly, the salary, annual incentive compensation or bonus, long-term incentive compensation in the form of stock options or restricted stock units,Board and all other employment, severance and change-in-control agreements applicable to executive officers. Our Chief Executive Officer assists the Compensation Committee in its deliberations with respectintend to the compensation payable to our other executive officers, and typically recommends specific compensation packages for our executive officers based upon his assessment and evaluation of their performance.

Following the end of each fiscal year, our Chief Executive Officer evaluates executive officer performance for the prior fiscal year, other than his own performance, and discussesconsider the results of this vote in making determinations in the future regarding executive compensation arrangements.

Vote Required and Recommendation

Assuming a quorum is present, approval of this Proposal No. 5 requires the affirmative vote of a majority of the shares represented and voting at the annual meeting. Abstentions from voting on the proposal will have no effect, unless there are insufficient votes in favor of the proposal, such evaluations withthat the Compensation Committee. The Chief Executive Officer assesses each executive officer’s performance foraffirmative votes constitute less than a majority of the prior fiscal year based upon subjective factors concerningrequired quorum. In such officer’s individual business goals and objectives, anda case, abstentions will have the contributions madesame effect as a vote against Proposal No. 5. It is anticipated that Proposal No. 5 will be a non-discretionary proposal considered non-routine under the rules of the NYSE. Broker non-votes will have no effect.

Unless otherwise directed by the stockholders, proxies will be voted FOR approval of Proposal No. 5.

The stockholders of Second Sight Medical Products, Inc., our predecessor company, have previously indicated, on a non-binding advisory basis, that the stockholder advisory vote on executive officer to our overall results. The Chief Executive Officer then makes specific recommendations tocompensation be conducted every year. As a result, we expect that the Compensation Committee for adjustments to base salary andnext say-on-pay vote will be at the grant2024 Annual Meeting of Stockholders.

TheBoardrecommends a target bonus and/or equity award, if appropriate, as partvote “FOR” the approval, on a non-binding advisory basis, of the compensation packages for each executive officer, other than himself, for the next fiscal year.

The Compensation Committee reviews the performance of the Chief Executive Officer and determines all compensation for the Chief Executive Officer.company’s named executive officers as disclosed in this Proposal No. 5.

Executive Officers

EXECUTIVE OFFICERS

Jonathan Will McGuire

Mr. McGuire, 56, has served as our President and Chief Executive Officer since August 2015. Prior to that, Mr. McGuire served at Volcano Corporation, where he was President of Americas Commercial since 2014 and prior to that, Senior Vice President and General Manager of Coronary Imaging, Systems and Program Management since 2013. Volcano, a global leader in intravascular imaging for coronary and peripheral applications and physiology, was acquired by Royal Philips in February 2015. Prior to joining Volcano, Mr. McGuire served as Vice President and General Manager of Patient Monitoring at Covidien. He previously served as President and Chief Executive Officer of AtheroMed, Inc., a venture capital-backed peripheral atherectomy company, prior to which he was Chief Operating Officer at Spectranetics Corporation, a publicly-traded medical device company. In addition, Mr. McGuire held various positions at Guidant Corporation from 1998 to 2005 including General Manager of Guidant Latin America; Director of U.S. Marketing for Vascular Intervention (VI); Director of Global Marketing for VI; and, Production Manager for Coronary Stents. Prior to 1998, Mr. McGuire held positions in Finance and Production at IVAC Medical Systems. A graduate of the Georgia Institute of Technology, Mr. McGuire received his M.B.A. from the Kenan-Flagler Business School at the University of North Carolina at Chapel Hill.

John T. Blake

Mr. Blake, 42,Adam Mendelsohn, Ph.D.:  Dr. Mendelsohn has served as our Chief FinancialExecutive Officer and as a member of our Board of Directors since March 2018.the Merger in 2022. Prior to that Mr. Blake served as Senior Vice President, Finance from February 2017 to March 2018, Vice President, Finance from October 2015 to February 2017 and Senior Director Finance and Controller from March 2015 to October 2015 at aTyr Pharma, a publicly-traded biotechnology company. Mr. Blakethis, Dr. Mendelsohn served as the Director, Financial PlanningChief Executive Officer of NPM between from 2009 till 2022. Dr. Mendelsohn received his Ph.D. in bioengineering at the UC San Francisco/UC Berkeley Joint Graduate Group in Bioengineering, Class of 2011, during which he was awarded an NSF fellowship to perform research at Kyoto University and Analysispublished multiple peer-reviewed articles describing new treatment options for Type 1 diabetes through the immuno-isolated transplantation of Volcano Corporation, a publicly-traded medical device company, from March 2010 to March 2015 andinsulin-producing cells under the direction of Professor Tejal A. Desai. While in graduate school, Dr. Mendelsohn served as the SEC Reporting Manager from November 2008 to March 2010. Mr. Blake is a Certified Public Accountantdirector for the Venture Innovation Program in Life Sciences and holds a Mastercompleted his certificate in Management of Business Administration fromTechnology with the MarshallHaas School of Business at the University of Southern California. In addition, Mr. Blake has completed leadership executive education at Harvard Business School and the Strategic Financial Leadership Program at Stanford Graduate School of Business.

Edward Randolph

Mr. Randolph, 61, Dr. Mendelsohn has served as our Vicea Technical Advisor to the Alfred E. Mann Institute for Biomedical Engineering at USC, a fellow of the Startup Leadership Program, the President of Manufacturing since 2007. From 2003UCSF’s Graduate Division Alumni Association and is currently a board member of the Maestro Foundation. We believe Dr. Mendelsohn is qualified to 2007,serve on the combined company’s board of directors because of his scientific background and his senior management experience in the biotechnology industry.

Truc Le, M.B.A.: Mr. Randolph was DirectorLe brings over 35 years of Manufacturing Engineering at Boston Scientific Corp., a worldwide manufacturer of medicalmanufacturing, quality, and overall operations experience with devices and complex drug-device combination products. From 2001 to 2003, Mr. Randolph was a Director of Manufacturing Engineering at Cygnus, Inc., manufacturer of non-invasive transdermal drug delivery systems. Mr. Randolph received his Master of Science in Engineering from Stanford University and his Bachelor of Science in Architecture from Massachusetts Institute of Technology.

Stephen Okland

Mr. Okland, 55, was appointed Chief Commercial Officer in May 2018 after serving as our Commercial Vice President, U.S. and Canada since March 2016. Prior to that Mr. Okland was President of Sanford Rose Associates – Okland Group, Inc., from June 2015 to March 2016, where he specialized in commercial executive talent acquisition for early stage to mid-cap size companies in the medical device space. Previously, he served from July 2012 to July 2014, as Vice President, Worldwide Marketing and Sales, at Miramar Labs, Inc., a company that develops, manufactures, and distributes medical devices to treat dermatologic medical conditions, where he led all commercialization activities. From September 2008 through June 2012, Mr. Okland served as Vice President, Worldwide Marketing and U.S. Sales at Medivance, Inc. where he directed the turnaround of all commercialization activities resulting in a $250 million acquisition by Bard Medical. He served as Vice President, U.S. Sales and Marketing at Spectranetics, Inc., directing all U.S. sales and marketing operations from February 2006 through August 2008, at the period when the company was named to Fortune’s 100 Fastest Growing Companies three years in a row. Mr. Okland served as Chief Operating Officer of VASCA, a medical device start-up company, directing and managing sales, marketing, R&D and manufacturing operations from May 2003 through January 2006. Prior to 2003, he held positions of increasing responsibility during 12 years at Boston Scientific Corporation and at Johnson & Johnson Medical, Inc., where he began his career. He earned a Bachelor of Science degree from the University of Wisconsin and a Masters of Business Administration from Texas Christian University.

Patrick Ryan

Mr. Ryan, 58,Le has served as our Chief Operating Officer since August 2018. Prior to thatthe Merger in 2022. From 2020 until the Merger in 2022, Mr. Ryan served as Chief Operations Officer at Synaptive Medical from January 2016 to March 2018,Le was the Chief Operating Officer at Lucerno Dynamics from July 2015of NPM. From 2011 to December 2015March 2020, Mr. Le was the Chief Technical Operations Officer for Dance Biopharm — a leader in aqueous respiratory therapy delivery with Drug and Insulet Corporation from January 2014Device combination products. As the Chief Technical Operations Officer, he built operations, R&D, quality systems, manufacturing, supply chain, product development, formulation, and IT. From 2009 to July 2015. He also served as2011, Mr. Le was the Chief Operating Officer for Avid Bio Services, Inc., a leading contract development, manufacturing organization (CDMO) that specializes in clinical trials and commercial distribution of monoclonal antibodies and recombinant proteins. From 2007 to 2009, Mr. Le served as the EVP Manufacturing and Quality for PrimaBiomed, a cell therapy company, and as a consultant for several drug/device companies. From 2001 to 2007, Mr. Le was Senior Vice President International,of Operations, Product Development, Quality, and Regulatory Affairs for Nektar Therapeutics, a biopharmaceutical company, where he led the commercial formulation and device manufacturing for Exubera^®. From 1999 to 2001, he consulted for multiple large pharmaceutical and medical device companies, including Abbott, Medtronic, Baxter, and Dow Chemical, where he specialized in due-diligence, operation effectiveness, and PAI readiness. From 1981 to 1999, Mr. Le was employed for a division of Johnson & Johnson, a multinational company that develops medical devices, pharmaceutical products, and consumer packaged goods, as the Worldwide Vice-President of Regulatory Compliance and Quality Systems. His work at Alphatec SpineJohnson & Johnson included more than ten years in operations, regulatory affairs, product development, manufacturing, and quality for ophthalmic products such as cataract devices and implants and drug products for ophthalmic surgery procedures. Mr. Le has a B.S. in mechanical engineering and a M.B.A. in Management. He completed numerous executive leaderships training programs, including World Class Manufacturing at Duke University, Executive Management at Harvard University, and a QSR trainer at AAMI/FDA. 

Lisa Porter, M.D.: Dr. Porter has over 25 years of experience in developing medicines for metabolic diseases with a focus on bringing innovative therapies to patients with high unmet need. She serves as our Chief Medical Officer since 2022. From 2020 until the Merger in 2022, Dr. Porter was the Chief Medical Officer of NPM. Before 2020, she served as CMO, Metabolic Diseases for Eiger Biopharmaceuticals, a clinical-stage biopharmaceutical company, where she led clinical development for the orphan diseases post bariatric hypoglycemia and Hutchinson-Gilford Progeria Syndrome resulting in FDA breakthrough therapy designation for both programs. Dr. Porter worked at Eiger Biopharmaceuticals from May 20112017 – 2018. She served as CMO for Dance BioPharma (now Aerami Therapeutics), a company developing inhaled therapies for the treatment of severe respiratory and chronic diseases, from 2014 to January 2014. Earlier2017 and Vice President, Medical Development for Amylin Pharmaceuticals, a biopharmaceutical company, from 2009 to 2013 where she led the R&D efforts for the Amylin-Lilly Alliance, culminating in Mr. Ryan’s career, hethe approval of the GLP-1 agonist Bydureon, the first once weekly treatment for Type 2 diabetes. Prior to joining Amylin, Dr. Porter held multipleprogressively increasing leadership positions at GuidantGlaxoSmithKline Pharmaceuticals, a multinational pharmaceutical company, from 1999 to 2004 with responsibilities for the clinical strategy for Avandia and Abbott Vascular, including Divisional Vice President of Worldwide Operations at Abbott Vascular as well as Vice President & Managingearly obesity compounds. She was Associate Medical Director for Guidant’s manufacturing facilityZeneca Pharmaceuticals, a multinational pharmaceutical and biotechnology company, from 1997 to 1999. Dr. Porter was a board member of Viacyte, Inc. from January 2022 until its acquisition by Vertex was completed in Ireland. Following his graduationSeptember 2022. Dr. Porter earned a B.S. in Biology from the United States Naval Academy with a BachelorCollege of Science degreeWilliam & Mary, an M.D. from Duke University and completed fellowship training in Economics, Mr. Ryan served as an officer in the U.S. Navy. He then received a Master of Science degree in Petroleum Management from the University of Kansas.Endocrinology and Hypertension at Brigham and Women’s Hospital.

Former Officer

Thomas B. Miller

Mr. Miller, 61, served asBrigid A. Makes, M.B.A.: Ms. Makes joined our Chief Financial Officer since May 2014 to March 2018. From 2000 to 2014 he was Chief Financial Officer of Ixia, a public company engaged in the design and manufacture of network test and monitoring products for the telecommunications industry. From 1997 to 1999 he was the Director of Finance and Controller of CoCensys, a public biotechnology company engaged in the discovery and development of new drugs to treat neurological and psychiatric disorders. Mr. Miller received a Master of Business Administration from the University of Southern California and a Bachelor of Arts, Economics from the University of California, Berkeley. Mr. Miller resigned from all of positions with the Company including his position as Chief Financial Officer in March 2018.2022. From 2017 to 2022, she served as an independent consultant for primarily private medical device companies. Prior to that, Ms. Makes served as Senior Vice President and Chief Financial Officer of Miramar Labs from 2011 to 2017, a global medical device company dedicated to bringing innovative applications to the aesthetic marketplace, which was acquired by Sientra in July 2017. From 2006 to 2011, Ms. Makes served in the same roles for AGA Medical, a medical device company specializing in the treatment of structural heart defects, which was acquired by St. Jude Medical, in November 2010. Prior to AGA Medical, from 1999 to 2006, Ms. Makes served in a variety of executive positions, including as Chief Financial Officer, for Nektar Therapeutics (formerly Inhale Therapeutics), a biopharmaceutical company. Ms. Makes also served as Chief Financial Officer for Oravax, a biopharmaceutical company, from 1998 to 1999 and for Haemonetics Corp, a company specializing in the management of blood supplies, from 1995 to 1998.Since December 2019, Ms. Makes has also been a member of the board of directors of Mind Medicine (MindMed) Inc., a publicly traded neuro-pharmaceutical company, where Ms. Makes serves on the Audit Committee as chair. On April 15, 2023, Ms. Makes provided notice to the board of directors of Mind Medicine of her decision not to stand for re-election at the 2023 annual general meeting of shareholders of Mind Medicine.  Since 2020, Ms. Makes also serves as a director of Aziyo Biologics (“Aziyo”), a commercial-stage regenerative medicine company. Ms. Makes chairs both the Audit and Compensation Committees and is on the Corporate Governance & Nominating Committee for Aziyo. Since June 2021, Ms. Makes has served as a director and chair of the Audit Committee for Quantum-Si, Inc., a life science tools company focused on commercializing a unique protein sequencing platform. Ms. Makes also serves on the Compensation Committee. Ms. Makes holds a Bachelor of Commerce degree in Finance and International Business from McGill University and an M.B.A. from Bentley University.

Donald Dwyer, M.B.A.: Mr. Dwyer has served as the Chief Business Officer since the Merger in 2022. Prior to this, Mr. Dwyer was at NPM and served as Chief Business Officer from 2021 to 2022, as consultant from 2019 to 2020 and as an observer to NPM board of directors from 1996 to 2019 (while employed at AstraZeneca). He is a science-based business leader with over 40 years of experience in the biopharmaceutical industry and a broad background in leadership across a wide range of technologies and disease areas. Mr. Dwyer has held director level positions in quality assurance/control and regulatory affairs at Rhone-Poulenc Rorer (now part of Sanofi), from 1986 to 1993 and Cephalon (now part of Teva Pharmaceuticals), from 1993 to 1995); and drug development, sales, commercial and business development at AstraZeneca, from 1995 to 2019. He also served as AstraZeneca’s observer on the Board of Directors for PhaseBio, a clinical-stage biopharmaceutical company until a successful IPO, (2014 – 2018) and NPM (2015 – 2019). At AstraZeneca,, he was Executive Director Business Development and Early Asset (pre-Phase 3) Commercial lead for Cardiovascular, Renal and Metabolic Disease where he co-led the $2.7B acquisition of LOKELMA (hyperkalemia) from ZS Pharma and the $1.2B licensing and co-commercialization deal for TC-5214 (major depressive disorder) with Targacept. On the divestment side, Don was also co-lead on multiple projects including the ZOLADEX implant (cancer), Earlier in his career, he was the US commercial head for key brands including TOPROL-XL (heart failure, hypertension, angina); ATACAND (hypertension); ONGLYZA (diabetes); FARXIGA (diabetes); SEROQUEL (bipolar disorder) and ABRAXANE (cancer). Mr. Dwyer is a graduate of the University of Central Connecticut (chemistry/biology) and Temple University Fox School of Business (M.B.A.).

EXECUTIVE COMPENSATION

2022 Summary Compensation Table for 2018

The following table provides information regarding the total compensation ofawarded to, earned by, or paid to our named executive officers, or “NEOs”“NEOs,” during 2018. As an “emerging growth company” as defined in the JOBS Act, we are not required to include a Compensation Discussion and Analysis section and have elected to comply with the scaled disclosure requirements applicable to emerging growth companies

The amounts represented in the “Option Awards” column reflect the aggregate grant date fair value of stock awards and option awards granted, calculated in accordance with ASC Topic 718, disregarding the estimate for forfeitures. The assumptions we used for calculating the grant date fair values are set forth in Note 9 of Notes to our consolidated financial statements included in our Annual Report on Form 10-K for the fiscal yearyears ended December 31, 20182021 and does not necessarily equate to the income that will ultimately be realized by the NEOs for such awards.2022.