As Filed Withfiled with the Securities and Exchange Commission on October 30, 2017April 22, 2024

Registration No. 333-_________333-

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.

WASHINGTON, DC 20549

 

FormFORM S-3

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Second Sight Medical Products, Inc.VIVANI MEDICAL, INC.

(Exact name of registrant as specified in its charter)

Delaware02-0692322

(State or other jurisdiction of

incorporation or organization)

(I.R.S. Employer

Identification Number)

California1350 S. Loop Road

(State or other jurisdiction of incorporation)Alameda, California 94502

02-0692322(415) 506-8462

(IRS Employer Identification Number)

12744 San Fernando Road, Suite 400
Sylmar, CA 91342
(818) 833-5000

(Address, including zip code, and telephone number,

including area code, of registrant’s principal

executive offices)

 

Will McGuireAdam Mendelson, Ph.D.

Chief Executive Officer

Second SightVivani Medical, Products, Inc.
12744 San Fernando Road, Suite 400
Sylmar, CA 91342
(818) 833-5000

1350 S. Loop Road

Alameda, California 94502

(415) 506-8462

(Name, address, including zip code, and telephone

number, including area code, of agent for service)

 

Copies to:

 

Aaron A. Grunfeld, Esq.

Law Offices of Aaron A. Grunfeld & Associates

11111 Santa Monica Boulevard, Suite 1840

Los Angeles, CA 90025

(310) 788-7577

Deepa M. Rich

Adam V. Johnson

Jacqueline R. Kaufman

Goodwin Procter LLP

620 8th Avenue

New York NY 10018

(212) 813-8800

 

Approximate date of commencement of proposed sale to the public:

public: From time to time or at one time as determined by the Registrant after the effective date of this Registration Statement

registration statement.

 

If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐

 

If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐

 

If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐

 

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

 

 
Large accelerated filer☐Accelerated filer☐
Non-accelerated filer☒Smaller reporting company☒
 Non-accelerated  filer   ☐Smaller reporting
Emerging growth company☐
(do not check if a smaller reporting company) 


CALCULATION OF REGISTRATION FEE

Title of Each Class 
of Securities to 
be Registered(1)		 Amount 
to be 
Registered(2)		  Proposed 
Maximum 
Offering 
Price per Share(2)		  Proposed 
Maximum 
Aggregate 
Offering Price(2)		  Amount of 
Registration 
Fee(2)		 
Common Stock                
Preferred Stock                
Debt Securities                
Units                
Warrants                
Total for sale by Registrant         $100,000,000  $12,450(3) 

(1) This Registration Statement covers (i) debt securities, common stock, preferred stock and common stock that may be issued upon exercise of warrants and (ii) such indeterminate amount of securities as may be issued in exchangeIf an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or upon conversion of, as the case may be, the securities registered hereunder. In addition, securities registered hereunder may be sold separately or as units with other securities registered hereunder. 

revised financial accounting standards provided pursuant to Section 7(a)(2) An indeterminate number(B) of the securities is being registered as may at various times be issued at indeterminate prices, with an aggregate public offering price not to exceed $100,000,000 or the equivalent thereof in one or more currencies or, if any debt securities are issued at any original issuance discount, such greater principal amount as shall result in an aggregate initial offering price of $100,000,000.

(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the Securities Act. ☐

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with SectionTHE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) of the Securities Act ofOF THE SECURITIES ACT OF 1933, or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said SectionAS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a), may determine.MAY DETERMINE.

 

2

 

 

EXPLANATORY NOTE

 

This registration statement contains two prospectuses:contains:

 

●a base prospectus which covers the offering, issuance and sale by Vivani Medical, Inc., or the registrantRegistrant, of the securities identified therein from time to time in one or more offerings with a total value of up to a maximum aggregate offering price of $100,000,000 of the registrant’s common stock, preferred stock, debt securities, units, and warrants;$300,000,000; and

 

●a sales agreement prospectus covering the offering, issuance and sale by the registrantRegistrant of up to a maximum aggregate offering price of $13,648,000$75,000,000 of the registrant’sour common stock that may be issued and sold from time to time under a sales agreement with FBR Capital Markets & Co.the Open Market Sale AgreementSM, or the Sales Agreement, by and H.C. Wainwright & Co., LLCbetween us and Jefferies LLC.

 

The base prospectus immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will be specified in a prospectus supplement to the base prospectus. The specific terms of the securities to be issued and sold under the Sales Agreement are specified in the sales agreement prospectus that immediately follows the base prospectus. The common stock that may be offered, issued and sold by the registrant under the sales agreement prospectus is included in the $100,000,000$300,000,000 of securities that may be offered, issued and sold by the registrant under the base prospectus. AnyUpon termination of the Sales Agreement, any portion of the $13,648,000$75,000,000 included in the sales agreement prospectus that is not previously sold or included in an active placement notice pursuant to the sales agreement isSales Agreement will be available for sale in other offerings pursuant to the base prospectus.

The information in this preliminary prospectus is not complete and if no shares are sold under the sales agreement, the full $100,000,000 ofmay be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in other offerings pursuant toany jurisdiction where the base prospectus and a corresponding prospectus supplement.


THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.offer or sale is not permitted.

 

Subject to Completion, dated October 30, 2017SUBJECT TO COMPLETION, DATED APRIL 22, 2024

 

SECOND SIGHT MEDICAL PRODUCTS, INC.PROSPECTUS

 

$100,000,000

 

$300,000,000

Common Stock

Preferred Stock

Debt Securities

Warrants

Units
Warrants

 

From time to time, we may offer and sell up to an$300,000,000 in aggregate of $100,000,000principal amount of our common stock, preferred stock, debt securities, and warrants, individuallyCommon Stock, Preferred Stock, Debt Securities, Warrants or Units, in unitseach case in one or more offerings. This prospectus provides you with a general descriptionissuances and at prices and on terms that we will determine at the time of the securities.offering.

 

Each time we offer and sellThis prospectus describes the general manner in which any of these securities wemay be offered using this prospectus. We will provide aspecify in an accompanying prospectus supplement to this prospectus that contains specific information about the offering and the amounts, prices and terms of the securities.securities offered and other details regarding the offering thereof. The supplement may also add, update or change information contained in this prospectus with respect to that offering. You should carefully read this prospectus and

Our common stock is listed on The Nasdaq Capital Market under the applicable prospectus supplement before you invest in anysymbol “VANI.” On April 19, 2024, the closing price of our securities.common stock, as reported on The Nasdaq Capital Market, was $1.70 per share.

We may offer and sell the securities described in this prospectus and any prospectus supplement to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods. If any underwriters, dealers or agents are involved in the sale of any of the securities, their names and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable prospectus supplement. See the sections of this prospectus entitled “About this Prospectus” and “Plan of Distribution” for more information. No securities may be sold without delivery of this prospectus and the applicable prospectus supplement describing the method and terms of the offering of such securities.  

 

We are an “emerging growth company” as defined under the federal securities laws and are subject to reduced public company reporting requirements. Investing in our securities involves a high degree of risk.risks. You should review carefully the risks and uncertainties referenceddescribed under the heading “Risk Factors” on page 106 of this prospectus as well as those containedand under any similar heading in the applicable prospectus supplement and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus, as well as “Special Note Regarding Forward-Looking Statements” on page 3 of this prospectus. You should read the entire prospectus and any applicable prospectus supplement carefully before you make your investment decision.

 


Our common stockThe securities covered by this prospectus may be sold directly by us to investors, through agents designated by us from time to time or through underwriters or dealers at prices and warrants are traded on The Nasdaq Capital Market underterms to be determined at the symbol “EYES”time of offering. We will include in an applicable prospectus supplement the names of any underwriters or agents and “EYESW” respectively. On October 26, 2017 the last reported price of our common stock and warrantsany applicable commissions or discounts. Additional information on the Nasdaq Capital Market was $1.09 and $0.29, respectively.

methods of sale appears under “Plan of Distribution” in this prospectus. We will also describe in an applicable prospectus supplement the way(s) in which we expect to use the net proceeds we receive from any sale.

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

This prospectus may not be used to offer or sell any securities unless accompanied by a prospectus supplement.

 

The date of this Prospectusprospectus is                                  , 2017.2024.


TABLE OF CONTENTSTable of Contents

 

 Page
 Page
ABOUT THIS PROSPECTUS7 
SECOND SIGHT MEDICAL PRODUCTS, INC.8 
RISK FACTORS10 
THE SECURITIES WE MAY OFFER10 
RATIO OF EARNINGS TO FIXED CHARGES12 
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS13 
USE OF PROCEEDS14 
DESCRIPTION OF CAPITAL STOCK14 
DESCRIPTION OF WARRANTS17 
DESCRIPTION OF DEBT SECURITIES20 
LEGAL OWNERSHIP OF SECURITIES29 
PLAN OF DISTRIBUTION33 
LEGAL MATTERS36 
EXPERTS36 
1
WHERE YOU CAN FIND MORE INFORMATION36 
1
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE36 2
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS3
ABOUT THE COMPANY5
RISK FACTORS6
USE OF PROCEEDS7
DIVIDEND POLICY8
GENERAL DESCRIPTION OF SECURITIES9
DESCRIPTION OF CAPITAL STOCK10
DESCRIPTION OF DEBT SECURITIES14
DESCRIPTION OF WARRANTS20
DESCRIPTION OF UNITS21
PLAN OF DISTRIBUTION24
LEGAL MATTERS27
EXPERTS27

 

You should rely only on the information contained or incorporated by reference in this prospectus and in an applicable prospectus supplement to this prospectus. We have not authorized any other person to provide you with different or additional information. If anyone provides you with different, additional or inconsistent information, you should not rely on it. We do not take responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. We are not making an offer to sell these securities or soliciting any offer to buy these securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in this prospectus, any applicable prospectus supplement or any free writing prospectus we authorize to be delivered to you is accurate only as of the date of that document or any other date set forth in that document. Additionally, any information we have incorporated by reference in this prospectus or in any applicable prospectus supplement is accurate only as of the date of the document incorporated by reference or other date set forth in that document, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any sale of securities. Our business, financial condition, results of operations, cash flow and prospects may have changed since that date.


ABOUT THIS PROSPECTUS

 

This prospectus is part of a registration statement on Form S-3 that we have filed with the Securities and Exchange Commission, or the SEC, using a “shelf” registration process.

Under this shelf registration process, we may sell common stock, preferred stock, debtthe securities and warrantsdescribed in this prospectus in one or more offerings for an aggregate offering amount of up to a total dollar amount of $100,000,000.$300,000,000. This prospectus provides you with adescribes the general description ofmanner in which we may offer the securities we may offer.described in this prospectus. Each time we offer a type or series ofsell securities underpursuant to this prospectus,registration statement, we will provide a prospectus supplement that will contain more specific information about the terms of those securities.offering and the securities offered, and may also add, update or change information contained in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. We may also add, update or change in the prospectus supplement (and in any related free writing prospectus that we may authorize to be provided to you) any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. If there is any inconsistency between information in this prospectus and any accompanying prospectus supplement or free writing prospectus, you should rely on the information in the most recent applicable prospectus supplement or free writing prospectus and documents incorporated by reference herein and therein. This prospectus may not be used to offer to sell, solicit an offer to buy or consummate a sale of our securities unless it is accompanied by a prospectus supplement.

This prospectus, together with any accompanying prospectus supplement together with any additional information incorporated by reference, contains important information you should know before investing in our securities, including important information about us and the securities being offered. You should carefully read both documents, as well as the additional information contained in the documents described under “Where You Can Find More Information” and “Incorporation of Certain Information by Reference” in both this prospectus and the applicable prospectus supplement, and in particular the annual, quarterly and current reports and other documents we file with the SEC. Neither this prospectus nor any accompanying prospectus supplement is an offer to sell these securities or is soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

WHERE YOU CAN FIND MORE INFORMATION

We have filed with the SEC a registration statement on Form S-3 under the Securities Act of 1933, as amended, or the Securities Act, with respect to the securities offered by this prospectus and any applicable prospectus supplement. This prospectus and the applicable prospectus supplement do not contain all of the information set forth in the registration statement and its exhibits and schedules in accordance with SEC rules and regulations. For further information with respect to us and the securities being offered by this prospectus and the applicable prospectus supplement, you should rely onread the prospectus supplement. We urge you to carefully readregistration statement, including its exhibits and schedules. Statements contained in this prospectus anyand the applicable prospectus supplement, and any related free writing prospectus, together with the informationincluding documents that we have incorporated herein by reference, as described underto the headings “Wherecontents of any contract or other document referred to are not necessarily complete, and, with respect to any contract or other document filed as an exhibit to the registration statement or any other such document, each such statement is qualified in all respects by reference to the corresponding exhibit. You Can Find More Information” and “Incorporation by Reference” before buying anyshould review the complete contract or other document to evaluate these statements. You may obtain copies of the securities being offered.registration statement and its exhibits via the SEC’s EDGAR database or our website.

 

We have not authorized anyone to provide youfile annual, quarterly and current reports, proxy statements and other documents with the SEC under the U.S. Securities Exchange Act of 1934, as amended, or the Exchange Act. The SEC maintains a website that contains reports, proxy and information different fromstatements and other information regarding issuers, including us, that file electronically with the SEC. You may obtain documents that we file with the SEC at www.sec.gov.

We also make these documents available on our website at www.vivani.com. Our website and the information contained infound on or accessible through our website is not a part of, or incorporated by reference into, this prospectus or any prospectus supplement, and you should not consider it part of this prospectus or any prospectus supplement.


INCORPORATION OF CERTAIN INFORMATION BY REFERENCE

SEC rules permit us to incorporate information by reference in this prospectus and any applicable prospectus supplement. This means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is considered to be part of this prospectus and any applicable prospectus supplement, and any related free writing prospectus that we may authorize to be provided to you. No dealer, salesperson or other person is authorized to give anyexcept for information or to represent anything notsuperseded by information contained or incorporated by reference in this prospectus or the applicable prospectus supplement itself or in any subsequently filed incorporated document. This prospectus and any applicable prospectus supplement or any related free writing prospectusincorporate by reference the documents set forth below that we may authorizehave previously filed with the SEC, other than information in such documents that is deemed to be providedfurnished and not filed. These documents contain important information about us and our business and financial condition.

●Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 26, 2024;

●Current Reports on Form 8-K filed with the SEC on January 10, 2024, March 5, 2024 and March 6, 2024;

●The description of our common stock contained in Exhibit 4.5 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 26, 2024, including any amendments or reports filed for the purpose of updating such description.

All documents that we file (but not those that we furnish) pursuant to you. We take no responsibility for,Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of the initial registration statement of which this prospectus is a part and can provide no assurances asprior to the reliabilityeffectiveness of any other information that others may give you. Thisthe registration statement shall be deemed to be incorporated by reference into this prospectus is an offer to sell only the securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume thatwill automatically update and supersede the information in this prospectus, and any applicable prospectus supplementpreviously filed documents. All documents that we file (but not those that we furnish) pursuant to Section 13(a), 13(c), 14 or any related free writing prospectus is accurate only as15(d) of the Exchange Act on or after the date onof this prospectus and prior to the fronttermination of the document and thatoffering of any information we haveof the securities covered under this prospectus shall be deemed to be incorporated by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus, any applicable prospectus supplement or any related free writing prospectus, or any sale of our securities. Our business, financial condition, results of operations and prospects may have changed since that date. This prospectus incorporates by reference, and any prospectus supplement or free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding the market and industry data presented ininto this prospectus and will automatically update and supersede the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” containedinformation in this prospectus, the applicable prospectus supplement and any previously filed documents.

Any statement contained herein or in a document incorporated or deemed to be incorporated by reference in this prospectus or the applicable prospectus supplement shall be deemed to be modified or superseded for purposes of this prospectus and such applicable prospectus supplement to the extent that a statement contained in this prospectus or such applicable prospectus supplement, or in any other subsequently filed document which also is or is deemed to be incorporated by reference in this prospectus and such applicable prospectus supplement, modifies or supersedes such earlier statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus or such applicable prospectus supplement.

Documents incorporated by reference are available from us without charge, excluding all exhibits unless specifically incorporated by reference as an exhibit to this prospectus and the applicable prospectus supplement.

Prospective investors may obtain documents incorporated by reference in this prospectus and the applicable prospectus supplement at no cost by requesting them in writing or by telephone from us at our executive offices at:

Vivani Medical, Inc.

1350 S. Loop Road,

Alameda, CA 94502

Attention: Investor Relations

(415) 506-8462


SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus, together with any accompanying prospectus supplement, includes and incorporates by reference “forward-looking statements” within the meaning of the U.S. Private Securities Litigation Reform Act of 1995 and releases issued by the SEC and within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. All statements other than statements of historical facts contained in this prospectus are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as “anticipate,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “ongoing,” “plan,” “potential,” “predict,” “project,” “should,” “will,” “would” or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these identifying words. These forward-looking statements include, but are not limited to, statements about:

●our anticipated operating and financial performance, business plans, and prospects;

●expectations for our products, including anticipated regulatory submissions, study completion, approvals, clinical trial results and other developing data that become available, potential market size, and potential reimbursement pathways;

●the timing and likelihood of, and our ability to obtain and maintain, regulatory clearance of our Investigational New Drug  applications for and regulatory approval of our product candidates;

●our ability to create and maintain a pipeline of product candidates;

●our ability to advance any product candidate into, and successfully complete clinical trials;

●our ability to initiate and successfully maintain operations of our subsidiary in Australia, including with respect to studies of our products and product candidates;

●the initiation, timing, design, progress and results of our clinical trials, and our research and development program;

●the success of the business combination on including future capital expenditures, expenses, synergies, economic performance, indebtedness, financial condition, losses, future prospects, business and management strategies for the management, expansion and growth of the combined company’s operations and other conditions to the successful synergies of the business combination;

●the impacts of the ongoing COVID-19 pandemic and macroeconomic factors that could impact our business, such as supply chain and inflationary pressures and the effects of the Russian invasion of Ukraine on the global economy, on our business or operations; and

●the impact of laws and regulations in the United States and foreign countries on various aspects of our operations, including our regulatory and clinical strategy.

These statements relate to future events or to our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. In evaluating such forward-looking statements, you should specifically consider various factors that may cause actual results to differ materially from current expectations, including the risks outlined under the heading “Risk Factors” contained in this prospectus and any related prospectus supplement or free writing prospectus, and under similar headings in any other documents that are incorporated by reference intoherein or therein (including in our most recent annual report on Form 10-K, subsequent quarterly reports on Form 10-Q and other filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act). Any forward-looking statement in this prospectus. Accordingly, investorsprospectus or any related prospectus supplement or free writing prospectus reflects our current view with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, results of operations, industry and future growth. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.


In addition, statements that “we believe” and similar statements reflect our beliefs and opinions on the relevant subject. These statements are based upon information available to us as of the date of this report, and while we believe such information forms a reasonable basis for such statements, such information may be limited or incomplete, and our statements should not be read to indicate that we have conducted an exhaustive inquiry into, or review of, all potentially available relevant information. You should read thisThese statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements as predictions of future events. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.

Market and Industry Data and Estimates

This prospectus, together with any accompanying prospectus supplement and the documentsinformation incorporated herein or therein by reference, also contains estimates, projections and other information concerning our industry, our business, and the markets for certain diseases, including data regarding the estimated size of those markets, and the incidence and prevalence of certain medical conditions. Information that is based on estimates, forecasts, projections, market research or similar methodologies is inherently subject to uncertainties and actual events or circumstances may differ materially from events and circumstances reflected in the accompanying prospectus(es),this information. Unless otherwise expressly stated, we obtained this industry, business, market and any free writing prospectus that we have authorized for use in connection with this offering, in their entirety before making an investment decision.other data from reports, research surveys, studies and similar data prepared by market research firms and other third parties, industry, medical and general publications, government data and similar sources.

 


Unless the context otherwise requires, referencesTrademarks

We own various U.S. federal trademark applications and unregistered trademarks, including our company name. All other trademarks or trade names referred to in this prospectus to “Second Sight,” “the Company,” “we,” “us” and “our” refer to Second Sight Medical Products, Inc. Second Sight®,are the Second Sight logo, FLORA®, and Argus® are registered trademarks, and Orion is a trademark of Second Sight Medical Products, Inc. All other product and company names are trademarksproperty of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus are referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto.


ABOUT THE COMPANY

 

SECOND SIGHT MEDICAL PRODUCTS, INC.

Second Sight was founded in 1998 with a mission to develop, manufacture, and market prosthetic devices that restore some useful vision to blind individuals. Our principal offices are located in Sylmar, California, approximately 25 miles northwest of downtown Los Angeles. We also have an office in Lausanne, Switzerland, that manages our commercial and clinical operations in Europe,The following highlights information about the Middle East and Asia.

Our current product, the Argus® II System, treats outer retinal degenerations, such as retinitis pigmentosa, which is a hereditary disease, affecting an estimated 1.5 million people worldwide including about 100,000 people in the United States. Retinitis Pigmentosa causes a progressive degeneration of the light-sensitive cells of the retina, leading to significant visual impairment and ultimately blindness. The Argus II System is the only retinal prosthesis approved in the United States by the Food and Drug Administration (FDA), and was the first approved retinal prosthesis in the world. The Argus II System provides an artificial form of vision that differs from the vision of people with normal sight. It does not restore normal vision and it does not slow or reverse the progression of the disease. Results vary among patients and while the majority of patients receive a significant benefit from the Argus II, some patients report receiving little or no benefit.

We began selling the Argus II System in Europe at the end of 2011, Saudi Arabia in 2012, the United States and Canada in 2014, Turkey in 2015, and Taiwan, South Korea and Russia in 2017. With the exception of Taiwan and Russia, we have full regulatory approval to sell in these regions. In Taiwan and Russia we have limited regulatory approval but we are working to obtain full regulatory approval in both countries. We sell primarily through our direct sales force, but use distributors in certain countries.

We believe we can further expand our markets to include nearly all profoundly blind individuals, other than those who are blind due to preventable diseases or due to brain damage, by developing a visual cortical prosthesis. We refer to this product as the Orion I visual prosthesis system. We estimate that there are approximately 5.8 million people worldwide who are legally blind due to causes other than preventable conditions. If approved for marketing, the FDA and other regulatory agencies will determine the subset of these patients who are eligible for the Orion I based on our clinical trial and the associated results.


Our objective in designing and developing the Orion I visual prosthesis system is to bypass the optic nerve and directly stimulate the part of the brain responsible for vision. We currently have a conditional approval from the FDA to begin a U.S. feasibility study at two leading university hospital sites and have applied for approval with European Competent authorities to begin a feasibility trial in Europe. This study will confirm initial findings in our human pilot study we announced in the fourth quarter of 2016, and provide the first human data of a fully functional wireless visual cortical stimulator system including the external video camera system. We expect to implant and activate our Orion I visual prosthesis system in human subjects later this year. This study will provide the first human data of a fully functional wireless visual cortical stimulator system including an external video camera system. This initial study in a small number of subjects, if successful, should also form the basis for an expansion to a pivotal clinical trial in 2018. We have demonstrated the highly important and unique ability to design products with long-term reliability and as of October 19, 2017, we have 412 issued patents and 98 pending patent applications, on a worldwide basis. 

9

RISK FACTORS

An investment in our securities involves a high degree of risk. Prior to making a decision about investing in our securities, you should carefully consider the specific risk factors discussed in the sections entitled “Risk Factors” contained in any applicable prospectus supplementRegistrant and our filings with the SEC, which are incorporated by reference in this prospectus, together with all of the other informationbusiness contained in this prospectus, any applicable prospectus supplement or free writing prospectus,elsewhere or incorporated by reference in this prospectus. These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and uncertainties not presently known to us, or that we currently view as immaterial, may also impair our business. If any of the risks or uncertainties described in our SEC filings or any prospectus supplement or any additional risks and uncertainties actually occur, our business, financial condition and results of operations could be materially and adversely affected. In that case, the trading price of our securities could decline and you might lose all or part of your investment.

THE SECURITIES WE MAY OFFER

We may issue from time to time, in one or more offerings the following securities:

●shares of common stock;
●

shares of preferred stock;

●notes, debentures or other debt securities;
●warrants to purchase shares of preferred stock or common stock; or
●any combination of common stock, preferred stock, debt securities or warrants.

When we use the term “securities” in this prospectus, we mean any of the securities we may offer with this prospectus, unless we say otherwise. This prospectus, including the following summary, describes the general terms that may apply to the securities; the specific terms of any particular securities that we may offer will be described in a separate supplement to this prospectus, information incorporated by reference or related free writing prospectus, which may be in addition to or different from the general terms summarized in this prospectus. . However, no prospectus supplement or free writing prospectus will offer a security thatIt is not registeredcomplete and described in this prospectus at the time of the effectiveness of the registration statement of which this prospectus is a part.

 The summaries contained in this prospectus and in any prospectus supplements, information incorporated by reference or related free writing prospectus maydoes not contain all of the information that you would find useful. Accordingly,should consider before investing in any of our securities. You should carefully read this prospectus together with the more detailed information incorporated by reference in this prospectus.

Overview

We are a preclinical stage biopharmaceutical company which develops miniaturized, subdermal implants utilizing our proprietary NanoPortal™ technology to enable long-term, near constant-rate delivery of a broad range of medicines to treat chronic diseases. We use this platform technology to develop and potentially commercialize drug implant candidates, alone or in collaboration with pharmaceutical company partners to address a leading cause of poor clinical outcomes in the treatment of chronic disease, medication non-adherence. For example, approximately 50% of patients treated for type 2 diabetes are non-adherent to their medicines, which can lead to poor clinical outcomes. We are developing a portfolio of miniature, sub-dermal drug implant candidates that, unlike most oral and injectable medicines, are designed with the goal of guaranteeing adherence by delivering therapeutic drug levels for up to 6 months or longer. In addition, our aim is to minimize fluctuations in patients’ drug levels through the use of our NanoPortal technology, which may improve the tolerability profiles for medicines that produce side effects associated with fluctuating drug levels in the blood.

Our implant technology, which we refer to as NanoPortal, utilizes a space-efficient design that allows a miniaturized implant to provide many months of therapeutic delivery of potent molecules. The technology has no moving parts, which is intended to minimize fluctuating drug delivery over the duration of the implant and is also tunable. We have primarily been developing implant candidates around peptide therapeutics, but the technology has potential application across a wide range of molecular types. The key innovative component of the technology is a biocompatible titanium-oxide nano-porous membrane which consists of millions of precisely sized nanotubes whose inner diameters represent the only path for drug molecules to exit the reservoir once the implant is fully assembled.

Company History and Information

We were incorporated under the laws of California on December 17, 2009 and our operations began in 2010. In February 2022, we announced the signing of a definitive merger agreement between Nano Precision Medical, Inc., or NPM and Second Sight Medical Products, Inc., or Second Sight, pursuant to which NPM became a wholly owned subsidiary of Second Sight. On August 30, 2022, the merger closed and the combined company of NPM and Second Sight was renamed Vivani Medical, Inc. On July 6, 2023, we changed our state of incorporation from the State of California to the State of Delaware by means of a plan of conversion, effective July 5, 2023. Our corporate office is located at 1350 S. Loop Road, Alameda, CA 94502, our telephone number is (415) 506-8462; and our website is located at www.vivani.com.We do not incorporate the information on or accessible through our website into this prospectus, and you should readnot consider any information on, or that can be accessed through, our website as part of this prospectus.

We own various U.S. federal trademark applications and unregistered trademarks, including our company name. All other trademarks or trade names referred to in this prospectus are the actual documents relatingproperty of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus are referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto.

Implications of Being a Smaller Reporting Company

We are a “smaller reporting company” as defined in the Exchange Act. As a result, we may take advantage of certain of the scaled disclosures available to smaller reporting companies. We will remain a smaller reporting company until the fiscal year following the determination that our common stock held by non-affiliates is more than $250 million measured on the last business day of our second fiscal quarter, or our annual revenues are less than $100 million during the most recently completed fiscal year and our common stock held by non-affiliates is more than $700 million measured on the last business day of our second fiscal quarter.


RISK FACTORS

Investing in our securities sold pursuantinvolves certain risks. Before you invest in any of our common stock, preferred stock, debt securities, warrants or units, in addition to the other information included in, or incorporated by reference into, this prospectus.prospectus, you should carefully consider the risk factors contained in our Annual Report on Form 10-K for the year ended December 31, 2023 filed with the SEC on March 26, 2024 which is incorporated into this prospectus by reference, as updated by our annual or quarterly reports for subsequent fiscal years or fiscal quarters that we file with the SEC and that are so incorporated. See “Where“Where You Can Find More Information”Information” and “Incorporation“Incorporation of DocumentsCertain Information by Reference”Reference” for information about how to obtain copiesa copy of thosethese documents.

You should also carefully consider the risks and other information that may be contained in, or incorporated by reference into, any prospectus supplement relating to specific offerings of securities.


The terms of any particular offering,USE OF PROCEEDS

Unless otherwise described in the initial offering price andapplicable prospectus supplement, we intend to use the net proceeds from the sale of any securities described in this prospectus to us will be containedfund research, product development, and clinical development of current or additional pipeline candidates, working capital, capital expenditures and other general corporate purposes.

We may set forth additional information concerning our expected use of net proceeds from sales of securities in the applicable prospectus supplement information incorporated by reference or free writing prospectus, relating to each offering. Where applicable, a prospectus supplement, information incorporated by reference or related free writing prospectus will also describe any material United States federal income tax consequences relating to the specific offering. Pending use of net proceeds as described above, we may invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade, interest-bearing instruments and U.S. government securities. We have not determined the amount of net proceeds to be used specifically for such purposes. As a result, management will retain broad discretion over the allocation of net proceeds.


DIVIDEND POLICY

We have never declared or paid any cash dividends on our capital stock and do not anticipate paying any cash dividends in the foreseeable future. Payment of cash dividends, if any, in the future will solely be at the discretion of our board of directors and will depend on then-existing conditions, including our financial condition, operating results, contractual restrictions, capital requirements, business prospects and other factors our board of directors may deem relevant.


GENERAL DESCRIPTION OF SECURITIES

We may offer shares of common or preferred stock, various series of senior or subordinated debt securities, offeredwarrants, or units consisting of combinations of the foregoing, in each case from time to time under this prospectus, together with the applicable prospectus supplement, at prices and indicate whetheron terms to be determined by market conditions at the time of offering. This prospectus provides you with a general description of the securities offered arewe may offer. At the time we offer a particular type or series of securities, we will be listed on anyprovide an applicable prospectus supplement describing the specific amounts, prices and other important terms of the securities, exchange.including, to the extent applicable:

 

●designation or classification;
●aggregate principal amount or aggregate offering price;
●voting or other rights;
●rates and times of payment of interest, dividends or other payments;
●liquidation preference;
●original issue discount;
●maturity;
●ranking;
●restrictive covenants;
●redemption, conversion, exercise, exchange, settlement or sinking fund terms, including prices or rates, and any provisions for changes to or adjustments in such prices or rates and in the securities or other property receivable upon conversion, exercise, exchange or settlement;
●any securities exchange or market listing arrangements; and
●important U.S. federal income tax considerations.

This prospectus may not be used to offer or sell securities unless it is accompanied by aan applicable prospectus supplement. The applicable prospectus supplement may add, update or change information contained in this prospectus or in documents incorporated by reference in this prospectus. You should read the applicable prospectus supplement related to any securities being offered.

 

We may sell the securities directly to or through underwriters, dealers or agents, underwritersdirectly to purchasers or dealers.through a combination of any of these methods of sale or as otherwise set forth under “Plan of Distribution”. We and our agents,underwriters, dealers or underwriters,agents reserve the right to accept or reject all or part of any proposed purchase of securities. If we do offer securities through agentsunderwriters or underwriters,agents, we will include in the applicable prospectus supplement:supplement (i) the names of the underwriters or agents and applicable fees, discounts and commissions to be paid to them; (ii) details regarding over-allotment options, if any; and (iii) net proceeds to us.

 

●the name of those agents or underwriters;

The following descriptions are not complete and may not contain all the information you should consider before investing in any securities we may offer hereunder; they are summarized from, and qualified by reference to, our certificate of incorporation, bylaws and the other documents referred to in the descriptions, all of which are or will be publicly filed with the SEC, as applicable. See “Where You Can Find More Information.”


DESCRIPTION OF CAPITAL STOCK

 

●applicable fees, discounts and commissions to be paid to them;

The following description summarizes certain important terms of the capital stock of Vivani Medical, Inc. (the “Company,” “Vivani,” “we,” “us,” and “our”) as of the date of this prospectus as specified in our certification of incorporation and our bylaws. Because the following description is only a summary, it does not contain all the information that may be important to you. For a complete description of the matters set forth in this section titled “Description of Capital Stock,” you should refer to the certificate of incorporation and the bylaws, which are exhibits to the registration statement of which this prospectus forms a part, and to the applicable provisions of Delaware General Corporation Law (the “DGCL”).

 

●details regarding over-allotment options, if any; and

General

 

●the net proceeds to us.

The rights of the holders of our Common Stock are governed by the DGCL, our certificate of incorporation, and our bylaws.

Our authorized capital stock consists of Three Hundred Million (300,000,000) shares of common stock, par value $0.0001 per share (the “Common Stock”) and Ten Million (10,000,000) shares of undesignated preferred stock, par value $0.0001 per share (the “Undesignated Preferred Stock”).

Common Stock

 

Common StockVoting Rights. We may issue sharesEach share of our common stock from time to time. Holders of our common stock areCommon Stock is entitled to one vote per share on all matters submitted tostockholder matters. Shares of our Common Stock do not possess any cumulative voting rights. Except for the election of directors, if a quorum is present at any meeting of stockholders, an action on a matter is approved if it receives the affirmative vote of shareholders. Subjectthe majority of the votes properly cast for such matter, unless otherwise required by applicable law, the certificate of incorporation, or bylaws. The election of directors by stockholders will be determined by a plurality of the votes properly cast. The rights, preferences, and privileges of holders of Common Stock are subject to, any preferencesand may be impacted by, the rights of the holders of shares of any series of our preferred stock that we have designated, or may be outstanding, holdersdesignate and issue in the future.

Dividend Rights. Holders of our common stockCommon Stock are entitled to receive dividends when andratably, if any, as may be declared by our board of directors.directors out of legally available funds, subject to preferential dividend rights of any preferred stock then outstanding.

 

Liquidation and Dissolution Rights. Upon voluntary or involuntary liquidation, dissolution or winding up, our net assets shall be distributed pro rata to the holders of our Common Stock.

Other Rights. Holders of our Common Stock are not entitled to preemptive, subscription, redemption, or conversion rights, and no sinking fund provisions are applicable to our Common Stock.

Trading Market. Our Common Stock is listed for trading on the Nasdaq Capital Market under the symbol “VANI.”

Undesignated Preferred Stock. We may

Our board of directors has the authority, without further action by our stockholders, to issue up to 10,000,000 shares of our preferred stock from time to time,Undesignated Preferred Stock in one or more series. Our board of directors will determineseries and to fix the designations, voting powers,rights, preferences, privileges, and restrictions thereof. These rights, preferences, and rights of the preferred stock, as well as the qualifications, limitations or restrictions thereof, includingprivileges could include dividend rights, conversion rights, preemptivevoting rights, terms of redemption, or repurchase, liquidation preferences, sinking fund terms, and the number of shares constituting, any series or the designation of, such series, any series. Convertibleor all of which may be greater than the rights of Common Stock. The issuance of our preferred stock could adversely affect the voting power of holders of our Common Stock and the likelihood that such holders will be convertible intoreceive dividend payments and payments upon our commonliquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring, or exchangeable forpreventing a change in control of our Company or other securities. Conversioncorporate action.


Anti-Takeover Effects of our Certificate of Incorporation and Bylaws and Delaware Law

Our certificate of incorporation and bylaws include a number of provisions that may be mandatoryhave the effect of delaying, deferring or at your optionpreventing another party from acquiring control of us and would be at prescribed conversion rates.encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include the items described below.

 

WarrantsRemoval of Directors and Filling of Vacancies. We

Our certificate of incorporation provide that directors may issue warrantsbe removed only for cause and only upon the affirmative vote of holders of not less than two-thirds (2/3) of the outstanding shares of capital stock then entitled to vote at an election of directors. Furthermore, at least forty-five (45) days prior to any annual or special meeting of stockholders at which it is proposed that any director be removed from office, written notice of such proposed removal, and the alleged grounds thereof shall be sent to the director whose removal will be considered at the meeting. Our certificate of incorporation and bylaws provide that, subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock to elect directors and to fill vacancies in the board of directors related thereto, any and all vacancies in the board of directors, however occurring, including, without limitation, by reason of an increase in the size of the board of directors, or the death, resignation, disqualification, or removal of a director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum of the board of directors, and not by the stockholders. Any director appointed in accordance with the preceding sentence shall hold office for the purchaseremainder of common stock,the full term for which the new directorship was created or the vacancy occurred and until such director’s successor shall have been duly elected and qualified or until his or her earlier resignation, death, or removal. The limitations on removal of directors and treatment of vacancies has the effect of making it more difficult for stockholders to change the composition of our board of directors.

No Written Consent of Stockholders

Our certificate of incorporation provides that any action required or permitted to be taken by the stockholders of the Company at any annual or special meeting of stockholders of the Company must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in lieu thereof. This limit may lengthen the amount of time required to take stockholder actions and would prevent the amendment of our bylaws or removal of directors by our stockholders without holding a meeting of stockholders.

Special Meetings of Stockholders

Our certificate of incorporation and bylaws provide that special meetings of stockholders may be called only by the board of directors acting pursuant to a resolution approved by the affirmative vote of a majority of the directors then in office, and special meetings of stockholders may not be called by any other person or persons.

Amendment to Certificate of Incorporation and Bylaws by Stockholders

As required by the DGCL, any amendment of our certificate of incorporation must first be approved by a majority of our board of directors, and if required by law or our certificate of incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote on the amendment and a majority of the outstanding shares of each class entitled to vote thereon as a class. Our bylaws may be amended by the affirmative vote of a majority of the directors then in office, subject to any limitations set forth in the bylaws, and may also be amended at any annual meeting or special meeting called for such purpose by the affirmative vote of the majority of the outstanding shares entitled to vote on the amendment, in each case voting together as a single class.

Undesignated Preferred Stock

Our certificate of incorporation provides for 10,000,000 authorized shares of Undesignated Preferred Stock. The existence of authorized but unissued shares of preferred stock and/may enable our board of directors to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest, or debt securitiesotherwise. For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests of our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or insurgent stockholder or stockholder group. In this regard, our certificate of incorporation grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of our Common Stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing a change in control of us.


Choice of Forum

Our bylaws provide that unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) 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, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the certificate of incorporation or the 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 (iv) any action asserting a claim governed by the internal affairs doctrine; provided, however, that this sentence will not apply to any causes of action arising under the Securities Act of 1933, as amended, or the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction. In addition, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, the Exchange Act, or the respective rules and regulations promulgated thereunder (the “Federal Forum Provision”). These forum provisions may impose additional costs on stockholders, may limit our stockholders’ ability to bring a claim in a forum they find favorable, and the designated courts may reach different judgements or results than other courts. In addition, there is uncertainty as to whether our Federal Forum Provision will be enforced, which may impose additional costs on us and our stockholders.

Advance Notice Requirements

Our bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our bylaws specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting.

Anti-Takeover Effects Under Section 203 of DGCL

Section 203 of the DGCL prohibits a Delaware corporation from engaging in any “business combination” with any “interested stockholder” for a period of three years after the date that such stockholder became an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:

●before the stockholder became interested, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

●upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares owned by persons who are directors and also officers, and employee stock plans, in some instances, but not the outstanding voting stock owned by the interested stockholder; or


●at or after the time the stockholder became interested, the business combination was approved by our board of directors and authorized at an annual or special meeting of the stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.

Section 203 defines a business combination to include:

●any merger or consolidation involving the corporation and the interested stockholder;

●any sale, transfer, lease, pledge, exchange, mortgage, or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;

●subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the interested stockholder;

●subject to exceptions, any transaction involving the corporation that has the effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or

●the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges, or other financial benefits provided by or through the corporation.

In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.

Transfer Agent and Registrar

The transfer agent and registrar for our Common Stock is Vstock Transfer LLP. The transfer agent and registrar’s address is 18 Lafayette Place, Woodmere, New York 11598, and its telephone number is (212) 828-8436.


DESCRIPTION OF DEBT SECURITIES

This section describes the general terms and provisions of our debt securities that we may issue from time to time. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. In this prospectus, we have summarized certain general features of the warrants. We urge you, however, to read the applicable prospectus supplement (and any free writing prospectus that we may authorize to be provided to you) related to the particular series of warrants being offered, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants. Forms of the warrant agreements and forms of warrant certificates containing the terms of the warrants being offered have been filed as exhibits to the registration statement of which this prospectus is a part, and supplemental warrant agreements and forms of warrant certificates will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.


We will evidence each series of warrants by warrant certificates that we will issue. Warrants may be issued under an applicable warrant agreement that we enter into with a warrant agent. We will indicate the name and address of the warrant agent, if applicable, in the prospectus supplement relating to the particular series of warrants being offered.

Debt Securities. We may issue debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any other unsecured and unsubordinated debt. The subordinated debt securities will be subordinate and junior in right of payment, toWhile the extent and in the manner described in the instrument governing the debt, to all of our senior indebtedness. Convertible debt securities will be convertible into or exchangeable for our common stock or other securities. Conversion may be mandatory or at your option and would be at prescribed conversion rates.

The debt securities will be issued under one or more documents called indentures, which are contracts between us and a national banking association or other eligible party, as trustee. In this prospectus,terms we have summarized certain general features of thebelow will apply generally to any future debt securities. We urge you, however, to readsecurities we may offer under this prospectus, the applicable prospectus supplement (and anyor free writing prospectus will describe the specific terms of any debt securities offered through that prospectus supplement or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement or free writing prospectus may authorize to be provided to you) relateddiffer from the terms we describe below. Unless the context requires otherwise, whenever we refer to the “indentures,” we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.

We will issue any senior debt securities being offered, as well asunder the complete indenturessenior indenture that containwe will enter into with the termstrustee named in the senior indenture. We will issue any subordinated debt securities under the subordinated indenture that we will enter into with the trustee named in the subordinated indenture. We have filed forms of the debt securities. Forms of indentures have been filedthese documents as exhibits to the registration statement, of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.

 

RATIO OF EARNINGS TO FIXED CHARGES

The following table sets forth our ratio of earnings to fixed charges for the periods indicated (in millions):

  Six months ended June 30, Fiscal Year Ended December 31, 
  2017  2016 2016 2015 
Ratio of earnings to fixed charges $N/A  $N/A $N/A $N/A 

For the purpose of this table, “earnings” consists of pre-tax income (loss) from continuing operations, plus fixed charges and amortizations of capitalized interest, less interest capitalized.


“Fixed charges” consist of interest expensed and capitalized related to indebtedness. For the fiscal years ended December 31, 2016, and 2015 for the six months ended June 30, 2017 and 2016, we had no earnings, and consequently earnings for these periods were insufficient to cover fixed charges. Currently we have no shares of preferred stock outstanding and we have not paid any dividends on preferred stock in the periods presented. Therefore, the ratios of earnings to combined fixed charges and preferred stock dividends are not different from the ratios of earnings to fixed charges.

FORWARD-LOOKING STATEMENTS

This prospectus and the documents included or incorporated by reference in this prospectus contains forward-looking statements.  Forward-looking statements give our current expectations or forecasts of future events.  You can identify these statements by the fact that they do not relate strictly to historical or current facts.  You can find many (but not all) of these statements by looking for words such as “approximates,” “believes,” “hopes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,” “should,” “could,” “may” or other similar expressions in this prospectus.  In particular, these include statements relating to future actions, prospective products, applications, customers, technologies, future performance or results of anticipated products, expenses, and financial results.  These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from our historical experience and our present expectations or projections.  Factors that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:

●our liquidity and our ability to raise capital to finance our operations,

●our limited cash and a history of losses,

●our future financial and operating results and our ability to achieve profitability,

●our limited experience in marketing our product at a sustainable commercial level and need to expand our domestic and international marketing programs,

●emerging competition and rapidly advancing technology or alternative therapies and treatments for persons suffering from blindness,

●customer demand for the products we develop, effective pricing and obtaining reimbursement under government and private insurance programs,

●our need to conduct and pay for additional clinical trials to determine efficacy of the Argus II System in treating patients with AMD and for new products that we are planning on developing especially the Orion I product,

●obtaining a U.S. outpatient payment rate that adequately covers the costs incurred by hospitals for the Argus II device and implant procedure,

●our ability to obtain adequate government and private party insurance reimbursements for our products domestically and in foreign markets,

●the impact of competitive or alternative products, technologies and pricing,

●general economic conditions and events and the impact they may have on us and our potential customers,

●the adequacy of protections afforded to us by the patents that we own and license and the cost to us of maintaining, enforcing and defending those patents and licenses,

●our ability to obtain, expand and maintain patent protection in the future, and to protect our non-patented intellectual property,

●our exposure to and ability to defend third-party claims and challenges to our patents, licenses and other intellectual property rights,

●our ability to obtain adequate financing in the future,

●our ability to continue as a going concern,

��●our ability to develop, successfully test and obtain FDA and other regulatory approvals for the Orion I,

●our intentions, expectations and beliefs regarding anticipated growth, market penetration and trends in our business,

●the timing and success of our plan of product commercialization,

●the effects of market conditions on our stock price and operating results,

●our ability to timely and effectively adapt our existing technology and have our technology solutions gain market acceptance,

●our plans to use the proceeds from this offering,

●our ability to comply with evolving legal standards and regulations, particularly concerning requirements for being a public company and United States export regulations,

●the attraction and retention of qualified employees and key personnel, and

●other factors discussed in the “Risk Factors” section of this prospectus.

Forward-looking statements are based upon management’s beliefs and assumptions and are made as of the date of this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements included in this prospectus or to update the reasons why actual results could differ from those contained in such statements, whether as a result of new information, future events or otherwise, except to the extent required by federal securities laws.  Actual future results may vary materially as a result of various factors, including, without limitation, the risks outlined under the section entitled “Risk Factors” and matters described in this prospectus generally.  In light of these risks and uncertainties, we cannot assure you that the forward-looking statements contained in this prospectus will in fact occur.


You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in our forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events and circumstances described in the forward-looking statements will be achieved or occur. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements. We undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes in our expectations, except as required by law.

You should read this prospectus and the documents that we reference in this prospectus and have filed with the Securities and Exchange Commission as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect.

USE OF PROCEEDS

Except as described in any prospectus supplement or in any related free writing prospectus that we may authorize to be provided to you, we currently intend to use the net proceeds from the sale of securities under this prospectus for general corporate purposes, including manufacturing expenses, clinical trial expenses, research and development expenses, sales and marketing expenses, general and administrative expenses, and other expenses associated with the commercialization of Argus II , any other product candidate we develop and our cortical visual prosthesis device, Orion. We may also use a portion of the net proceeds to license, invest in or acquire businesses or technologies that we believe are complementary to our own, although we have no current plans, commitments or agreements with respect to any acquisitions. As of the date of this prospectus, we cannot specify with certainty all of the particular uses of the proceeds from the sale of securities under this prospectus. Accordingly, we will retain broad discretion over the use of such proceeds. Pending the use of the net proceeds from the sale of securities under this prospectus as described above, we intend to invest the net proceeds in investment-grade, interest-bearing instruments. 

DESCRIPTION OF CAPITAL STOCK

General

Our authorized capital stock consists of 200,000,000 shares of common stock, without par value, and 10,000,000 shares of preferred stock, without par value. As of September 30, 2017, we had a total of 56,806,352 shares of common stock outstanding and no shares of preferred stock outstanding.


The following summary description of our capital stock is based on the provisions of our articles of incorporation and bylaws and the applicable provisions of the California Corporations Code. This information is qualified entirely by reference to the applicable provisions of our articles of incorporation, bylaws and the California Corporations Code. For information on how to obtain copies of our articles of incorporation and bylaws, which are exhibits to the registration statement of which this prospectus is a part, see “Where You Can Find More Information” and “Incorporation by Reference.”

Common Stock

The holders of common stock are entitled to one vote per share on all matters submitted to a vote of our shareholders and cumulative voting rights in the election of our directors. Under California law, in any election of directors, each shareholder is entitled to cumulative voting at such election. This means that each shareholder may cast, in person or by proxy, as many votes in the aggregate as that shareholder is entitled to vote, multiplied by the number of directors to be elected. A shareholder is entitled and can elect to cast all of his or her votes for any director or for any two or more as the shareholder would choose. Our by-laws provide that the holders of a majority of the outstanding shares of our common stock, if present in person or by proxy, represent a quorum for the transaction of business at shareholders’ meetings. In most instances, if holders of a majority of the common stock present in person or by proxy at any meeting vote “for” a matter, the matter passes. Subject to preferences that may apply to shares of preferred stock outstanding at the time, the holders of outstanding shares of our common stock are entitled to receive ratably any dividends declared by our board of directors out of assets legally available. Upon our liquidation, dissolution or winding up, holders of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the outstanding liquidation preferences of any then outstanding shares of preferred stock. Holders of common stock have no preemptive or conversion rights or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock. All outstanding shares of common stock are fully paid and nonassessable, and the shares of common stock offered, when issued, will be fully paid and nonassessable.

Our common stock is listed on The Nasdaq Capital Market under the symbol “EYES”. We have not applied to list our common stock on any other exchange or quotation system.

Preferred Stock

We have 10,000,000 shares of authorized preferred stock, no par value, none of which was issued or outstanding on September 30, 2017. Shares of preferred stock may be issued from time to time in one or more series, each of which will have such distinctive designation or title as shall be determined by our board of directors prior to the issuance of any shares thereof. Preferred stock will have such voting powers, full or limited, or no voting powers, and such preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as shall be stated in such resolution or resolutions providing for the issue of such class or series of preferred stock as may be adopted from time to time by the board of directors prior to the issuance of any shares thereof. The number of authorized shares of preferred stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all the then outstanding shares of our capital stock entitled to vote generally in the election of the directors, voting together as a single class, without a separate vote of the holders of the preferred stock, or any series thereof, unless a vote of any such holders is required pursuant to any preferred stock designation.


While we do not currently have any plans for the issuance of any preferred stock, the issuance of such preferred stock could adversely affect the rights of the holders of common stock and, therefore, reduce the value of the common stock. It is not possible to state the actual effect of the issuance of any shares of preferred stock on the rights of holders of the common stock until the Board of Directors determines the specific rights of the holders of the preferred stock; however, these effects may include:

●Restricting dividends on the common stock;

●Diluting the voting power of the common stock;

●Impairing the liquidation rights of the common stock; or

●Delaying or preventing a change in control of the Company without further action by the shareholders.

Other than in connection with shares of preferred stock (as explained above), which preferred stock is not currently designated nor contemplated by us, we do not believe that any provision of our articles of incorporation or bylaws would delay, defer or prevent a change in control.

Stock Options, Warrants and Restricted Stock Units

As of September 30, 2017, we have reserved the following shares of common stock in the aggregate for issuance pursuant to stock option and warrant agreements and restricted stock unit awards (“RSUs”):

●5,530,464 shares of common stock issuable upon the exercise of stock options outstanding at September 30, 2017 with a weighted average exercise price of $4.98 per share;

●2,650,253 shares of common stock reserved for future issuance to our employees under the Company’s 2011 Equity Incentive Plan;

●95,000 shares of common stock issuable upon the settlement of restricted stock units outstanding at September 30, 2017;

●15,130,835 shares of common stock issuable upon the exercise of warrants outstanding at September 30, 2017 (includes 13,652,341 million warrants exercisable at $1.47 per share that we issued and sold to our shareholders in a registered rights offering completed in March 2017) with a weighted average exercise price of $2.15 per share;

●514,861 shares of common stock reserved for future issuance to our employees under the Company’s Employee Stock Purchase Plan, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan.


Transfer Agent

The transfer agent and registrar for our common stock is VStock Transfer LLC, 18 Lafayette Place, Woodmere, New York 11598.

Dividend Policy

We have never paid any cash dividends on our capital stock and do not anticipate paying any cash dividends on our common stock in the foreseeable future. We intend to retain future earnings to fund ongoing operations and future capital requirements. Any future determination to pay cash dividends will be at the discretion of our board of directors and will be dependent upon financial condition, results of operations, capital requirements and such other factors as the board of directors deems relevant.

DESCRIPTION OF WARRANTS

We may issue warrants from time to time under this prospectus for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. The terms of any warrants offered under a prospectus supplement may differ from the terms described below.

Warrants issued under this prospectus may be issued under warrant agreements which we will enter into with a warrant agent to be selected by us. We use the term “warrant agreement” to refer to any of these warrant agreements. We use the term “warrant agent” to refer to the warrant agent under any of these warrant agreements. Any warrant agent will act solely as an agent of ours in connection with the warrants and will not act as an agent for the holders or beneficial owners of the warrants.

We will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of warrant agreement, including a form of warrant certificate, that describes the terms of the particular series of warrants we are offering before the issuance of the related series of warrants. The following summaries of material provisions of the warrants and the warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions of the warrant agreement and warrant certificate applicable to the particular series of warrants that we may offer under this prospectus. We urge you to read the applicable prospectus supplements and any free writing prospectus related to the particular series of warrants that we offer under this prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.


General

We will describe in the applicable prospectus supplement the terms of the series of warrants being offered, including, to the extent applicable:

●the offering price and aggregate number of warrants offered;

●the currency for which the warrants may be purchased;

●the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;

●the date on and after which the warrants and the related securities will be separately transferable;

●in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;

●in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;

●the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreements and the warrants;

●the terms of any rights to redeem or call the warrants;

●any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;

●the dates on which the right to exercise the warrants will commence and expire;

●the manner in which the warrant agreements and warrants may be modified;

●a discussion of material United States federal income tax consequences of holding or exercising the warrants;

●the terms of the securities issuable upon exercise of the warrants; and

●any other specific terms, preferences, rights or limitations of or restrictions on the warrants.


Before exercising their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:

●in the case of warrants to purchase debt securities, the right to receive payments of principal of, or premium, if any, or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or

●in the case of warrants to purchase common stock or preferred stock, the right to receive dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.

Exercise of Warrants

Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.

Holders of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the required amount to the warrant agent, if applicable, in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent.

Upon receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or part of the exercise price for warrants.

Governing Law

Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in accordance with the laws of the State of California.

Enforceability of Rights by Holders of Warrants

Any warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable upon exercise of, its warrants.


DESCRIPTION OF DEBT SECURITIES

We may issue debt securities from time to time under this prospectus, in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. While the terms we have summarized below will apply generally to any debt securities that we may offer under this prospectus, we will describe the particular terms of any debt securities that we may offer in more detail in the applicable prospectus supplement. The terms of any debt securities offered under a prospectus supplement may differ from the terms described below. Unless the context requires otherwise, whenever we refer to the indenture, we also are referring to any supplemental indentures that specify the terms of a particular series of debt securities.

We may issue debt securities either separately, or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus, the debt securities will be our direct, unsecured obligations and may be issued in one or more series.

We will issue the debt securities under an indenture that we will enter into with the trustee named in the indenture. We have summarized select portions of the indenture below. The summary is not complete. The indenture will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). We use the term “trustee” to refer to either the trustee under the senior indenture or the Trust Indenture Act. We have filedtrustee under the form ofsubordinated indenture, as an exhibit to the registration statement of which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.applicable.

 

The following summarysummaries of material provisions of the senior debt securities, the subordinated debt securities and the indenture isindentures are subject to, and qualified in itstheir entirety by reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplementssupplement or free writing prospectus and any related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete applicable indenture that contains the terms of the debt securities. Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.

 

General

The indenture does not limit the amount of debt securities that we may issue. It provides that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit that we may designate. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indenture, the terms of the indenture do not contain any covenants or other provisions designed to give holders of any debt securities protection against changes in our operations, financial condition or transactions involving us.


We may issue the debt securities issued under the indenture as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may be issued with “original issue discount,” or OID, for U.S. federal income tax purposes because of interest payment and other characteristics or terms of the debt securities. Material U.S. federal income tax considerations applicable to debt securities issued with OID will be described in more detail in any applicable prospectus supplement.

 

We will describe in the applicable prospectus supplement or free writing prospectus the terms of the series of debt securities being offered, including:

 ●the title of the series of debt securities;title;

●the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
 ●any limit uponon the aggregate principal amount that may be issued;

●the maturity date or dates;

●the form of the debt securities of the series;

●the applicability of any guarantees;

 ●whether or not we will issue the series of debt securities will be secured or unsecured,in global form, and, if so, the terms of any secured debt;and who the depository will be;

●the maturity date;
 ●whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes, and whether we can redeem the debt securities rank as senior debt, senior subordinated debt, subordinated debt or any combination thereof, and the terms of any subordination;if we have to pay such additional amounts;

●if the price (expressed as a percentage of the aggregate principal amount thereof) at which such debt securities will be issued is a price other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof, or if applicable, the portion of the principal amount of such debt securities that is convertible into another security or the method by which any such portion shall be determined;

 ●the annual interest rate, or rates, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue, the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
●whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;

●the terms of the subordination of any series of subordinated debt;
●the place where payments will be payable;
●restrictions on transfer, sale or other assignment, if any;
 ●our right, if any, to defer payment of interest and the maximum length of any such deferral period;

 


 ●if applicable, the date, or datesif any, after which, or the period or periods duringconditions upon which, and the price or prices at which, we may, at our option, redeem the series of debt securities pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;


 ●the date, or dates, if any, on which, and the price or prices at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or otherwise, to redeem, or at the holder’s option, to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
●whether the indenture will restrict our ability to:

●incur additional indebtedness;
●issue additional securities;
●create liens;
●pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiaries;
●redeem capital stock;
●place restrictions on our subsidiaries’ ability to pay dividends, make distributions or transfer assets;
●make investments or other restricted payments;
●sell or otherwise dispose of assets;
●enter into sale-leaseback transactions;
●engage in transactions with stockholders or affiliates;
●issue or sell stock of our subsidiaries;
●effect a consolidation or merger;
●whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
●a discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
●information describing any book-entry features;
●provisions for a sinking fund purchase or other analogous fund, if any;
●the applicability of the provisions in the indenture on discharge;
●whether the debt securities are to be offered at a price such that they will be deemed to be offered at an “original issue discount” as defined in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
 ●the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple thereof;

●any and all terms, if applicable, relating to any auction or remarketing of the debt securities of that series and any security for our obligations with respect to such debt securities and any other terms which may be advisable in connection with the marketing of debt securities of that series;

●whether the debt securities of the series shall be issued in whole or in part in the form of a global security or securities; the terms and conditions, if any, upon which such global security or securities may be exchanged in whole or in part for other individual securities; and the depositary for such global security or securities;

●if applicable, the provisions relating to conversion or exchange of any debt securities of the series and the terms and conditions upon which such debt securities will be so convertible or exchangeable, including the conversion or exchange price, as applicable, or how it will be calculated and may be adjusted, any mandatory or optional (at our option or the holders’ option) conversion or exchange features, the applicable conversion or exchange period and the manner of settlement for any conversion or exchange;

●if other than the full principal amount thereof, the portion of the principal amount of debt securities of the series which shall be payable upon declaration of acceleration of the maturity thereof;

●additions to or changes in the covenants applicable to the particular debt securities being issued, including, among others, the consolidation, merger or sale covenant;

●additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium, if any, and interest, if any, with respect to such securities to be due and payable;

●additions to or changes in or deletions of the provisions relating to covenant defeasance and legal defeasance;

●additions to or changes in the provisions relating to satisfaction and discharge of the indenture;

●additions to or changes in the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture;


 ●the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars;

●whether interest will be payable in cash or additional debt securities at our or the holders’ option and the terms and conditions upon which the election may be made;

●the terms and conditions, if any, upon which we will pay amounts in addition to the stated interest, premium, if any and principal amounts of the debt securities of the series to any holder that is not a “United States person” for federal tax purposes;

●any restrictions on transfer, sale or assignment of the debt securities of the series; and

 ●any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any other additionsadditional events of default or changes incovenants provided with respect to the provisions of the indenture,debt securities, and any terms that may be required by us or advisable under applicable laws or regulations.regulations or advisable in connection with the marketing of the debt securities.

 

Conversion or Exchange Rights

 

We will set forth in the applicable prospectus supplement or free writing prospectus the terms on which a series of debt securities may be convertible into or exchangeable for our common stock, our preferred stock or our other securities.securities (including securities of a third-party). We will include provisions as to settlement upon conversion or exchange and whether conversion or exchange is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock, our preferred stock or our other securities (including securities of a third-party) that the holders of the series of debt securities receive would be subject to adjustment.

 

Consolidation, Merger or Sale

 

Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the indentureindentures will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of our assets as an entiretyall or substantially as an entirety.all of our assets. However, any successor to or acquirer of such assets (other than a subsidiary of ours) must assume all of our obligations under the indentureindentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for other securities of ours or securities of other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.

 


Events of Default underUnder the Indenture

 

Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the following are events of default under the indentureindentures with respect to any series of debt securities that we may issue:

 

 ●if we fail to pay any installment of interest on any series of debt securities, as and when the same shall become due and payable and such defaultour failure continues for a period of 90 days; provided, however, that a valid extension of an interestdays and the time for payment period by us in accordance with the terms of any indenture supplemental thereto shallhas not constitute a default in the payment of interest for this purpose;been extended;

 ●if we fail to pay the principal, of,premium or premium,sinking fund payment, if any, on any series of debt securities as and when the same shall become due and payable whether at maturity, upon redemption by declarationor repurchase or otherwise, or in anyand the time for payment required by any sinking or analogous fund established with respect to such series; provided, however, that a valid extension of the maturity of such debt securities in accordance with the terms of any indenture supplemental thereto shallhas not constitute a default in the payment of principal or premium, if any;been extended;


 ●if we fail to observe or perform any other covenant or agreement contained in the debt securities or the indenture,indentures, other than a covenant specifically relating to another series of debt securities, and our failure continues for 90 days after we receive written notice of such failure, requiring the same to be remedied and stating that such is a notice of default thereunder, from the trustee or holders of at least 25% in aggregate principal amount of the outstanding debt securities of the applicable series; and

 ●if specified events of bankruptcy, insolvency or reorganization occur.

We will describe in each applicable prospectus supplement or free writing prospectus any additional events of default relating to the relevant series of debt securities.

 

If an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare the unpaid principal, of, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the unpaid principal, amount ofpremium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or any holder.

 

The holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture. Any waiver shall cure the default or event of default.

 

Subject to the terms of the indenture,indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity.indemnity or security satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided that:

 

 ●the direction so given by the holder is not in conflict with any law or the applicable indenture; and

 ●subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.

 


A holder of the debt securities of any series will have the right to institute a proceeding under the indentureindentures or to appoint a receiver or trustee, or to seek other remedies only if:

 ●the holder has given written notice to the trustee of a continuing event of default with respect to that series;

 


 ●the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request,

● and such holders have offered reasonable indemnity to the trustee indemnityor security satisfactory to it against the costs, expenses and liabilitiesany loss, liability or expense or to be incurred by the trustee in compliance with instituting the request;proceeding as trustee; and

 ●the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.

 

These limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities.securities, or other defaults that may be specified in the applicable prospectus supplement or free writing prospectus.

 

We will periodically file statements with the trustee regarding our compliance with specified covenants in the indenture.indentures.

 

Modification of Indenture; Waiver

 

WeSubject to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without the consent of any holders with respect to the following specific matters:

 

 ●to curefix any ambiguity, defect or inconsistency in the indenture or in the debt securities of any series;indenture;

 ●to comply with the provisions described above underin the section titled “Description of Debt Securities—Consolidation, Merger or Sale;”

 ●to provide for uncertificated debt securities in addition to or in place of certificated debt securities;

●to add to our covenants, restrictions, conditions or provisions such new covenants, restrictions, conditions or provisions for the benefitcomply with any requirements of the holdersSEC in connection with the qualification of all or any series of debt securities, to makeindenture under the occurrence, or the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred upon us in the indenture;Trust Indenture Act;

 ●to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication and delivery of debt securities, as set forth in the indenture;

●to make any change that does not adversely affect the interests of any holder of debt securities of any series in any material respect;


 ●to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided above underin the section titled “Description of Debt Securities—General”General,” to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities, or to add to the rights of the holders of any series of debt securities;

 ●to evidence and provide for the acceptance of appointment under any indenturehereunder by a successor trustee; or

 ●to comply with any requirementsprovide for uncertificated debt securities and to make all appropriate changes for such purpose;
●to add to our covenants such new covenants, restrictions, conditions or provisions for the benefit of the SECholders, to make the occurrence, or the occurrence and the continuance, of a default in connection withany such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the qualificationindenture; or
●to change anything that does not materially adversely affect the interests of any indenture under the Trust Indenture Act.holder of debt securities of any series.

 

In addition, under the indenture,indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, unlesssubject to the terms of the indenture for any series of debt securities that we providemay issue or as otherwise provided in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, we and the trustee may make the following changes only with the consent of each holder of any outstanding debt securities affected:

 

 ●extending the fixedstated maturity of anythe series of debt securities of any series;securities;

 ●reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the redemption of any seriesor repurchase of any debt securities; or

 ●reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.

 


Discharge

 

Each indenture will provideprovides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations to:

 

 ●provide for payment;

●register the transfer or exchange of debt securities of the series;

 ●replace stolen, lost or mutilated debt securities of the series;

●pay principal of and premium and interest on any debt securities of the series;

 ●maintain paying agencies;

 ●hold monies for payment in trust;


 ●recover excess money held by the trustee;

 ●compensate and indemnify the trustee; and

 ●appoint any successor trustee.

 

In order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium if any, and interest on, the debt securities of the series on the dates payments are due.

 

Form, Exchange and Transfer

 

We will issue the debt securities of each series only in fully registered form without coupons and, unless we provide otherwise specify in the applicable prospectus supplement or free writing prospectus, in denominations of $1,000 and any integral multiple thereof. The indenture providesindentures provide that we may issue debt securities of a series in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or DTC, or another depositarydepository named by us and identified in the applicablea prospectus supplement or free writing prospectus with respect to that series. To the extent the debt securities of a series are issued in global form and as book-entry, a description of terms relating to any book-entry securities will be set forth in the applicable prospectus supplement.

At the option of the holder, subject to the terms of the indentureindentures and the limitations applicable to global securities described in the applicable prospectus supplement or free writing prospectus, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and aggregate principal amount.

 

Subject to the terms of the indentureindentures and the limitations applicable to global securities set forth in the applicable prospectus supplement or free writing prospectus, holders of the debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer or exchange, we will imposemake no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.

 

We will name in the applicable prospectus supplement or free writing prospectus the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series.

If we elect to redeem the debt securities of any series, we will not be required to:

 

 ●issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or


 ●register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any debt securities we are redeeming in part.

 


Information Concerning the Trustee

 

The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.

Subject to this provision, the trustee is under no obligation to exercise any of the powers given it by the indentureindentures at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.

 

Payment and Paying Agents

 

Unless we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will make payment of the interest on any debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date for the interest.

 

We will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable prospectus supplement or free writing prospectus any other paying agents that we initially designate for the debt securities of a particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.

 

All money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.

 

Governing Law

 

The indentureindentures and the debt securities will be governed by and construed in accordance with the internal laws of the State of New York, except to the extent that the Trust Indenture Act of 1939 is applicable.

 


SubordinationRanking of Subordinated Debt Securities

 

The subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent described in a prospectus supplement.supplement or free writing prospectus. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue, norissue. It also does itnot limit us from issuing any other secured or unsecured debt.

 

The senior debt securities will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit the amount of senior debt securities that we may issue. It also does not limit us from issuing any other secured or unsecured debt.


DESCRIPTION OF UNITSWARRANTS

The following description, together with the additional information we may include in any applicable prospectus supplements, summarizes the material terms and provisions of the warrants that we may offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants offered under that prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional important terms and provisions and will be incorporated by reference as an exhibit to the registration statement, which includes this prospectus.

General

 

We may issue units consistingwarrants for the purchase of any combination of the other types ofcommon stock, preferred stock and/or debt securities offered under this prospectus in one or more series. We may issue warrants independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities.

We will evidence each series of unitswarrants by unitwarrant certificates that we will issue under a separate warrant agreement. We maywill enter into unit agreementsthe warrant agreement with a unitwarrant agent. Each unit agent will be a bank or trust company that we select. We will indicate the name and address of the unitwarrant agent in the applicable prospectus supplement relating to a particular series of units.warrants.

 

The following description, together withWe will describe in the additional information included in any applicable prospectus supplement summarizes the general featuresterms of the series of warrants, including:

●the offering price and aggregate number of warrants offered;
●the currency for which the warrants may be purchased;
●if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
●if applicable, the date on and after which the warrants and the related securities will be separately transferable;
●in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
●in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
●the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
●the terms of any rights to redeem or call the warrants;
●any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
●the periods during which, and places at which, the warrants are exercisable;
●the manner of exercise;
●the dates on which the right to exercise the warrants will commence and expire;
●the manner in which the warrant agreement and warrants may be modified;
●federal income tax consequences of holding or exercising the warrants;
●the terms of the securities issuable upon exercise of the warrants; and
●any other specific terms, preferences, rights or limitations of or restrictions on the warrants.

DESCRIPTION OF UNITS

We may issue units comprised of shares of common stock, shares of preferred stock, debt securities and warrants in any combination. We may issue units in such amounts and in as many distinct series as we wish. This section outlines certain provisions of the units that we may offerissue. If we issue units, they will be issued under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. The information described in this prospectus. You shouldsection may not be complete in all respects and is qualified entirely by reference to the unit agreement with respect to the units of any particular series. The specific terms of any series of units offered will be described in the applicable prospectus supplement. If so described in a particular supplement, the specific terms of any series of units may differ from the general description of terms presented below. We urge you to read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related to theany series of units being offered,we may offer, as well as the complete unit agreementsagreement and unit certificate that contain the terms of the units. SpecificIf we issue units, forms of unit agreements and unit certificates relating to such units will contain additional important terms and provisions and we will filebe incorporated by reference as an exhibitexhibits to the registration statement, of which this prospectus is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to units offered underincludes this prospectus.

 

IfEach unit that we offermay issue will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe:

●the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
●any provisions of the governing unit agreement;
●the price or prices at which such units will be issued;
●the applicable United States federal income tax considerations relating to the units;
●any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
●any other terms of the units and of the securities comprising the units.

The provisions described in this section, as well as those described in the section titled “Description of Capital Stock,” “Description of Debt Securities” and “Description of Warrants” will apply to the securities included in each unit, to the extent relevant and as may be updated in any prospectus supplements.

Issuance in Series

We may issue units certainin such amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally to all series. Most of the financial and other specific terms of a particular series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:supplement.

 

●the title of the series of units;

Unit Agreements

 

●identification and description of the separate constituent securities comprising the units;

We will issue the units under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. We may add, replace or terminate unit agents from time to time. We will identify the unit agreement under which each series of units will be issued and the unit agent under that agreement in the applicable prospectus supplement.

 

●the price or prices at which the units will be issued;

The following provisions will generally apply to all unit agreements unless otherwise stated in the applicable prospectus supplement:

●the date, if any, on and after which the constituent securities comprising the units will be separately transferable;

●a discussion of certain United States federal income tax considerations applicable to the units; and

●any other terms of the units and their constituent securities.

 

LEGAL OWNERSHIP OF SECURITIESModification without Consent

 

We can issue securities in registered formand the applicable unit agent may amend any unit or inunit agreement without the formconsent of one or more global securities. We describe global securities in greater detail below. We refer to those persons who have securities registered in their own names on the books that we or any applicable trustee, depository or warrant agent maintain for this purpose as the “holders” of those securities. These persons are the legal holders of the securities. We refer to those persons who, indirectly through others, own beneficial interests in securities that are not registered in their own names, as “indirect holders” of those securities.holder:

●to cure any ambiguity; any provisions of the governing unit agreement that differ from those described below;

 


As we discuss below, indirect holders are not legal holders, and investors in securities issued in book-entry form or in street name will be indirect holders.

Book-Entry Holders

●to correct or supplement any defective or inconsistent provision; or
●to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any material respect.

 

We do not need any approval to make changes that affect only units to be issued after the changes take effect. We may issue securitiesalso make changes that do not adversely affect a particular unit in book-entry form only, as we will specify in the applicable prospectus supplement. This means securities may be represented by one or more global securities registered in the name of a financial institution that holds them as depositary on behalf ofany material respect, even if they adversely affect other financial institutions that participate in the depositary’s book-entry system. These participating institutions, which are referred to as participants, in turn hold beneficial interests in the securities on behalf of themselves or their customers.

Only the person in whose name a security is registered is recognized as the holder of that security. Securities issued in global form will be registered in the name of the depositary or its participants. Consequently, for securities issued in global form, we will recognize only the depositary as the holder of the securities, and we will make all payments on the securities to the depositary. The depositary passes along the payments it receives to its participants, which in turn pass the payments along to their customers who are the beneficial owners. The depositary and its participants do so under agreements they have made with one another or with their customers; they are not obligated to do so under the terms of the securities.

As a result, investorsunits in a book-entry security will not own securities directly. Instead, they will own beneficial interests in a global security, through a bank, broker or other financial institution that participates in the depositary’s book-entry system or holds an interest through a participant. As long as the securities are issued in global form, investors will be indirect holders, and not holders, of the securities.

Street Name Holders

We may terminate a global security or issue securities in non-global form.material respect. In thesethose cases, investors may choose to hold their securities in their own names or in “street name.” Securities held by an investor in street name would be registered in the name of a bank, broker or other financial institution that the investor chooses, and the investor would hold only a beneficial interest in those securities through an account he or she maintains at that institution.

For securities held in street name, we will recognize only the intermediary banks, brokers and other financial institutions in whose names the securities are registered as the holders of those securities, and we will make all payments on those securities to them. These institutions pass along the payments they receive to their customers who are the beneficial owners, but only because they agree to do so in their customer agreements or because they are legally required to do so. Investors who hold securities in street name will be indirect holders, not holders, of those securities.

Legal Holders

Our obligations, as well as the obligations of any applicable trustee and of any third parties employed by us or a trustee, run only to the legal holders of the securities. We do not have obligations to investors who hold beneficial interests in global securities, in street name or by any other indirect means. This will be the case whether an investor chooses to be an indirect holder of a security or has no choice because we are issuing the securities only in global form.


For example, once we make a payment or give a notice to the holder, we have no further responsibility for the payment or notice even if that holder is required, under agreements with depositary participants or customers or by law, to pass it along to the indirect holders but does not do so. Similarly, we may wantneed to obtain the approval of the holders to amend an indenture, to relieve usholder of the consequences of a default or of our obligation to comply with a particular provision of the indenture or for other purposes. In such an event,unaffected unit; we would seek approvalneed only obtain any required approvals from the holders and not the indirect holders, of the securities. Whether and how the holders contact the indirect holders is up to the holders.affected units.

 

Special Considerations for Indirect HoldersModification with Consent

 

If you hold securities throughWe may not amend any particular unit or a bank, broker or other financial institution, either in book-entry form or in street name, you should checkunit agreement with your own institutionrespect to find out:any particular unit unless we obtain the consent of the holder of that unit, if the amendment would:

 

 ●how it handles securities payments and notices;impair any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require the consent of the holder to any changes that would impair the exercise or enforcement of that right; or
●reduce the percentage of outstanding units or any series or class the consent of whose holders is required to amend that series or class, or the applicable unit agreement with respect to that series or class, as described below.

Any other change to a particular unit agreement and the units issued under that agreement would require the following approval:

 

 ●whether it imposes feesIf the change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a majority of the outstanding units of that series; or charges;

 ●howIf the change affects the units of more than one series issued under that agreement, it would handlemust be approved by the holders of a requestmajority of all outstanding units of all series affected by the change, with the units of all the affected series voting together as one class for the holders’ consent, if ever required;

●whether and how you can instruct it to send you securities registered in your own name so you can be a holder, if that is permitted in the future;

●how it would exercise rights under the securities if there were a default or other event triggering the need for holders to act to protect their interests; and

●if the securities are in book-entry form, how the depositary’s rules and procedures will affect these matters.this purpose.

 

These provisions regarding changes with majority approval also apply to changes affecting any securities issued under a unit agreement, as the governing document.

In each case, the required approval must be given by written consent.

Global SecuritiesUnit Agreements Will Not Be Qualified under Trust Indenture Act

 

A global security isNo unit agreement will be qualified as an indenture, and no unit agent will be required to qualify as a security that represents onetrustee, under the Trust Indenture Act. Therefore, holders of units issued under unit agreements will not have the protections of the Trust Indenture Act with respect to their units.

Mergers and Similar Transactions Permitted; No Restrictive Covenants or Events of Default

The unit agreements will not restrict our ability to merge or consolidate with, or sell our assets to, another corporation or other entity or to engage in any other numbertransactions. If at any time we merge or consolidate with, or sell our assets substantially as an entirety to, another corporation or other entity, the successor entity will succeed to and assume our obligations under the unit agreements. We will then be relieved of individual securities held by a depositary. Generally, all securities represented by the same global securities will have the same terms.any further obligation under these agreements.

 

Each security issuedThe unit agreements will not include any restrictions on our ability to put liens on our assets, nor will they restrict our ability to sell our assets. The unit agreements also will not provide for any events of default or remedies upon the occurrence of any events of default.


Governing Law

The unit agreements and the units will be governed by New York law.

Form, Exchange and Transfer

We will issue each unit in global-i.e., book-entry-form only. Units in book-entry form will be represented by a global security that we deposit with and registerregistered in the name of a financial institution ordepositary, which will be the holder of all the units represented by the global security. Those who own beneficial interests in a unit will do so through participants in the depositary’s system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its nominee that we select. The financial institution that we select for this purpose is calledparticipants. We will describe book-entry securities, and other terms regarding the depositary. Unless we specify otherwiseissuance and registration of the units in the applicable prospectus supplement, DTC will be the depositary forsupplement.

Each unit and all securities issued in book-entry form.

A global security may not be transferred to or registered incomprising the name of anyone other than the depositary, its nominee or a successor depositary, unless special termination situations arise. We describe those situations below under “Special Situations When a Global Security Will Be Terminated.” As a result of these arrangements, the depositary, or its nominee, will be the sole registered owner and holder of all securities represented by a global security, and investors will be permitted to own only beneficial interests in a global security. Beneficial interests must be held by means of an account with a broker, bank or other financial institution that in turn has an account with the depositary or with another institution that does. Thus, an investor whose security is represented by a global security will not be a holder of the security, but only an indirect holder of a beneficial interest in the global security.


If the prospectus supplement for a particular security indicates that the securityunit will be issued in global form only, then the security will be represented by a global security at all times unless and until the global security is terminated. If termination occurs, we may issue the securities through another book-entry clearing system or decide that the securities may no longer be held through any book-entry clearing system.

Special Considerations for Global Securities

As an indirect holder, an investor’s rights relating to a global security will be governed by the account rules of the investor’s financial institution and of the depositary, as well as general laws relating to securities transfers. We do not recognize an indirect holder as a holder of securities and instead deal only with the depositary that holds the global security.same form.

 

If securities arewe issue any units in registered, non-global form, the following will apply to them.

The units will be issued only in the formdenominations stated in the applicable prospectus supplement. Holders may exchange their units for units of a global security, an investor should be awaresmaller denominations or combined into fewer units of larger denominations, as long as the following:total amount is not changed.

 

 ●An investor cannot causeHolders may exchange or transfer their units at the securitiesoffice of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated units at that office. We may appoint another entity to be registered in hisperform these functions or her name and cannot obtain non-global certificates for his or her interest in the securities, except in the special situations we describe below.perform them ourselves.

 ●An investorHolders will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indirect holder and must look to his or her own bank or broker for payments on the securities and protection of his or her legal rights relating to the securities, as we describe above.indemnity before replacing any units.

 ●An investorIf we have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those units or other securities, we may not be ableblock the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that mailing, in order to sell interestsfreeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to permit transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this manner if the unit includes securities to some insurance companies and to other institutions that are required by law to own their securities in non-book-entry form.

●An investor may not be able to pledge his or her interest in a global security in circumstances where certificates representing the securities must be delivered to the lender or other beneficiary of the pledge in order for the pledge to be effective.

●The depositary’s policies, which may change from time to time, will govern payments, transfers, exchanges and other matters relating to an investor’s interest in a global security. We and any applicable trustee have no responsibility for any aspect of the depositary’s actions or for its records of ownership interests in a global security. We and the trustee also do not supervise the depositary in any way.

●The depositary may, and we understand that DTC will, require that those who purchase and sell interests in a global security within its book-entry system use immediately available funds, and your broker or bank may require you to do so as well.


●Financial institutions that participate in the depositary’s book-entry system, and through which an investor holds its interest in a global security, may also have their own policies affecting payments, notices and other matters relating to the securities. There may be more than one financial intermediary in the chain of ownershipselected for an investor. We do not monitor and are not responsible for the actions of any of those intermediaries.early settlement.

 

Special Situations WhenOnly the depositary will be entitled to transfer or exchange a Global Security Willunit in global form, since it will be Terminatedthe sole holder of the unit.

Payments and Notices

 

In a few special situationsmaking payments and giving notices with respect to our units, we will follow the procedures as described below,in the global security will terminate, and interests in it will be exchanged for physical certificates representing those interests. After that exchange, the choice of whether to hold securities directly or in street name will be up to the investor. Investors must consult their own banks or brokers to find out how to have their interests in securities transferred to their own name, so that they will be direct holders. We have described the rights of holders and street name investors above.

The global security will terminate when the following special situations occur:

●if the depositary notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security and we do not appoint another institution to act as depositary within 90 days;

●if we notify any applicable trustee that we wish to terminate that global security; or

●if an event of default has occurred with regard to securities represented by that global security and has not been cured or waived.

The applicable prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or any applicable trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.


PLAN OF DISTRIBUTION

 

We may sell the offered securities from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods orin and outside the United States (1) through underwriters or dealers, through agents and/or(2) directly to one or more purchasers. Thepurchasers, including to a limited number of institutional purchasers, to a single purchaser or to our affiliates and stockholders, (3) through agents or (4) through a combination of any of these methods.

If underwriters or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be distributedresold from time to time in one or more transactions:transactions, including:

 

●in one or more transactions at a fixed price or prices, which may be changed;changed from time to time;

●atin “at-the-market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market prices prevailing at the time of sale;maker or into an existing trading market, on an exchange or otherwise;

●through a market maker or into an existing trading market on an exchange or otherwise;
●at prices related to suchthose prevailing market prices; or
●at negotiated prices.

 


●     at negotiated prices. Each time we offer and sell securities covered by this prospectus, we will provide aThe applicable prospectus supplement or supplements that will describe the method of distribution and set forth the terms offollowing information to the offering, including:extent applicable:

●the terms of the offering;
●the names of any underwriters, dealers or agents;
 ●the name or names of any underwriters, dealersmanaging underwriter or agents;underwriters;

●the amounts of securities underwritten or purchased by each of them;

 ●the purchase price of securities and the securities;
●the net proceeds we will receive from the sale;sale of the securities;

 ●any over-allotment options under which underwriters may purchase additional securities from us;delayed delivery arrangements;

 ●any underwriting discounts, or commissions or agency fees and other items constituting underwriters’ or agents’ compensation;

 ●theany initial public offering price of the securities;price;

 ●any discounts commissions or concessions allowed or re-allowedreallowed or paid to dealers; and

 ●any securities exchange or market on which the securities may be listed.commissions paid to agents.

 

OffersSale through Underwriters or Dealers

If any securities are offered through underwriters, the underwriters will acquire the securities for their own account and may resell them from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Underwriters may offer and sell securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless otherwise provided in the applicable prospectus supplement, the obligations of the underwriters to purchase the securities being offered by this prospectus maywill be solicited directly. Agents may alsosubject to certain conditions, and the underwriters will be designated to solicit offersobligated to purchase the securities from time to time. Any agent involved in the offer or sale of our securities will be identified in a prospectus supplement.

If a dealer is utilized in the saleall of the offered securities being offered by this prospectus, the securities will be sold to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to be determined by the dealer at the timeif they purchase any of resale.

If an underwriter is utilized in the sale of the securities being offered by this prospectus, an underwriting agreement will be executed with the underwriter at the time of sale and the name of any underwriter will be provided in the prospectus supplement that the underwriter will use to make resales of the securities to the public.them. In connection with the sale of the securities, we or the purchasers of securities for whom the underwriterunderwriters may act as agent, may compensate the underwriterbe deemed to have received compensation from us in the form of underwriting discounts or commissions. The underwriter may sell the securities to or through dealers,commissions and those dealers may receive compensation from the underwriters in the form of discounts concessions or commissionsconcessions. The underwriters may change from the underwriters and/or commissions from the purchasers for which they may act as agent. Unless otherwise indicated in a prospectus supplement, an agent will be acting on a best efforts basis and a dealer will purchase securities as a principal, and may then resell the securities at varying pricestime to be determined by the dealer.

Any compensation paid to underwriters, dealers or agents in connection with thetime any initial public offering of the securities,price and any discounts or concessions allowed or commissions allowed by underwritersreallowed or paid to participating dealers will be provided in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters within the meaning of the Securities Act of 1933, as amended, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities Act, or to contribute to payments they may be required to make in respect thereof and to reimburse those persons for certain expenses.dealers.

 


Any common stock will be listed on the Nasdaq Capital Market, but any other securities may or may not be listed on a national securities exchange. ToIn order to facilitate the offering of securities, certain persons participating in the offeringunderwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. ThisSpecifically, the underwriters may include over-allotments oroverallot in connection with the offering, creating a short sales ofposition in the securities which involve the sale by persons participating in the offering of more securities than were soldfor their account. In addition, to them. In these circumstances, these persons would cover such overallotments or short positions by making purchases in the open market or by exercising their over-allotment option, if any. In addition, these persons mayto stabilize or maintain the price of the securities by biddingshares, the underwriters may bid for, or purchasing securitiesand purchase, shares in the open market or by imposing penalty bids, wherebymarket. Finally, an underwriting syndicate may reclaim selling concessions allowed to dealers participatingan underwriter or a dealer for distributing the securities in the offering may be reclaimed if securities sold by them are repurchasedthe syndicate repurchases previously distributed shares in connection withtransactions to cover syndicate short positions, in stabilization transactions. The effecttransactions, or otherwise. Any of these transactionsactivities may be to stabilize or maintain the market price of the offered securities at a level above that which might otherwise prevailindependent market levels. The underwriters are not required to engage in the open market. These transactionsthese activities, and may be discontinueddiscontinue any of these activities at any time.

 

Some or all of the securities that we offer through this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell securities for public offering and sale may make a market in those securities, but they will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities offered pursuant to this prospectus.


If any securities are offered through dealers, we will sell the securities to them as principals. They may then resell those securities to the public at varying prices determined by the dealers at the time of resale.

Direct Sales and Sales through Agents

We may engage in atsell the market offerings into an existing trading market in accordance with Rule 415(a)(4) undersecurities directly to purchasers. If the securities are sold directly to institutional investors or others who may be deemed to be underwriters within the meaning of the Securities Act.Act with respect to any sale of those securities, we will describe the terms of any such sales in the applicable prospectus supplement. We may also sell the securities through agents designated from time to time. Sales may be made by means of ordinary brokers’ transactions on The Nasdaq Capital Market at market prices, in block transactions and such other transactions as agreed by us and any agent. In addition, we may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement, so indicates,we will name any agent involved in connection with those derivatives, the third parties may selloffer or sale of the offered securities, covered by this prospectus and we will describe any commissions payable to the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be namedagent. Unless otherwise provided in the applicable prospectus supplement, (orany agent will agree to use its reasonable best efforts to solicit purchases for the period of its appointment.

At-the-Market Offerings

To the extent that we make sales through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a post-effective amendment). In addition,sales agency financing agreement or other at-the-market offering arrangement between us, on one hand, and the underwriters or agents, on the other. If we engage in at-the-market sales pursuant to any such agreement, we will issue and sell our securities through one or more underwriters or agents, which may act on an agency basis or a principal basis. During the term of any such agreement, we may sell securities on a daily basis in exchange transactions or otherwise loanas we agree with the underwriters or pledgeagents. Any such agreement will provide that any securities sold will be sold at prices related to a financial institutionthe then prevailing market prices for our securities. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time. Pursuant to the terms of the agreement, we may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase blocks of our common stock or other third party thatsecurities. The terms of any such agreement will be set forth in turn may sellmore detail in the securities short using this prospectus and an applicable prospectus supplement. Such financial institution or other third party

Remarketing Arrangements

Offered securities may transfer its economic short position to investorsalso be offered and sold, if we so indicate in our securities orthe applicable prospectus supplement, in connection with a concurrent offering of other securities.

The specificremarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as our agents. Any remarketing firm will be identified and the terms of its agreements, if any, lock-up provisions in respect of any given offeringwith us and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters of the offered securities under the Securities Act.

 

In complianceDelayed Delivery Contracts

If we so indicate in the applicable prospectus supplement, we may authorize agents, underwriters or dealers to solicit offers by certain institutions to purchase securities from us pursuant to contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement will describe the conditions to those contracts and the commission payable for solicitation of those contracts.

General Information

We may have agreements with the guidelinesagents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments that the agents, dealers or underwriters may be required to make. Agents, dealers, underwriters and remarketing firms may be customers of, the Financial Industry Regulatory Authority, Inc., or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker dealer may not exceed 8% of the aggregate proceeds of the offering.


The underwriters, dealers and agents may engage in transactions with us, or perform services for us in the ordinary course of business for which they receive compensation.their businesses.

 


Each underwriter, dealer and agent participating in the distribution of any of the securities that are issuable in bearer form will agree that it will not offer, sell or deliver, directly or indirectly, securities in bearer form in the United States or to United States persons, other than qualifying financial institutions, during the restricted period, as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7).


LEGAL MATTERS

 

The validity of the securities being offered byCertain legal matters in connection with this prospectusoffering will be passed upon for us by Law Offices of Aaron A. Grunfeld & Associates, Los Angeles, California. Mr. Grunfeld beneficially owns 73,855 shares of common stock, warrants to purchase 34,007 shares of common stock, and options to purchase 70,000 shares of common stock.Goodwin Procter LLP, New York, New York. Additional legal matters may be passed on for us, or any underwriters, dealers or agents by counsel we will name in the applicable prospectus supplement.

 

EXPERTS

 

The audited consolidated financial statements of Vivani Medical, Inc. and its subsidiaries as of December 31, 20162023 and 20152022, and for each of the two years in the three-year period ended December 31, 20162023 incorporated in this registration statement by reference in this prospectus and elsewhere into the registration statementAnnual Report on Form 10-K for the year ended December 31, 2023, have been so incorporated by reference in reliance uponon the report of Gumbiner Savett Inc.,BPM LLP, an independent registered public accounting firm, upongiven on the authority of said firm as experts in accountingauditing and auditing in giving said report.accounting. 

27

$300,000,000

 

WHERE YOU CAN FIND MORE INFORMATIONCommon Stock

Preferred Stock

We are a reporting company and file annual, quarterly and current reports, proxy statements and other information with the SEC. We have filed with the SEC a registration statement on Form S-3 under theDebt Securities Act with respect to the securities we are offering under this prospectus. This prospectus, which constitutes a part of the registration statement, does not contain all of the information set forth in the registration statement or the exhibits which are part of the registration statement. For further information with respect to us and the securities we are offering under this prospectus, we refer you to the registration statement and the exhibits and schedules filed as a part of the registration statement. You may read and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for more information about the operation of the Public Reference Room. Our SEC filings are also available at the SEC’s website at www.sec.gov. We maintain a website at www.secondsight.com. Information contained in our website does not constitute a part of this prospectus.

Warrants

Units

 

INCORPORATION BY REFERENCEPROSPECTUS

, 2024

 

The SEC’s rules allow us to “incorporate by reference” information into this prospectus, which means that we can disclose important information to you by referring you to another document filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus, and subsequent information that we file with the SEC will automatically update and supersede that information. Any statement contained in a previously filed document incorporated by reference will be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or replaces that statement.

 


We incorporate by reference our documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, which we refer to as the “Exchange Act” in this prospectus, between the date of this prospectus and the termination of the offering of the securities described in this prospectus. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed” with the SEC, including our Compensation Committee report and performance graph or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.

 

This prospectus and any accompanying prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:

 

●our Annual Report on Form 10-K for the year ended December 31, 2016 as filed with the SEC on March 16, 2017,

●our Quarterly Report on Form 10-Q for the quarter ended March 31, 2017 as filed with the SEC on May 9, 2017, and Quarterly Report on Form 10-Q for the quarter ended June 30, 2017 as filed with the SEC on August 7, 2017,

●our Periodic Reports on Form 8-K as filed with the SEC on January 6, 2017, February 27, 2017, March 6, 2017, March 10, 2017, April 10, 2017, April 20, 2017, June 8, 2017, June 26, 2017, July 6, 2017, July 10, 2017, July 14, 2017, July 18, 2017, July 26, 2017, July 28, 2017, August 31, 2017 and on October 5, 2017,

●our Proxy Statement as filed with the SEC on May 1, 2017, and

●Registration Statement on Form 8-A 12B/A filed with the SEC on November 17, 2014 and Form 8-A 12B filed with the SEC on March 24, 2017.

All reports and other documents we subsequently file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including all the documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of the reports and documents.

We are not, however, incorporating, any documents or information that we are deemed to furnish and not file in accordance with SEC rules.


You may request a copy of any or all of the documents incorporated by reference but not delivered with this prospectus, at no cost, by writing or telephoning us at the following address and number: Investor Relations, Second Sight Medical Products, Inc., 12744 San Fernando Road, Suite 400, Sylmar, California 91342, telephone (818) 833-5000. We will not, however, send exhibits to those documents, unless the exhibits are specifically incorporated by reference in those documents. We also maintain a website at www.secondsight.com. However, the information on our website is not part of this prospectus and should not be relied upon with respect to this offering.


 

The information in this preliminary prospectus is not complete and may be changed. These securities may not be sold until the registration statement filed with the Securities and Exchange Commission is effective. This preliminary prospectus is not an offer to sell nor does it seek an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

Subject to Completion, dated October 30, 2017.SUBJECT TO COMPLETION, DATED APRIL 22, 2024

 

PROSPECTUS

 

Up to $13,648,000 of Shares$75,000,000

(SECOND SIGHT LOGO)

 

Common Stock

 

 

 

We have entered into a sales agreementan Open Market Sale AgreementSM, or the Sales Agreement, with FBR Capital Markets & Co., and H.C. Wainwright & Co.,Jefferies LLC, or collectively,Jefferies, dated April 22, 2024, relating to the Agents, relating tosale of shares of our common stock, offered by this prospectus.par value $0.0001 per share, or common stock. In accordance with the terms of the sales agreement,Sales Agreement, pursuant to this prospectus, we may offer and sell shares of our common stock having an aggregate offering price of up to $13,648,000$75,000,000 from time to time through either of the AgentsJefferies, acting as our sales agent.

Our common stock is listed on The Nasdaq Capital Market under the symbol “VANI.” On April 19, 2024, the last reported sale price of our common stock, as reported on The Nasdaq Capital Market was $1.70 per share.

 

Sales of our common stock, if any, under this prospectus may be made in salesby any method permitted by law that is deemed to be an “at the market offerings”offering” as defined in Rule 415415(a)(4) promulgated under the Securities Act of 1933, as amended, or the Securities Act. Each AgentJefferies is not required to sell any specific number or dollar amount of common stock, but will act as our sales agent on a best efforts basis and will useusing commercially reasonable efforts consistent with its normal trading and sales practices to sell on our behalf all of the shares of common stock requested to be sold by us, consistent with its normal trading and sales practices, on mutually agreed terms between each AgentJefferies and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.

 

Our common stock is listed on the Nasdaq Capital Market under the symbol “EYES.” On October 26, 2017, the last reported sale price of our common stock on the Nasdaq Capital Market was $1.09 per share.The aggregate market value of our outstanding common stock held by non-affiliates was $40,944,899 based on 56,806,352 outstanding shares of common stock, of which 32,240,078 shares are held by non-affiliates, and a per share price of $1.27, based upon the closing sale price of our common stock on September 11, 2017. During the 12 calendar month period that ends on, and includes, the date of this prospectus, we have not offered any of our securities pursuant to General Instruction I.B.6 of Form S-3. 

The AgentsJefferies will be entitled to compensation at a commission rate of up to 3.0% of the gross sales price per share sold.proceeds of shares sold under the Sales Agreement. See the section titled “Plan of Distribution” for additional information regarding the compensation to be paid to Jefferies. In connection with the sale of our common stock on our behalf, each AgentJefferies will be deemed to be an “underwriter” within the meaning of the Securities Act and the compensation of the AgentsJefferies will be deemed to be underwriting commissions or discounts. We have also agreed to provide indemnification and contribution to the AgentsJefferies with respect to certain liabilities, including liabilities under the Securities Act or the Securities Exchange Act of 1934, as amended, or the Exchange Act.

We are a “smaller reporting company” under the federal securities laws and, as such, we have elected to comply with certain reduced public company reporting requirements for this prospectus and for future filings. See the section titled “Prospectus Summary—Implications of Being a Smaller Reporting Company.”

 

 

 

INVESTING IN OUR SECURITIES INVOLVES A HIGH DEGREE OF RISKS. SEE THE SECTION TITLED “RISK FACTORS” ON PAGE S-5S-6 OF THIS PROSPECTUS AND ANY SIMILAR SECTION CONTAINED IN THE APPLICABLE PROSPECTUS AND IN THE DOCUMENTS INCORPORATED BY REFERENCE INTOIN THIS PROSPECTUS.PROSPECTUS CONCERNING FACTORS YOU SHOULD CONSIDER BEFORE INVESTING IN OUR COMMON STOCK.

 

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed uponon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.

 

 

 

FBR                                                                                      H.C. Wainwright & Co.Jefferies

 

The date of this prospectus is                   , 2017.2024.

 

 

 

 

 

 

TABLE OF CONTENTS

ABOUT THIS PROSPECTUS S-1
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS PageS-2
ABOUT THIS SALES AGREEMENT PROSPECTUS SUMMARY  S-1
SALES AGREEMENT PROSPECTUS SUMMARY S-2S-3
RISK FACTORS S-5S-6
USE OF PROCEEDS  S-6S-9
FORWARD-LOOKING STATEMENTSDILUTION S-7S-10
DILUTIONDIVIDEND POLICYS-9
PLAN OF DISTRIBUTIONS-11
LEGAL MATTERS S-12
EXPERTSDESCRIPTION OF CAPITAL STOCK  S-12S-13
PLAN OF DISTRIBUTIONS-17
LEGAL MATTERSS-18
EXPERTSS-18
WHERE YOU CAN FIND MORE INFORMATION; INFORMATIONS-18
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE  S-12S-18

 

 

 

 

ABOUT THIS SALES AGREEMENT PROSPECTUS

 

This sales agreement prospectus is part of a registration statement that we have filed with the U.S. Securities and Exchange Commission, or the SEC, utilizing a “shelf” registration process. By using aUnder this shelf registration statement,process, we may offerfrom time to time sell shares of our common stock having an aggregate offering price of up to $13,648,000 from time to time$75,000,000 under this prospectus at prices and on terms to be determined by market conditions at the time of the offering.

We provide information to you about this offering The $75,000,000 of shares of our common stock that may be sold under this prospectus are included in two separate documentsthe $300,000,000 of shares of common stock that are bound together: (1)may be sold under the registration statement.

To the extent there is a conflict between the information contained in this sales agreement prospectus, which describeson the specific details regarding this offering;one hand, and (2) the accompanyinginformation contained in the base prospectus which provides general information, some of which may not apply to this offering. Generally, when we refer to this “prospectus,” we are referring to both documents combined. If informationor in this sales agreement prospectus is inconsistentany document incorporated by reference that was filed with the accompanying baseSecurities and Exchange Commission, or the SEC, before the date of this prospectus, on the other hand, you should rely on the information contained in this prospectus. However, ifIf any statement in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated by reference in thisthe base prospectus—the statement in the document having the later date modifies or supersedes the earlier statement as our business, financial condition, results of operations and prospects may have changed since the earlier dates.statement.

 

You should rely only on the information contained in, or incorporated by reference into,Under this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering. We have not,offer shares of our common stock having an aggregate offering price of up to $75,000,000 from time to time at prices and on terms to be determined by market conditions at the Agents has not, authorized any other person to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not, and the Agents is not, making an offer to sell or soliciting an offer to buy our securities in any jurisdiction where an offer or solicitation is not authorized or in which the person making that offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation. You should assume that the information appearing in this prospectus, the documents incorporated by reference into this prospectus, and in any free writing prospectus that we may authorize for use in connection with this offering, is accurate only astime of the date of those respective documents. Our business, financial condition, results of operations and prospects may have changed since those dates. This prospectus incorporates by reference, and any free writing prospectus may contain and incorporate by reference, market data and industry statistics and forecasts that are based on independent industry publications and other publicly available information. Although we believe these sources are reliable, we do not guarantee the accuracy or completeness of this information and we have not independently verified this information. Although we are not aware of any misstatements regarding the market and industry data presented in this prospectus and the documents incorporated herein by reference, these estimates involve risks and uncertainties and are subject to change based on various factors, including those discussed under the heading “Risk Factors” contained in this prospectus and any related free writing prospectus, and under similar headings in the other documents that are incorporated by reference into this prospectus. Accordingly, investors should not place undue reliance on this information.

offering. You should read this prospectus, the documentsbase prospectus, including the information incorporated by reference, into this prospectus,as well as the additional information described below under the heading “Incorporation of Certain Information by Reference,” the exhibits filed with the SEC, and any free writing prospectus that we may authorizehave authorized for use in connection with this offering, in their entirety before making an investment decision. You should also read and consider the information in the documents to which we have referred you in the sections of this prospectus entitled “Where You Can Find More Information” and “Incorporation by Reference.”

 

We are offering to sell, and seeking offers to buy, shares of common stock only in jurisdictions where offers and sales are permitted. TheFor investors outside the United States, we have not done anything that would permit this offering or possession or distribution of this prospectus, the base prospectus and in any free writing prospectus that we have authorized for use in connection with this offering in any jurisdiction where action for that purpose is required, other than in the offering of the common stock in certain jurisdictions may be restricted by law.United States. Persons outside the United States who come into possession of this prospectus, the base prospectus and any free writing prospectus that we have authorized for use in connection with this offering must inform themselves about, and observe any restrictions relating to, the offering of the common stock and the distribution of this prospectus, outside the United States. This prospectus does not constitute, and may not be used in connection with, an offer to sell, or a solicitation of an offer to buy, any securities offered bythis prospectus by any person in any jurisdiction in which it is unlawful for such person to make such an offer or solicitation.

Unless the context otherwise requires, references in this prospectus to “Second Sight,” “the Company,” “we,” “us” and “our” refer to Second Sight Medical Products, Inc. Second Sight®, the Second Sight logo, FLORA®, and Argus® are registered trademarks, and Orion is a trademark of Second Sight Medical Products. Inc. All other product and company names are trademarks of their respective owners. When we refer to “you,” we mean the holders of the applicable series of securities.


This prospectus may also include trademarks, tradenames, and service marks that are the property of other organizations. Solely for convenience, our trademarks and tradenames referred to in this prospectus may appear without the ® and ™ symbols, but those references are not intended to indicate, in any way, that we will not assert, to the fullest extent under applicable law, our rights, or the right of the applicable licensor to these trademarks and tradenames.

SALES AGREEMENT PROSPECTUS SUMMARY

This summary provides a general overview of selected information and does not contain all of the information you should consider before buying our common stock. Therefore, you should read the entirebase prospectus and any free writing prospectus that we have authorized for use in connection with this offering carefully, includingoutside the information incorporated by reference, before deciding to invest in our common stock. Investors should carefully consider the information set forth under “Risk Factors” beginning on page S-5 of this prospectus and incorporated by reference to our annual report on Form 10-K and our quarterly reports on Form 10-Q.

Second Sight was founded in 1998 with a mission to develop, manufacture, and market prosthetic devices that restore useful vision to blind individuals. Our principal offices are located in Sylmar, California, approximately 25 miles northwest of downtown Los Angeles. We also have an office in Lausanne, Switzerland, that manages our commercial and clinical operations in Europe, the Middle East, Latin America and Asia-Pacific.

Our principal corporate headquarters are located at 12744 San Fernando Road, Suite 400, Sylmar, California 91342. Our telephone number is (818) 833-5000. Our website address is www.secondsight.com. The information contained on, or that can be accessed through, our website is not a part of this prospectus.


THE OFFERING

Common stock outstanding as of the date of this prospectus

56,806,352 shares 

Common stock offered by usShares of common stock with an aggregate sale price of up to $13,648,000.
Common stock to be outstanding immediately after this offering69,327,453 shares (as more fully described in the notes following this table), assuming sales at a price of $1.09 per share, which was the closing price of our common stock on The Nasdaq Capital Market on October 26, 2017. The actual number of shares issued will vary depending on the sales price under this offering and the amount raised.
Manner of offeringTransactions deemed to be “at the market offerings” that may be made from time to time through each Agent, as sales agent, using commercially reasonable efforts. See “Plan of Distribution.”
Use of proceedsWe intend to use the net proceeds from the sale of the securities offered by us pursuant to this prospectus for general corporate and working capital purposes. See “Use of Proceeds” on page S-6.
Risk factorsIn analyzing an investment in the shares of common stock being offered pursuant to this prospectus, you should carefully consider, along with other matters included or incorporated by reference in this prospectus or any accompanying prospectus supplement, the information set forth under “Risk Factors” in this prospectus and the risks discussed in the documents incorporated by reference in this prospectus. The actual number of shares we may issue and amounts that we can raise under our agreement with the Agents is uncertain and may not satisfy our near term and midterm capital needs.
Nasdaq Capital Market symbolsOur common stock and our common stock warrants are listed on The Nasdaq Capital Market under the symbols “EYES” and “EYESW,” respectively.

The number of shares of common stock to be outstanding after this offering is based on 56,806,352 shares of common stock outstanding on September 30, 2017 and excludes:

●5,530,464 shares of common stock issuable upon the exercise of outstanding options at a weighted average exercise price of $4.98 per share, of which options to purchase 2,089,952 shares are vested as of September 30, 2017;
●2,650,253 shares of common stock reserved for issuance pursuant to future awards under our 2011 Equity Incentive Award Plan;

●95,000 Restricted Stock Units unvested at September 30, 2017;
●514,861 shares of common stock available for purchase under our Employee Stock Purchase Plan, as well as any automatic increases in the number of shares of our common stock reserved for future issuance under this plan;
●13,652,341 shares of common stock issuable upon the exercise of outstanding warrants at an exercise price of $1.47 per share, all of which are currents exercisable;
●802,000 shares of common stock issuable upon exercise of outstanding Underwriter’s warrants at an exercise price of $11.25 per share, all of which are currently exercisable; and
●676,495 shares of common stock issuable upon exercise of outstanding warrants associated with convertible debt at an exercise price of $5.00.

RISK FACTORSUnited States.

 

You should consider carefullyrely only on the risks described belowinformation contained or incorporated by reference in this prospectus and discussed under the section captioned “Risk Factors”base prospectus, along with the information contained in our annual reportany free writing prospectus that we have authorized for use in connection with this offering. We have not, and Jefferies has not, authorized anyone to provide you with different or additional information. If anyone provides you with different or inconsistent information, you should not rely on Form 10-Kit. We and Jefferies take no responsibility for, and can provide no assurance as to the year ended December 31, 2016,reliability of, any other information that others may give you. You should assume that the information appearing in this prospectus, the base prospectus, the documents incorporated by reference in this prospectus and the base prospectus, and in any free writing prospectus that we have authorized for use in connection with this offering is accurate only as updatedof the respective dates of those documents, unless we indicate otherwise. Our business, financial condition, results of operations and prospects may have changed since those dates.

We further note that the representations, warranties and covenants made by our subsequent filings under the Securities Exchange Act of 1934,us in any agreement that is filed as amended, or the Exchange Act, each of whichan exhibit to any document that is incorporated by reference in this prospectus or the base prospectus were made solely for the benefit of the parties to such agreement, including, in its entirety, together with other informationsome cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or covenant to you. Moreover, such representations, warranties and covenants were accurate only as of the date when made; therefore, such representations, warranties and covenants should not be relied on as accurate representations of the current state of our affairs.

Unless otherwise indicated or the context suggests otherwise, references in this prospectus and the informationbase prospectus to “Vivani Medical,” “Vivani,” the “company,” “we,” “us,” and “our,” and similar designations refer to Vivani Medical, Inc., a Delaware corporation and, where appropriate, our consolidated subsidiaries. When we refer to “you,” we mean the potential purchasers of our common stock in this offering.


CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This prospectus, the base prospectus and the documents incorporated by reference in this prospectus,herein and therein, and any free writing prospectus that we have authorized for use in connection with this offering, contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act of 1934, as amended, or the Exchange Act. Any statements about our expectations, beliefs, plans, objectives, assumptions or future events or performance are not historical facts and are forward-looking. These statements are often, but are not always, made through the use of words or phrases such as “may,” “could,” “will,” “would,” “should,” “expect,” “plan,”, “anticipate,” “believe,” “estimate,” “intend,” “predict,” “seek,” “contemplate,” “project,” “continue,” “potential,” “ongoing” and similar expressions, or the negative of these terms, or similar expressions. Accordingly, these statements are subject to risks and uncertainties that could cause actual results to differ materially from those expressed in them. Any forward-looking statements are qualified in their entirety by reference to the factors discussed throughout this prospectus, and in particular those factors referenced in the section titled “Risk Factors.” This prospectus contains forward-looking statements that relate to future events or our future financial performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to be materially different from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Forward-looking statements include, but are not limited to, statements about:

●our anticipated operating and financial performance, business plans, and prospects;

●expectations for our products, including anticipated regulatory submissions, study completion, approvals, clinical trial results and other developing data that become available, potential market size, and potential reimbursement pathways;

●the timing and likelihood of, and our ability to obtain and maintain, regulatory clearance of our Investigational New Drug, applications for and regulatory approval of our product candidates;

●our ability to create and maintain a pipeline of product candidates;

●our ability to advance any product candidate into, and successfully complete clinical trials;

●our ability to initiate and successfully maintain operations of our subsidiary in Australia, including with respect to studies of our products and product candidates;

●the initiation, timing, design, progress and results of our clinical trials, and our research and development program;

●the success of the business combination on including future capital expenditures, expenses, synergies, economic performance, indebtedness, financial condition, losses, future prospects, business and management strategies for the management, expansion and growth of the combined company’s operations and other conditions to the successful synergies of the business combination;

●the impacts of the ongoing COVID-19 pandemic and macroeconomic factors that could impact our business, such as supply chain and inflationary pressures and the effects of the Russian invasion of Ukraine on the global economy, on our business or operations;

●the impact of laws and regulations in the United States and foreign countries on various aspects of our operations, including our regulatory and clinical strategy;

●other risks and uncertainties, including those listed in the section titled “Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2023; and

●the anticipated use of proceeds from this offering, if any.

These statements relate to future events or to our future financial performance and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. In evaluating such forward-looking statements, you should specifically consider various factors that may cause actual results to differ materially from current expectations, including the risks outlined in the section titled “Risk Factors” contained in this prospectus, the base prospectus or any related free writing prospectus, and in any other documents incorporated herein or therein (including in our most recent annual report on Form 10-K, subsequent quarterly reports on Form 10-Q and other filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act). Any forward-looking statement in this prospectus, the base prospectus or any related free writing prospectus reflects our current view with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our operations, results of operations, industry and future growth. Given these uncertainties, you should not place undue reliance on these forward-looking statements. Except as required by law, we assume no obligation to update or revise these forward-looking statements for any reason, even if new information becomes available in the future.


PROSPECTUS SUMMARY

This summary highlights certain information about us, this offering and selected information contained elsewhere in this prospectus and in the documents we incorporate by reference. This summary is not complete and does not contain all of the information you should consider before you make a decision to investinvesting in our common stock. For a more complete understanding of our company and this offering, you should carefully read this entire prospectus, including the information incorporated herein and any free writing prospectus that we may authorize for use in connection with this offering, including the section titled “Risk Factors” of this prospectus and any related free writing prospectus, and in any other documents incorporated herein or therein (including in our most recent Annual Report on Form 10-K and other filings we make with the SEC pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act), along with our condensed consolidated financial statements and notes to those condensed consolidated financial statements and the other documents incorporated by reference in this prospectus.

Vivani Medical, Inc.

Overview

We are a preclinical stage biopharmaceutical company which develops miniaturized, subdermal implants utilizing our proprietary NanoPortal™ technology to enable long-term, near constant-rate delivery of a broad range of medicines to treat chronic diseases. We use this platform technology to develop and potentially commercialize drug implant candidates, alone or in collaboration with pharmaceutical company partners to address a leading cause of poor clinical outcomes in the treatment of chronic disease, medication non-adherence. For example, approximately 50% of patients treated for type 2 diabetes are non-adherent to their medicines, which can lead to poor clinical outcomes. We are developing a portfolio of miniature, sub-dermal drug implant candidates that, unlike most oral and injectable medicines, are designed with the goal of guaranteeing adherence by delivering therapeutic drug levels for up to 6 months or longer. In addition, our aim is to minimize fluctuations in patients’ drug levels through the use of our NanoPortal technology, which may improve the tolerability profiles for medicines that produce side effects associated with fluctuating drug levels in the blood.

Our implant technology, which we refer to as NanoPortal, utilizes a space-efficient design that allows a miniaturized implant to provide many months of therapeutic delivery of potent molecules. The technology has no moving parts, which is intended to minimize fluctuating drug delivery over the duration of the implant and is also tunable. We have primarily been developing implant candidates around peptide therapeutics, but the technology has potential application across a wide range of molecular types. The key innovative component of the technology is a biocompatible titanium-oxide nano-porous membrane which consists of millions of precisely sized nanotubes whose inner diameters represent the only path for drug molecules to exit the reservoir once the implant is fully assembled.

Company History and Information

We were incorporated under the laws of California on December 17, 2009 and our operations began in 2010. In February 2022, we announced the signing of a definitive merger agreement between Nano Precision Medical, Inc., or NPM and Second Sight Medical Products, Inc., or Second Sight, pursuant to which NPM became a wholly owned subsidiary of Second Sight. On August 30, 2022, the merger closed and the combined company of NPM and Second Sight was renamed Vivani Medical, Inc. On July 6, 2023, we changed our state of incorporation from the State of California to the State of Delaware by means of a plan of conversion, effective July 5, 2023. Our corporate office is located at 1350 S. Loop Road, Alameda, CA 94502, our telephone number is (415) 506-8462; and our website is located at www.vivani.com.We do not incorporate the information on or accessible through our website into this prospectus, and you should not consider any information on, or that can be accessed through, our website as part of this prospectus.


We own various U.S. federal trademark applications and unregistered trademarks, including our company name. All other trademarks or trade names referred to in this prospectus are the property of their respective owners. Solely for convenience, the trademarks and trade names in this prospectus are referred to without the ® and ™ symbols, but such references should not be construed as any indicator that their respective owners will not assert, to the fullest extent under applicable law, their rights thereto.

Implications of Being a Smaller Reporting Company

We are a “smaller reporting company” as defined in the Exchange Act. As a result, we may take advantage of certain of the scaled disclosures available to smaller reporting companies. We will remain a smaller reporting company until the fiscal year following the determination that our common stock held by non-affiliates is more than $250 million measured on the last business day of our second fiscal quarter, or our annual revenues are less than $100 million during the most recently completed fiscal year and our common stock held by non-affiliates is more than $700 million measured on the last business day of our second fiscal quarter.


The Offering

Common stock offered by usShares of our common stock having an aggregate offering price of up to $75,000,000.
Common stock to be outstanding immediately after this offeringUp to 95,148,744 shares, assuming sales of up to 44,117,647 shares of our common stock in this offering at an offering price of $1.70 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on April 19, 2024. The actual number of shares issued will vary depending on how many shares of our common stock we choose to sell and the prices at which such sales occur.
Plan of distribution“At the market offering” that may be made from time to time on The Nasdaq Capital Market or such other national securities exchange on which our common stock is then listed, Jefferies, as our sales agent. See the section titled “Plan of Distribution.”
Use of proceedsWe currently intend to use the net proceeds from this offering, if any, together with our existing cash and cash equivalents, to fund research, product development and clinical development of current or additional pipeline candidates, working capital, capital expenditures and other general corporate purposes. See the section titled “Use of Proceeds.”
Risk factorsInvesting in our common stock involves significant risks. See the section titled “Risk Factors” and the other information included in, or incorporated by reference into, this prospectus for a discussion of certain factors you should carefully consider before deciding to invest in shares of our common stock.
The Nasdaq Capital Market symbol“VANI”

All information in this prospectus related to the number of shares of our common stock to be outstanding immediately after this offering is based on 51,031,097 shares of our common stock issued and outstanding as of December 31, 2023 and excludes:

●6,090,617 shares of common stock issuable upon the exercise of stock options outstanding as of December 31, 2023 under our 2022 Omnibus Incentive Plan, or 2022 Plan, at a weighted-average exercise price of $2.60 per share and 402,500 of outstanding and unvested restricted stock unit awards, for which there is no exercise price;

●3,177,071 shares of common stock reserved for future issuance as of December 31, 2023 under our 2022 Plan; and

●3,947,368 shares of common stock and warrants to purchase 3,947,368 shares of common stock, at a weighted average exercise price of $3.80 per underlying share of common stock, issued pursuant to our registered direct offering on March 1, 2024.

Unless otherwise stated, all information contained in this prospectus (i) assumes no exercise of stock options or vesting of restricted stock unit awards after December 31, 2023 and (ii) reflects an assumed public offering price of $1.70, which was the last reported sale price of our common stock on The Nasdaq Capital Market on April 19, 2024.


RISK FACTORS

Investing in our common stock involves a high degree of risk. Before investing in our common stock, you should consider carefully the risks described below and in our most recent Annual Report on Form 10-K and any subsequent Quarterly Reports on Form 10-Q or Current Reports on Form 8-K, as well as any amendments thereto reflected in subsequent filings filed with the SEC, together with the other information contained in this prospectus and in our filings with the SEC that we have incorporated by reference in this prospectus and in any free writing prospectus that we may authorize for use in connection with this offering. If any of the following events actuallyrisks occur, our business, financial condition, results of operations financial condition orand future growth prospects could be materially and adversely affected. This could causeIn these circumstances, the tradingmarket price of our common stock tocould decline, and you may lose all or part of your investment. TheAdditional risks described belowand uncertainties that are not the only ones that we face. Additional risks not presently known to usyet identified or that we currently deembelieve to be immaterial may also affectmaterially harm our business, operations.financial condition, results of operations and prospects and could result in a complete loss of your investment. The risks discussed in our filings with the SEC and below also include forward-looking statements, and our actual results may differ substantially from those discussed in these forward-looking statements. See the section titled “Cautionary Note Regarding Forward-Looking Statements.”

 

Additional Risks RelatingRelated to this Offering and Our Common Stock

 

Our management teamIf you purchase our common stock in this offering, you will incur immediate and substantial dilution in the book value of your shares. You will experience further dilution in connection with future common stock issuances.

Investors purchasing common stock in this offering will pay a price per share that substantially exceeds the as adjusted book value per share of our tangible assets as of December 31, 2023, after subtracting our liabilities. As a result, investors purchasing common stock in this offering will incur immediate dilution of $0.72 per share, based on the difference between the assumed public offering price of $1.70 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on April 19, 2024, and the as-adjusted net tangible book value per share of our outstanding common stock as of December 31, 2023.

This dilution is due to the substantially lower price paid by some of our investors who purchased shares prior to this offering as compared to the price offered to the public in this offering, and a exercise of stock options granted to our employees. In addition, as of December 31, 2023, options to purchase 6,090,617 common stock at a weighted-average exercise price of $2.60 per common share were outstanding, of which 4,125,022 were exercisable as of such date, and there were 402,500 of our common stock reserved for issuance upon the vesting, release and settlement of restricted stock units outstanding as of such date. The exercise of any of these options or the vesting of any of these restricted stock units would result in additional dilution. Furthermore, if any of our outstanding options or warrants are exercised at prices below the offering price, or if we grant additional options or other awards under our equity incentive plans or issue additional warrants, you may investexperience further dilution of your investment. As a result of the dilution to investors purchasing shares in this offering, investors may receive significantly less than the purchase price paid in this offering, if anything, in the event of our liquidation. Further, because we will need to raise additional capital to fund our future activities, we may in the future sell substantial amounts of common stock or spendsecurities convertible into or exchangeable for common stock.

These future issuances of common stock or common share-related securities, together with the exercise of outstanding options, the vesting of outstanding restricted stock units and any additional shares issued in connection with acquisitions, if any, may result in further dilution. For a further description of the dilution that you will experience immediately after this offering, see the section titled “Dilution.”

We have broad discretion in how we use the proceeds of this offering, in ways with which youif any, and may not agree or in waysuse these proceeds effectively, which may not yield a significant return.could affect our results of operations and cause our common stock price to decline.

 

Our management will have broad discretion over the use of proceeds from this offering. We intend to use the net proceeds, if any, from this offering for working capital and general corporate purposes, including research and development expenses and capital expenditures. However, we have not determined the specific allocation of the net proceeds among these potential uses. Our management will have considerable discretion in the application of the net proceeds of this offering, if any. We currently expect to use the net proceeds of this offering to fund research, product development and clinical development of current or additional pipeline candidates, working capital, capital expenditures and other general corporate purposes. As a result, investors will be relying upon management’s judgment with only limited information about our specific intentions for the use of the balance of the net proceeds of this offering. Because of the number and variability of factors that will determine our use of the net proceeds from this offering, their ultimate use may vary substantially from their currently intended use. Our management will have broad discretion in the application of the net proceeds from this offering and you will not have the opportunity as part of your investment decision to assess whether the net proceeds are being used appropriately. TheOur management might not spend the net proceeds may be used for corporate purposesin ways that do not increaseimprove our operating results of operations or enhance the value of our common stock.

You may experience immediate and substantial dilution The failure by our management to apply these funds effectively could result in the net tangible book value per share of the common stock you purchase.

The price per share offinancial losses that could have a material adverse effect on our common stock being offered may be higher thanbusiness, cause the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an aggregate of 12,521,100 shares are sold at a price of $1.09 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on October 26, 2017, for aggregateto decline and delay the development of our product candidates. Pending their use, we may invest the net proceeds of up to $13,648,000 infrom this offering and after deducting commissions and estimated aggregate offering expenses payable by us, you will suffer immediate and substantial dilution of $0.63 per share, representing the difference between the as adjusted net tangible book value per share of our common stock as of June  30, 2017 after giving effect to this offering and the assumed offering price.in a manner that does not produce income or that loses value. See the section entitled “Dilution” below for a more detailed discussiontitled “Use of the dilution you will incur if you purchase common stock in this offering.Proceeds.”

 


YouThe sale of our common stock in this offering and any future sales of our common stock, or the perception that such sales could occur, may experience future dilution as a result of futuredepress our share price and our ability to raise funds in new equity offerings.

 

We may from time to time issue additional common stock at a discount from the current trading price of our common stock. As a result, our shareholders would experience immediate dilution upon the purchase of any common stock sold at such discount. In order to raise additional capital,addition, as opportunities present themselves, we may enter into financing or similar arrangements in the future, offer additionalincluding the issuance of debt securities, units, warrants, preferred stock or common stock. Sales of our common stock in this offering and in the public market following this offering, or the perception that such sales could occur, may lower the market price of our common stock and may make it more difficult for us to sell equity securities or equity-related securities in the future at a time and price that our management deems acceptable, or at all.

Sales of a significant number of shares of our common stock in this offering or other securities convertible intothe public markets in general, or exchangeable forthe perception that such sales could occur, could depress the market price of our common stock. We cannot assure you that we will be able to sell shares or other securities in any other offering at

The sale of a price per share that is equal to or greater than the price per share paid by investors in this offering, and investors purchasing shares or other securities in the future could have rights superior to existing shareholders. The price per share at which we sell additionalsubstantial number of shares of our common stock or other securities convertible into or exchangeable for our common stock in the public markets, or the perception that such sales could occur, could depress the market price of our common stock and impair our ability to raise capital through the sale of additional equity securities. We may sell large quantities of our common stock at any time pursuant to this prospectus or in one or more separate offerings. We cannot predict the effect that future transactionssales of common stock or other equity-related securities would have on the market price of our common stock. The sale, or the availability for sale, of a large number of our common stock in the public market could cause the price of our common stock to decline.

We do not intend to pay dividends on our common stock so any returns will be limited to the value of our common stock.

We currently anticipate that we will retain future earnings for the development, operation and expansion of our business and do not anticipate declaring or paying any cash dividends for the foreseeable future. Any return to shareholders will therefore be limited to the appreciation of their common stock.

The common stock offered hereby will be sold in “at the market” offerings, and investors who buy shares at different times will likely pay different prices.

Investors who purchase shares in this offering at different times will likely pay different prices, and so may be higherexperience different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices, and numbers of shares sold, and there is no minimum or maximum sales price. Investors may experience a decline in the value of their shares as a result of share sales made at prices lower than the prices they paid.

The actual number of shares we will issue under the Sales Agreement, at any one time or in total, is uncertain.

Subject to certain limitations in the Sales Agreement and compliance with applicable law, we have the discretion to deliver placement notices to Jefferies at any time throughout the term of the Sales Agreement. The number of shares that are sold by Jefferies after delivering a placement notice will fluctuate based on the market price of the common stock during the sales period and limits we set with Jefferies, and the demand for our common stock during the sales period. Because the price per share in this offering. As of June 30, 2017, approximately 24,295,197 shareseach share sold will fluctuate based on the market price of our common stock during the sales period, it is not possible at this stage to predict the number of shares that are either subject to outstanding options, issuable upon vesting of outstanding restrictedwill be ultimately issued.


Unstable market and economic conditions may have serious adverse consequences on our business, financial condition and stock units, reserved for future issuance under our equity incentive plans, or our employee stock purchase plans, or subject to outstanding warrants, are eligible for saleprice.

As widely reported, global credit and financial markets have experienced extreme volatility and disruptions in the publicpast several years, including severely diminished liquidity and credit availability, declines in consumer confidence, declines in economic growth, increases in unemployment rates and uncertainty about economic stability, including most recently in connection with the COVID-19 pandemic. There can be no assurance that further deterioration in credit and financial markets and confidence in economic conditions will not occur. Our general business strategy may be adversely affected by any such economic downturn, volatile business environment or continued unpredictable and unstable market conditions. If the current equity and credit markets deteriorate, or do not improve, it may make any necessary debt or equity financing more difficult, more costly, and more dilutive. Furthermore, our stock price may decline due in part to the extent permitted byvolatility of the provisions of various vesting schedulesstock market and Rule 144 and Rule 701 under the Securities Act.general economic downturn.

 

Failure to secure any necessary financing in a timely manner and on favorable terms could have a material adverse effect on our growth strategy, financial performance and stock price and could require us to delay, scale back or discontinue the development and commercialization of one or more of our product candidates or delay our pursuit of potential in-licenses or acquisitions. In addition, there is a risk that one or more of our current service providers, manufacturers and other partners may not survive these difficult economic times, which could directly affect our ability to attain our operating goals on schedule and on budget.


USE OF PROCEEDS

 

We may issue and sell shares of our common stock from time to time having aggregate sales proceeds of up to $13,648,000 from time to time.$75,000,000. The amount of proceeds from this offering will depend upon the number of shares of our common stock sold and the market price at which they are sold. There can be no assurance that we will be able to sell any shares under or fully utilize the sales agreementSales Agreement with the AgentsJefferies as a source of financing. Therefore, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time.

We currently intend to use the net proceeds if any, from this offering, forif any, together with our existing cash and cash equivalents, to fund research, product development, and clinical development of current or additional pipeline candidates, working capital, capital expenditures and other general corporate purposes, including research and development expenses and capital expenditures.purposes.

 

The expected use of net proceeds from this offering represents our intentions based upon our current plans and business conditions, which could change in the future as our plans and business conditions evolve. The amounts and timing of our actual revenue and expenditures may vary significantly depending on numerous factors, including the actual net proceeds from this offering (which will depend on numerousthe market price of our common stock during the sales period, any limits we may set with Jefferies in any applicable placement notice and the demand for our common stock), the progress of our development, the status of and results from clinical trials and collaborations that we may enter into with third parties for our product candidates and any unforeseen cash needs, including the factors as well asdescribed in the amountsection title “Risk Factors” in this prospectus, the base prospectus, and in the documents incorporated by reference herein and therein. As a result, our management will retain broad discretion over the allocation of cash used in our operations. We therefore cannot estimate with certainty the amount of net proceeds to be used for the purposes described above.from this offering. We may find it necessary or advisable to use the net proceeds from this offering for other purposes, and we will have broad discretion in the application of the net proceeds. Pending the uses described above, we plan to investour use of the net proceeds from this offering, we may invest the net proceeds in a variety of capital preservation investments, including short-term, investment-grade, interest-bearing securities.


FORWARD-LOOKING STATEMENTS

 This prospectusinstruments and the documents included or incorporated by reference in this prospectus contains forward-looking statements.  Forward-looking statements give our current expectations or forecasts of future events.  You can identify these statements by the fact that they do not relate strictly to historical or current facts.  You can find many (but not all) of these statements by looking for words such as “approximates,” “believes,” “hopes,” “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “would,” “should,” “could,” “may” or other similar expressions in this prospectus.  In particular, these include statements relating to future actions, prospective products, applications, customers, technologies, future performance or results of anticipated products, expenses, and financial results.  These forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from our historical experience and our present expectations or projections.  Factors that could cause actual results to differ from those discussed in the forward-looking statements include, but are not limited to:

●our liquidity and our ability to raise capital to finance our operations,
●our limited cash and a history of losses,
●our future financial and operating results and our ability to achieve profitability,
●our limited experience in marketing our product at a sustainable commercial level and  need to expand our domestic and international marketing programs,
●emerging competition and rapidly advancing technology or alternative therapies and treatments for persons suffering from blindness,
●customer demand for the products we develop, effective pricing and obtaining reimbursement under government and private insurance programs,
●our need to conduct and pay for additional clinical trials to determine efficacy of the Argus II System in treating patients with AMD and for new products that we are planning on developing especially the Orion I product,
●obtaining a U.S. outpatient payment rate that adequately covers the costs incurred by hospitals for the Argus II device and implant procedure,
●our ability to obtain adequate government and private party insurance reimbursements for our products domestically and in foreign markets,
●the impact of competitive or alternative products, technologies and pricing,
●general economic conditions and events and the impact they may have on us and our potential customers,
●the adequacy of protections afforded to us by the patents that we own and license and the cost to us of maintaining, enforcing and defending those patents and licenses,
●our ability to obtain, expand and maintain patent protection in the future, and to protect our non-patented intellectual property,
●our exposure to and ability to defend third-party claims and challenges to our patents, licenses and other intellectual property rights,
●our ability to obtain adequate financing in the future,
●our ability to continue as a going concern,

●our ability to develop, successfully test and obtain FDA and other regulatory approvals for the Orion I,
●our intentions, expectations and beliefs regarding anticipated growth, market penetration and trends in our business,
●the timing and success of our plan of product commercialization,
●the effects of market conditions on our stock price and operating results,
●our ability to timely and effectively adapt our existing technology and have our technology solutions gain market acceptance,
●our plans to use the proceeds from this offering,
●our ability to comply with evolving legal standards and regulations, particularly concerning requirements for being a public company and United States export regulations,
●the attraction and retention of qualified employees and key personnel, and
●other factors discussed in the “Risk Factors” section of this prospectus.

Forward-looking statements are based upon management’s beliefs and assumptions and are made as of the date of this prospectus. We undertake no obligation to publicly update or revise any forward-looking statements included in this prospectus or to update the reasons why actual results could differ from those contained in such statements, whether as a result of new information, future events or otherwise, except to the extent required by federal securities laws.  Actual future results may vary materially as a result of various factors, including, without limitation, the risks outlined under the section entitled “Risk Factors” and matters described in this prospectus generally.  In light of these risks and uncertainties, we cannot assure you that the forward-looking statements contained in this prospectus will in fact occur.

You should not rely upon forward-looking statements as predictions of future events. Although we believe that the expectations reflected in our forward-looking statements are reasonable, we cannot guarantee that the future results, levels of activity, performance or events and circumstances described in the forward-looking statements will be achieved or occur. Moreover, neither we nor any other person assumes responsibility for the accuracy and completeness of the forward-looking statements. We undertake no obligation to update publicly any forward-looking statements for any reason after the date of this prospectus to conform these statements to actual results or to changes in our expectations, except as required by law.

You should read this prospectus and the documents that we reference in this prospectus and have filed with the Securities and Exchange Commission as exhibits to the registration statement of which this prospectus is a part with the understanding that our actual future results, levels of activity, performance and events and circumstances may be materially different from what we expect.

U.S. government securities.


DILUTION

 

OurIf you invest in this offering, your ownership interest will be diluted immediately to the extent of the difference between the public offering price per share and the as-adjusted net tangible book value as of June 30, 2017 was approximately $18.8 million, or $0.33 per share. Net tangible book value per share is determined by dividingof our totalcommon stock, after giving effect to this offering.

As of December 31, 2023, we had net tangible assets, less total liabilities, by the numberbook value of approximately $20.8 million, or $0.41 per share of our common stock, based upon 51,031,097 shares of our common stock outstanding as of June 30, 2017.that date. Historical net tangible book value per share is equal to our total tangible assets, less total liabilities, divided by the number of outstanding shares of our common stock. Dilution in net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this offering and the as adjusted net tangible book value per share of our common stock immediately after giving effect to this offering.

 

After giving effect to the sale of our common stock pursuant to this prospectus in the aggregate amount of $13,648,000$75.0 million in this offering at an assumed offering price of $1.09,$1.70 per share, which was the last reported sale price of our common stock on The Nasdaq Capital Market on October 26, 2017,April 19, 2024, and after deducting $501,000 of commissions and estimated aggregate offering expenses payable by us, our as adjustedas-adjusted net tangible book value as of June 30, 2017December 31, 2023 would have been approximately $32.0$93,222,000 million, or $0.46$0.98 per share.share of common stock. This represents an immediate increase in the net tangible book value of $0.13$0.57 per share to our existing shareholdersstockholders and an immediate dilution in net tangible book value of $0.63$0.72 per share to new investors purchasing our common stock in this offering. The following table illustrates this dilution on a per share basis:dilution to new investors: 

         
Assumed offering price per share     $1.70 
Net tangible book value per share as of December 31, 2023  0.41     
Increase per share attributable to sale of shares of common stock in this offering $0.57     
As-adjusted net tangible book value per share as of December 31, 2023 after giving effect to this offering      0.98 
Dilution per share to new investors purchasing shares in this offering     $0.72 

 

Assumed public offering price per share     $1.09 
         
Net tangible book value per share as of June 30, 2016 $0.33   
Increase per share attributable to new investors  0.13   
         
As adjusted net tangible book value per share after this offering      0.46 
         
Dilution per share to new investors     $0.63 


The table above assumes for illustrative purposes that an aggregate of 44,117,647 shares of our common stock are sold pursuant to this prospectus at a price of $1.70 per share, the last reported sale price of our common stock on The Nasdaq Capital Market on April 19, 2024, for aggregate gross proceeds of $75.0 million. The shares sold in this offering, if any, will be sold from time to time at various prices. An increase of $0.20$1.00 per share in the price at which the shares are sold from the assumed offering price of $1.09to $2.70 per share, shown in the table above, assuming all of our common stock in the aggregate amount of $13,648,000$75.0 million is sold at that price, would increase our as adjustedresult in an as-adjusted net tangible book value per share after the offering to $0.47of $1.18 per share and would increase the dilution in net tangible book value per share to new investors purchasing shares in this offering to $0.82$1.52 per share, after deducting commissions and estimated aggregate offering expenses payable by us. A decrease of $0.20$1.00 per share in the price at which the shares are sold from the assumed offering price of $1.09to $0.70 per share, shown in the table above, assuming all of our common stock in the aggregate amount of $13,648,000$75.0 million is sold at that price, would cause our as adjustedresult in an as-adjusted net tangible book value per share after the offering to be $0.44of $0.59 per share and would decrease the dilution in net tangible book value per share to new investors purchasing shares in this offering to $0.45$0.11 per share, after deducting commissions and estimated aggregate offering expenses payable by us.

This information is supplied for illustrative purposes only. only and will adjust based on the actual offering prices, the actual number of shares that we offer and sell in this offering and other terms of each sale of shares in this offering.

The information above and in the foregoing table is based on 51,031,097 shares of our common stock issued and outstanding as of December 31, 2023 and excludes the following:

●6,090,617 shares of common stock issuable upon the exercise of stock options outstanding as of December 31, 2023 under our 2022 Plan, at a weighted-average exercise price of $2.60 per share and 402,500 of outstanding and unvested restricted unit awards, for which there is no exercise price;

●3,177,071 shares of common stock reserved for future issuance as of December 31, 2023 under our 2022 Plan; and


●3,947,368 shares of common stock and warrants to purchase 3,947,368 shares of common stock, at a weighted average exercise price of $3.80 per underlying share of common stock, issued pursuant to our registered direct offering on March 1, 2024.

To the extent that options outstanding optionsas of December 31, 2023 have been or warrants aremay be exercised or outstanding restricted stock units vest,settle, as applicable, or other shares issued, investors purchasing our common stock in this offering may experience further dilution. In addition, we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that we raise additional capital through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our shareholders.stockholders.


DIVIDEND POLICY

 

We have never declared or paid cash dividends on our common stock and do not anticipate paying any dividends in the foreseeable future.


DESCRIPTION OF CAPITAL STOCK

The above discussionfollowing description of our common stock and table are based on 56,794,477preferred stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of the common stock and preferred stock that we may offer under this prospectus. The following description of our capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our certificate of incorporation, as amended from time to time, or Certificate of Incorporation, and our bylaws, as amended from time to time, or Bylaws, and by applicable law. The terms of our common stock and preferred stock may also be affected by Delaware law.

General

Our authorized capital stock consists of Three Hundred Million (300,000,000) shares of common stock, outstanding aspar value $0.0001 per share and Ten Million (10,000,000) shares of June 30, 2017, and exclude as of that date:undesignated preferred stock, par value $0.0001 per share.

 

Common Stock

●5,536,099 shares of common stock issuable upon the exercise of outstanding options at a weighted average exercise price of $5.07 per share, of which options to purchase 1,881,672 shares are vested as of June 30, 2017;
●2,644,618 shares of common stock reserved for issuance pursuant to future awards under our 2011 Equity Incentive Award Plan;

The holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote of the stockholders. The holders of our common stock do not possess any cumulative voting rights. Except for the election of directors, if a quorum is present at any meeting of stockholders, an action on a matter is approved if it receives the affirmative vote of the majority of the votes properly cast for such matter, unless otherwise required by applicable law, the Certificate of Incorporation, or Bylaws. The election of directors by stockholders will be determined by a plurality of the votes properly cast. The rights, preferences, and privileges of holders of Common Stock are subject to, and may be impacted by, the rights of the holders of shares of any series of preferred stock that we have designated, or may designate and issue in the future. Holders of our common stock are entitled to receive dividends ratably, as may be declared by our board of directors out of funds legally available for that purpose, subject to any preferential dividend rights of any preferred stock then outstanding. Upon voluntary or involuntary liquidation, dissolution or winding up, our net assets shall be distributed pro rata to the holders of our common stock. Holders of our Common Stock are not entitled to preemptive, subscription, redemption, or conversion rights, and no sinking fund provisions are applicable to our common stock.

Our common stock is listed on the Nasdaq Capital Market under the trading symbol “VANI.”

Undesignated Preferred stock

Our board of directors has the authority, without further action by our stockholders, to issue up to 10,000,000 shares of undesignated preferred stock in one or more series and to fix the rights, preferences, privileges, and restrictions thereof. These rights, preferences, and privileges could include dividend rights, conversion rights, voting rights, terms of redemption, liquidation preferences, sinking fund terms, and the number of shares constituting, or the designation of, such series, any or all of which may be greater than the rights of common stock. The issuance of our preferred stock could adversely affect the voting power of holders of our common stock and the likelihood that such holders will receive dividend payments and payments upon our liquidation. In addition, the issuance of preferred stock could have the effect of delaying, deferring, or preventing a change in control of our Company or other corporate action. No shares of preferred stock are outstanding, and we have no present plan to issue any shares of preferred stock.

Anti-Takeover Effects of our Certificate Of Incorporation and Bylaws and Delaware Law

Our Certificate of Incorporation and Bylaws include a number of provisions that may have the effect of delaying, deferring or preventing another party from acquiring control of us and encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our board of directors rather than pursue non-negotiated takeover attempts. These provisions include the items described below.

 


Removal of Directors and Filling of Vacancies

Our Certificate of Incorporation provide that directors may be removed only for cause and only upon the affirmative vote of holders of not less than two-thirds (2/3) of the outstanding shares of capital stock then entitled to vote at an election of directors. Furthermore, at least forty-five (45) days prior to any annual or special meetings of stockholders at which it is proposed that any director be removed from office, written notice of such proposed removal, and the alleged grounds thereof shall be sent to the director whose removal will be considered at the meeting. Our Certificate of Incorporation and Bylaws provide that, subject to the rights, if any, of the holders of any series of Undesignated Preferred Stock to elect directors and to fill vacancies in the board of directors related thereto, any and all vacancies in the board of directors, however occurring, including, without limitation, by reason of an increase in the size of the board of directors, or the death, resignation, disqualification, or removal of a director, shall be filled solely and exclusively by the affirmative vote of a majority of the remaining directors then in office, even if less than a quorum of the board of directors, and not by the stockholders. Any director appointed in accordance with the preceding sentence shall hold office for the remainder of the full term for which the new directorship was created or the vacancy occurred and until such director’s successor shall have been duly elected and qualified or until his or her earlier resignation, death, or removal. The limitations on removal of directors and treatment of vacancies have the effect of making it more difficult for stockholders to change the composition of our board of directors.

No Written Consent of Stockholders

Our Certificate of Incorporation provides that any action required or permitted to be taken by the stockholders of the Company at any annual or special meetings of stockholders of the Company must be effected at a duly called annual or special meeting of stockholders and may not be taken or effected by a written consent of stockholders in lieu thereof. This limit may lengthen the amount of time required to take stockholder actions and would prevent the amendment of our Bylaws or removal of directors by our stockholders without holding a meeting of stockholders.

Special Meetings of Stockholders

Our Certificate of Incorporation and Bylaws provide that special meetings of stockholders may be called only by the board of directors acting pursuant to a resolution approved by the affirmative vote of a majority of the directors then in office, and special meetings of stockholders may not be called by any other person or persons.

Advance Notice Requirements

Our Bylaws establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, to be timely, notice must be received at our principal executive offices not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our Bylaws specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting.

Amendment to Certificate of Incorporation and Bylaws by Stockholders

As required by the General Corporation Law of Delaware, or the DGCL, any amendment of our Certificate of Incorporation must first be approved by a majority of our board of directors, and if required by law or our Certificate of Incorporation, must thereafter be approved by a majority of the outstanding shares entitled to vote on the amendment and a majority of the outstanding shares of each class entitled to vote thereon as a class. Our Bylaws may be amended by the affirmative vote of a majority of the directors then in office, subject to any limitations set forth in the Bylaws, and may also be amended at any annual meeting or special meeting called for such purpose by the affirmative vote of the majority of the outstanding shares entitled to vote on the amendment, in each case voting together as a single class.

Undesignated Preferred Stock

Our Certificate of Incorporation provides for 10,000,000 authorized shares of Undesignated Preferred Stock. The existence of authorized but unissued shares of preferred stock may enable our board of directors to discourage an attempt to obtain control of us by means of a merger, tender offer, proxy contest, or otherwise. For example, if in the due exercise of its fiduciary obligations, our board of directors were to determine that a takeover proposal is not in the best interests of our stockholders, our board of directors could cause shares of preferred stock to be issued without stockholder approval in one or more private offerings or other transactions that might dilute the voting or other rights of the proposed acquirer or insurgent stockholder or stockholder group. In this regard, our Certificate of Incorporation grants our board of directors broad power to establish the rights and preferences of authorized and unissued shares of preferred stock. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution to holders of shares of our Common Stock. The issuance may also adversely affect the rights and powers, including voting rights, of these holders and may have the effect of delaying, deterring or preventing a change in control of us.


Choice of Forum

Our Bylaws provide that unless the Company consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of the Company, (ii) 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, (iii) any action asserting a claim arising pursuant to any provision of the DGCL or the Certificate of Incorporation or the 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 (iv) any action asserting a claim governed by the internal affairs doctrine; provided, however, that this sentence will not apply to any causes of action arising under the Securities Act of 1933, as amended, or the Exchange Act, or to any claim for which the federal courts have exclusive jurisdiction. In addition, unless the Company consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall be the sole and exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act of 1933, as amended, the Exchange Act, or the respective rules and regulations promulgated thereunder, or the Federal Forum Provision. These forum provisions may impose additional costs on stockholders, may limit our stockholders’ ability to bring a claim in a forum they find favorable, and the designated courts may reach different judgements or results than other courts. In addition, there is uncertainty as to whether our Federal Forum Provision will be enforced, which may impose additional costs on us and our stockholders.

Section 203 of the Delaware General Corporation Law

Section 203 of the DGCL prohibits a Delaware corporation from engaging in any “business combination” with any “interested stockholder” for a period of three years after the date that such stockholder became an interested stockholder, unless the business combination is approved in a prescribed manner. Under Section 203, a business combination between a corporation and an interested stockholder is prohibited unless it satisfies one of the following conditions:

 

●106,875 Restricted Stock Units unvested at June 30, 2017;before the stockholder became interested, our board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;

●514,861 sharesupon consummation of common stock available for purchase under our Employee Stock Purchase Plan, as well as any automatic increasesthe transaction which resulted in the numberstockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding, shares of our commonowned by persons who are directors and also officers, and employee stock reserved for future issuance under this plan;plans, in some instances, but not the outstanding voting stock owned by the interested stockholder; or

●13,652,341 sharesat or after the time the stockholder became interested, the business combination was approved by our board of common stock issuable upon the exercise of outstanding warrantsdirectors and authorized at an exercise priceannual or special meeting of $1.47 per share, allthe stockholders by the affirmative vote of at least two-thirds of the outstanding voting stock which are currents exercisable;is not owned by the interested stockholder.

Section 203 defines a business combination to include:

●802,000 shares of common stock issuable upon exercise of outstanding Underwriter’s warrants at an exercise price of $11.25 per share, all of which are currently exercisable.any merger or consolidation involving the corporation and the interested stockholder;

●1,038,403 sharesany sale, transfer, lease, pledge, exchange, mortgage, or other disposition involving the interested stockholder of common stock issuable upon exercise10% or more of outstanding warrants associated with convertible debt at an exercise pricethe assets of $5.00; andthe corporation;


●An indeterminate numbersubject to exceptions, any transaction that results in the issuance or transfer by the corporation of sharesany stock of the corporation to the interested stockholder;

●subject to exceptions, any transaction involving the corporation that will be issued to directors as June 1 each year for their services onhas the Board and its committees.effect of increasing the proportionate share of the stock of any class or series of the corporation beneficially owned by the interested stockholder; or

●the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges, or other financial benefits provided by or through the corporation.

 

In general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation and any entity or person affiliated with or controlling or controlled by the entity or person.

Transfer Agent and Registrar

The transfer agent and registrar for our common stock is VStock Transfer LLP. The transfer agent and registrar’s address is 18 Lafayette Place, Woodmere, New York 11598, and its telephone number is (212) 828-8436.


PLAN OF DISTRIBUTION

 

We have entered into the sales agreementSales Agreement with the AgentsJefferies, under which we may issueoffer and sell up to $75,000,000 of our shares of common stock from time to time through the Agents,Jefferies acting as sales agent. Sales of our shares of our common stock, if any, under this prospectus mayand the accompanying prospectus will be made by any method that is deemed to be an “at the market offering” as defined in Rule 415 promulgated415(a)(4) under the Securities Act. We may instruct the Agents not to sell common stock if the sales cannot be effected at or above the price designated by us from time to time. We or the Agents may suspend the offering of common stock upon notice and subject to other conditions.

 

The Agents will offer our common stock subject to the terms and conditions of the sales agreement as agreed upon by us and the Agents. Each time we wish to issue and sell our shares of common stock under the sales agreement,Sales Agreement, we will notify an AgentJefferies of the number of shares to be issued, the time period duringdates on which such sales are requestedanticipated to be made, any limitation on the number of shares that mayto be sold in any one day and any minimum price below which sales may not be made and other sales parameters as we deem appropriate.made. Once we have so instructed such Agent,Jefferies, unless such AgentJefferies declines to accept the terms of thesuch notice, each AgentJefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such shares up to the amount specified on such terms. The obligations of each AgentJefferies under the sales agreementSales Agreement to sell our shares of common stock are subject to a number of conditions that we must meet.

As of the date of this prospectus, the settlement of sales of shares between us and Jefferies is generally anticipated to occur on the second trading day following the date on which the sale was made. Pursuant to recent amendments to Rule 15c6-1 of the Exchange Act, settlement for any securities offered under this prospectus on or after May 28, 2024 will generally occur on the first business day that is also a trading day following the date on which any sales were made in return for payment of the net proceeds to us. Sales of our shares of common stock as contemplated in this prospectus will be settled through the facilities of The Depository Trust Company or by such other means as we and Jefferies may agree upon. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.

 

We will pay each Agent commissions for its services in acting as agent in the sale of common stock atJefferies a commission rate equal toof up to 3.0% of the aggregate gross sales price per share sold. The Agents may effect sales to or through dealers, and such dealers mayproceeds we receive compensation in the formfrom each sale of discounts, concessions or commissions from an Agent and/or purchases ofour shares of common stock for whom they may act as agents or is whom they may sell as principal.stock. Because there is no minimum offering amount required as a condition to close this offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. WeIn addition, we have also agreed to advance the Agentreimburse Jefferies for certain specified expenses, including the fees and disbursements of its legal counsel, payable upon execution of the Sales Agreement, in an amount not to exceed $25,000.$75,000, in addition to certain ongoing disbursements of its legal counsel. We estimate that the total expenses for the offering, excluding any commissions and reimbursementsor expense reimbursement payable to the AgentJefferies under the terms of the sales agreement,Sales Agreement, will be approximately $150,000.$300,000. The remaining sale proceeds, after deducting any other transaction fees, will equal our net proceeds from the sale of such shares.

 


Settlement for salesJefferies will provide written confirmation to us before the open on the Nasdaq Capital Market on the day following each day on which our shares of common stock are sold under the Sales Agreement. Each confirmation will generally occurinclude the number of shares sold on that day, the second business day following the date on which anyaggregate gross proceeds of such sales are made, or on some other date that is agreed upon by us and the Agents in connection with a particular transaction, in return for payment of the net proceeds to us. There is no arrangement for funds to be received in an escrow, trust or similar arrangement.

 

In connection with the sale of theour shares of common stock on our behalf, each Agent mayJefferies will be deemed to be an “underwriter” within the meaning of the Securities Act, and the compensation of the Agents mayJefferies will be deemed to be underwriting commissions or discounts. We have agreed to provide indemnification and contribution to the Agentsindemnify Jefferies against certain civil liabilities, including liabilities under the Securities Act. We have also agreed to contribute to payments Jefferies may be required to make in respect of such liabilities.

 

The offering of our shares of common stock pursuant to the sales agreementSales Agreement will terminate upon the earlier of (i) the sale of all shares of our common stock subject to the sales agreement orSales Agreement and (ii) the termination of the sales agreementSales Agreement as providedpermitted therein. We and Jefferies may each terminate the Sales Agreement at any time upon ten trading days’ prior notice.

 

Each AgentThis summary of the material provisions of the Sales Agreement does not purport to be a complete statement of its terms and conditions. A copy of the Sales Agreement is filed as an exhibit to the registration statement of which this prospectus forms a part, and incorporated by reference in this prospectus.

Jefferies and its affiliates may in the future provide various investment banking, commercial banking, financial advisory and other financial services for us and our affiliates, for which services they may in the future receive customary fees. In the course of its business, Jefferies may actively trade our securities for its own account or for the accounts of customers, and, accordingly, Jefferies may at any time hold long or short positions in such securities.

 

A prospectus and the accompanying prospectus in electronic format may be made available on a website maintained by Jefferies, and Jefferies may distribute the prospectus and the accompanying prospectus electronically.


LEGAL MATTERS

 

Law OfficesThe validity of Aaron A. Grunfeld & Associates will pass upon certain legal matters relating to the issuance and sale of the securities offered hereby on behalf of Second Sight Medical Products, Inc. Mr. Grunfeld beneficially owns 73,855 shares of common stock warrants to purchase 34,007 shares of common stock, and options to purchase 70,000 shares of common stock. The Agents areoffered hereby will be passed upon for us by Goodwin Procter LLP, New York, New York. Jefferies LLC is being represented in connection with this offering by Duane Morris LLP.Paul Hastings LLP, New York, New York.

 

EXPERTS

 

The consolidated financial statements of Second SightVivani Medical, Products, Inc. and its subsidiaries as of December 31, 2023 and 2022, and for each of the two years in the period ended December 31, 2023 incorporated in this prospectus by reference from Second Sight Medical Products, Inc.’sto the Annual Report on Form 10-K for the year ended December 31, 2023, have been audited by Gumbiner Savett Inc.,so incorporated in reliance on the report of BPM LLP, an independent registered public accounting firm, as stated in their report, which is incorporated herein by reference. Such consolidated financial statements have been so incorporated in reliance upongiven on the reportauthority of suchsaid firm given upon their authority as experts in accountingauditing and auditing.accounting.

WHERE YOU CAN FIND MORE INFORMATION; INCORPORATION BY REFERENCEINFORMATION

 

Available Information

We file annual, quarterly and current reports, proxy statements and other information with the Securities and Exchange Commission, or SEC. InformationOur SEC filings are available to the public over the Internet at the SEC’s website at www.sec.gov. Copies of certain information filed by us with the SEC by us can be inspected and copiedare also available on our website at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549. You may also obtain copies of thiswww.vivani.com. The information by mail from the Public Reference Room of the SEC at prescribed rates. Further informationfound on the operation of the SEC’s Public Reference Room in Washington, D.C. can be obtained by calling the SEC at 1-800-SEC-0330. The SEC also maintains a web site that contains reports, proxy and information statements and other information about issuers, such as us, who file electronically with the SEC. The address of thator accessible through our website is http://www.sec.gov.


Our web site address is www.secondsight.com. The information on our web site, however, is not and should not be deemed to be, a part of, or incorporated by reference into, this prospectus.

 

This prospectus and any prospectus supplement areis part of a registration statement that we have filed with the SEC and do not contain all of theSEC. Certain information in the registration statement. The fullstatement has been omitted from this prospectus in accordance with the rules of the SEC. For more detail about us and any securities that may be offered by this prospectus, you may examine the registration statement may be obtained fromof which this prospectus forms a part, including its exhibits and schedules. Statements contained in this prospectus and the SECbase prospectus as to the contents of any contract or us, as provided below. You may inspect aother document are not necessarily complete, and in each instance we refer you to the copy of the contract or document filed as an exhibit to the registration statement, at the SEC’s Public Reference Roomeach such statement being qualified in Washington, D.C. or through the SEC’s website, as provided above.all respects by such reference.

 

Incorporation by ReferenceINCORPORATION OF CERTAIN INFORMATION BY REFERENCE

 

The SEC’s rules allowSEC allows us to “incorporateincorporate by reference”reference in this prospectus much of the information into this prospectus,we file with the SEC, which means that we can disclose important information to you by referring you to another document filed separately with the SEC.those publicly available documents. The information incorporatedthat we incorporate by reference in this prospectus is deemedconsidered to be part of this prospectus, and subsequent information thatprospectus. Because we fileare incorporating by reference future filings with the SEC, will automatically updatethis prospectus is continually updated and those future filings may modify or supersede some of the information included or incorporated in this prospectus. This means that information. Any statement containedyou must look at all of the SEC filings that we incorporate by reference to determine if any of the statements in athis prospectus or in any document previously filed document incorporated by reference will be deemed to behave been modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus modifies or replaces that statement.superseded.

 

We incorporate by reference our documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act, of 1934, as amended, which we refer to as the “Exchange Act” in this prospectus, between the date of this prospectus and the termination of the offering of the securities described in this prospectus. We are not, however, incorporating by reference any documents or portions thereof, whether specifically listed below or filed in the future, that are not deemed “filed” with the SEC, including our Compensation Committee report and performance graph or any information furnished pursuant to Items 2.02 or 7.01 of Form 8-K or related exhibits furnished pursuant to Item 9.01 of Form 8-K.

 

This prospectus and any accompanyingthe base prospectus supplement incorporate by reference the documents set forth below that have previously been filed with the SEC:

 

●Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on March 26, 2024;


●Current Reports on Form 8-K filed with the SEC on January 10, 2024, March 5, 2024 and March 6, 2024;

●The description of our common stock contained in Exhibit 4.5 to our Annual Report on Form 10-K for the fiscal year ended December 31, 2016 as2023, filed with the SEC on March 16, 2017,
●our Quarterly Report on Form 10-Q26, 2024, including any amendments or reports filed for the quarter ended March 31, 2017 as filed with the SEC on May 9, 2017, and Form 10-Q for the quarter ended June 30, 2017 as filed with SEC on August 7, 2017,
●our Periodic Reports on Form 8-K as filed with the SEC on January 6, 2017, February 27, 2017, March 6, 2017, March 10, 2017, April 10, 2017, April 20, 2017, June 8, 2017, June 26, 2017, July 6, 2017, July 10, 2017, July 14, 2017, July 18, 2017, July 26, 2017, July 28, 2017, August 31, 2017 and on October 5, 2017,

●our Proxy Statement as filed with the SEC on May 1, 2017, and

●Registration Statement on Form 8-A 12B/A filed with the SEC on November 17, 2014 and Form 8-A 12B filed with the SEC on March 24, 2017.purpose of updating such description.

 

All reports and other documents we subsequently file pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also beDocuments incorporated by reference intoare available from us without charge, excluding all exhibits unless specifically incorporated by reference as an exhibit to this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents.base prospectus.

 

YouProspective investors may request a free copy of any of theobtain documents incorporated by reference in this prospectus (other than exhibits, unless they are specifically incorporatedand the base prospectus at no cost by referencerequesting them in the documents) by writing or telephoningby telephone from us at the following address:our executive offices at:

 

Second SightVivani Medical, Products, Inc.

12744 San Fernando1350 S. Loop Road, Suite 400 

Sylmar, California 91342 Alameda, CA 94502

(818) 833-5000Attention: Investor Relations

(415) 506-8462


 

Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus and any accompanying prospectus supplement.


Up to $13,648,000 of Shares$75,000,000

(SECOND SIGHT LOGO)

 

Common Stock

 

PROSPECTUS

Jefferies

 

, 2024

 

 

FBR                                                                                      H.C. Wainwright & Co.

                    , 2017


 

 

 

PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

 

Item 14. Other Expenses of Issuance and Distribution.

Item 14.Other Expenses of Issuance and Distribution

 

The following table setsSet forth below is an estimate (except in the estimated costscase of the SEC registration fee) of the amount of fees and expenses other than the underwriting discounts and commissions, payable by the registrantto be incurred in connection with the offeringissuance and distribution of the offered securities, being registered. All the amounts shown are estimates, except for the SEC registration fee.other than underwriting discounts and commissions.

    
 

Amount
paid or

to be Paid 

 
SEC registration fee$12,450 
FINRA filing fee  *
Accounting fees and expenses  * 
Legal fees and expenses  * 
Trustee’s fees and expenses  * 
Transfer agent fees and expenses  *
Warrant agent fees and expenses  *
Printing and miscellaneous expenses  * 
    
Total$* 

 

     
SEC Registration fee $44,280 
FINRA filing fee $45,500 
Legal fees and expenses   *
Accounting fees and expenses   *
Printing expenses   *
Transfer agent and registrar fees   *
Trustee fees (including counsel fees)   *
Miscellaneous   *
Total   *
     

*These fees are calculated based uponand expenses depend on the securities offered and the number of issuances and the type of securities offered and accordingly cannot be estimated at this time.time and will be reflected in the applicable prospectus supplement.

Item 15.Indemnification of Directors and Officers

 

In accordance with Rule 412Section 145 of the Securities Act, any statement contained inDelaware General Corporation Law authorizes a document incorporated by reference herein shall be deemed modified or supersededcorporation’s board of directors to the extent thatgrant, and authorizes a statement contained herein or in anycourt to award, indemnity to officers, directors, and other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement.corporate agents.

 

Item 15. Indemnification of Directors and Officers.

As permitted by Section 317102 of the California Corporations Code,Delaware General Corporation Law, we have adopted provisions in our certificate of incorporation and bylaws that limit or eliminate the California Code, authorizespersonal liability of our directors for a corporation to indemnify, subject to certain exceptions, any person who was or isbreach of their fiduciary duty of care as a party or is threatened to be made a party to any proceeding (other than an action by or in the rightdirector. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to procurethem. Consequently, a judgment in its favor) by reasondirector will not be personally liable to us or our stockholders for monetary damages for breach of the fact that such person is or was an agent of the corporation,fiduciary duty as the term “agent” is defined in section 317(a) of the California Code, against expenses, judgments, fines, settlements and other amounts actually and reasonably incurred in connection with such proceeding if such person acted in good faith and in a manner such person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of such person was unlawful. A corporation is further authorized to indemnify, subject to certain exceptions, any person who was or is a party or is threatened to be made a party to any threatened, pending, or completed action by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was an agent of the corporation, against expenses actually and reasonably incurred by that person in connection with the defense or settlement of the action if the person acted in good faith, in a manner the person believed to be in the best interests of the corporation and its shareholders.director, except for liability for:

 


Section 204 of the California Code provides that a corporation’s articles of incorporation may not limit the liability of directors (i) for acts or omissions that involve intentional misconduct or a knowing and culpable violation of law, (ii) for acts or omissions that a director believes to be contrary to the best interests of the corporation or its shareholders or that involve the absence of good faith on the part of the director, (iii) for any transaction from which a director derived an improper personal benefit, (iv) for acts or omissions that show a reckless disregard for the director’s duty to the corporation or its shareholders in circumstances in which the director was aware, or should have been aware, in the ordinary course of performing a director’s duties, of a risk of a serious injury to the corporation or its shareholders, (v) for acts or omissions that constitute an unexcused pattern of inattention that amounts to an abdication of the director’s duty to the corporation or its shareholders, (vi) under Section 310 of the California Code (concerning transactions between corporations and directors or corporations having interrelated directors) or (vii) under Section 316 of the California Code (concerning directors’ liability for distributions, loans, and guarantees).

●any breach of the director’s duty of loyalty to us or our stockholders;
●any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
●any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or
●any transaction from which the director derived an improper personal benefit.

 

Section 204 further provides that a corporation’s articlesThese limitations of incorporation may not limit the liability of directors for any act or omission occurring prior to the date when the provision became effective or any act or omission as an officer, notwithstanding that the officer is also a director or that his or her actions, if negligent or improper, have been ratified by the directors. Further, Section 317 has no effect on claims arising under federal or state securities laws and doesdo not affect the availability of injunctionsequitable remedies such as injunctive relief or rescission. Our certificate of incorporation also authorizes us to indemnify our officers, directors and other equitable remedies available to a corporation’s shareholders for any violation of a director’s fiduciary duty to the corporation or its shareholders.

The Registrant’s Restated Articles of Incorporation provide for the elimination of liability for its directorsagents to the fullest extent permissiblepermitted under California law and authorize it to provide indemnification to directors, officers, employees or other agents through bylaw provisions, agreements with agents, vote of shareholders or disinterested directors or otherwise, in excess of the indemnification otherwiseDelaware law.

As permitted by Section 317145 of the California Code, subject only to the applicable limits with respect to actions for breach of duty to the Registrant and its shareholders.Delaware General Corporation Law, our bylaws provide that:

 

●we shall indemnify our employees and agents to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;

The Registrant’s Amended

●we may indemnify our employees and agents to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions;

●we shall advance expenses to our directors and officers and may advance expenses of our employees and agents in connection with a legal proceeding to the fullest extent permitted by the Delaware General Corporation Law, subject to limited exceptions; and

●the rights provided in our bylaws are not exclusive.

II-i

Our certificate of incorporation and Restated Bylawsour bylaws provide that it shall indemnify itsfor the indemnification provisions described above and elsewhere herein. We have entered into, and intend to continue to enter into, separate indemnification agreements with our directors and officers employeesthat may be broader than the specific indemnification provisions contained in the Delaware General Corporation Law. These indemnification agreements generally require us, among other things, to indemnify our officers and agentsdirectors against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arisingcertain liabilities that may arise by reason of their status or service as directors or officers, other than liabilities arising from willful misconduct. These indemnification agreements also generally require us to advance any expenses incurred by the fact that suchdirectors or officers as a result of any proceeding against them as to which they could be indemnified. These indemnification provisions and the indemnification agreements may be sufficiently broad to permit indemnification of our officers and directors for liabilities, including reimbursement of expenses incurred, arising under the Securities Act of 1933, as amended (the Securities Act).

We have purchased and currently intend to maintain insurance on behalf of each and every person is or was its agent. As included in the Registrant’s Amended and Restated Bylaws, a “director” or “officer” includes any person (a) who is or was a director or officer of the Registrant, (b) who iscompany against any loss arising from any claim asserted against him or was serving ather and incurred by him or her in any such capacity, subject to certain exclusions.

Any underwriting agreements that we may enter into will likely provide for the requestindemnification of the Registrant as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (c) who was a director or officer of a corporation which was a predecessor corporation of the Registrant or of another enterprise at the request of such predecessor corporation. The Registrant’s Amended and Restated Bylaws also contain provisions expressing the intent that these bylaws provide indemnity in excess of that expressly permitted by Section 317 of the California Code to indemnify each of its employees and agents (other thanus, our controlling persons, our directors and officers)certain of our officers by the underwriters against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with any proceeding, arising by reason ofcertain liabilities, including liabilities under the fact that such person is or was its agent. As included in the Registrant’s Amended and Restated Bylaws, an “employee” or “agent” (other than a director or officer), includes any person who (a) is or was an employee or agent of the Registrant, (b) is or was serving at the Registrant’s request as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (c) was an employee or agent of a corporation which was a predecessor corporation of the Registrant or of another enterprise at the request of such predecessor corporation.Securities Act.

 


Item 16.Exhibits

The Registrant’s Amended and Restated Bylaws further provide that it may advance expenses incurred in defending any proceeding for which indemnification is required or permitted, following authorization thereof by the board of directors, prior to the final disposition of the proceeding upon receipt of an undertaking by or on behalf of the indemnified party to repay that amount if it shall be determined ultimately that the indemnified person is not entitled to be indemnified as authorized by its Amended and Restated Bylaws. The indemnification provided for in the Registrant’s Amended and Restated Bylaws for acts, omissions or transactions while acting in the capacity of, or while serving as, a director or officer of the Registrant but not involving a breach of duty to the Registrant and its shareholders will not be deemed exclusive of any other rights those seeking indemnification may be entitled under any bylaw, agreement, vote of shareholders or disinterested directors, or otherwise, to the extent the additional rights to indemnification are authorized in its Restated Articles of Incorporation.

Exhibit No.Description
1.1*Form(s) of underwriting agreement(s).
1.2**Open Market Sale AgreementSM , dated April 22, 2024, between the Company and Jefferies LLC.
3.1Certificate of Incorporation of Vivani Medical, Inc., filed with the Secretary of State of Delaware and effective, July 6, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the SEC on July 10, 2023).
3.2Bylaws of Vivani Medical, Inc. (a Delaware Corporation) effective July 6, 2023 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed with the SEC on July 10, 2023).
4.1Specimen Common Stock Certificate (Incorporated by reference to Exhibit 4.1 to the Company’s  Annual Report on Form 10-K filed on March 26, 2024 (File No. 001-36747)).
4.2Description of Capital Stock (Incorporated by reference to Exhibit 4.5 to the Company’s Annual Report on Form 10-K filed on March 26, 2024 (File No. 001-36747)).
4.3**Form of indenture for senior debt securities and the related form of senior debt security.
4.4**Form of indenture for subordinated debt securities and the related form of subordinated debt security.
4.5*Form of Certificate of Designations.
4.6*Form of Warrant Agreement.
4.7*Form of Unit Certificate.
4.8*Form of Preferred Stock Certificate.
5.1**Opinion of Goodwin Procter LLP.
5.2**Opinion of Goodwin Procter LLP relating to sales agreement prospectus.

 

In addition, the Registrant has entered into indemnification agreements with each of its directors and officers, and maintains directors’ and officers’ liability insurance under which its directors and officers are insured against loss (as defined in the policy) as a result of certain claims brought against them in such capacities.

II-ii

 

Item 16. Exhibits

 

See the Exhibit Index on the page immediately following the signature page to this registration statement for a list of exhibits filed as part of this registration statement, which Exhibit Index is incorporated herein by reference.

23.1**Consent of BPM LLP, Independent Registered Public Accounting Firm
23.2**Consent of Goodwin Procter LLP (included in Exhibit 5.1 hereto).
24.1**Power of Attorney (included in the signature pages to this registration statement).
25.1†Form T-1 Statement of Eligibility of Trustee for Senior Indenture under the Trust Indenture Act of 1939.
25.2†Form T-1 Statement of Eligibility of Trustee for Subordinated Indenture under the Trust Indenture Act of 1939.
107**Filing Fee Table.

 

Item 17. Undertakings

*To be filed by amendment or as exhibit(s) to a Current Report of the Registrant on Form 8-K and incorporated herein by reference, as applicable.
**Filed herewith.
†To be filed pursuant to Section 305(b)(2) of the U.S. Trust Indenture Act of 1939, as applicable.

 

Item 17.Undertakings

The undersigned registrant hereby undertakes:

(1)  To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:

(a)The undersigned Registrant hereby undertakes:
(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)To include any prospectus required by Sectionsection 10(a)(3) of the Securities Act;
(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in thethis registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SECCommission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20%a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and

(iii)To include any material information with respect to the plan of distribution not previously disclosed in thethis registration statement or any material change to such information in thethis registration statement;

 

provided, however, that the undertakings set forth in paragraphs (1)subparagraphs (i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SECCommission by the registrantRegistrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in thethis registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.

 

(2)  That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(3)  To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

(4)  That, for the purpose of determining liability under the Securities Act to any purchaser:

(2)That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)That, for the purpose of determining liability under the Securities Act to any purchaser:
(i)Each prospectus filed by the registrantRegistrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and

II-iii

(ii)Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such   effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities:

 


(5)  That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, theThe undersigned registrant hereby undertakesRegistrant undertake that in a primary offering of securities of the undersigned registrantRegistrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrantRegistrant will be a sellersellers to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i)Any preliminary prospectus or prospectus of the undersigned registrantRegistrant relating to the offering required to be filed pursuant to Rule 424;
(ii)Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrantRegistrant or used or referred to by the undersigned registrant;
Registrant;
(iii)The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrantRegistrant or itstheir securities provided by or on behalf of the undersigned registrant;Registrant; and
(iv)Any other communication that is an offer in the offering made by the undersigned registrantRegistrant to the purchaser.
(6)The undersigned Registrant hereby further undertakes that, for the purposes of determining any liability under the Securities Act, each filing of the annual reports of the Registrant pursuant to Section 13(a) or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement, if any, shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7)The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under sub section (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
(8)That, for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective.
(9)That, for the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

��

(6)  That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

II-iv

 

(7)  That: (i) for purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained in the form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of the registration statement as of the time it was declared effective; and (ii) for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

(8)  To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture Act.


Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, described in Item 15 above or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.


 


II-v

SIGNATURES

 

Pursuant to the requirements of the Securities Act, of 1933, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statementregistration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Los Angeles,Alameda, State of California, on October 30, 2017.April 22, 2024.

 
SECOND SIGHTVIVANI MEDICAL, PRODUCTS, INC.
  
 By:

/s/ Will McGuire Adam Mendelsohn

 Name:Will McGuire Adam Mendelsohn
 Title:President and Chief Executive Officer

 


POWER OF ATTORNEY AND SIGNATURES

 

Each person whose signature appears below constitutes and appoints Will McGuireeach of Adam Mendelson and Thomas B. MillerBrigid Makes acting alone or together with another attorney-in-fact, as his or her true and lawful attorneys-in-factattorney-in-fact and agents, each acting alone,agent, with full powerspower of substitution and resubstitution, for him or hersuch person and in his or her name, place and stead, in any and all parties,capacities, to sign any andor all further amendments (including post-effective amendments) to this Registration Statement,registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each acting alone,of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-factattorney-in-fact and agents, each acting alone,agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall be governed by and construed with the laws of the State of California and applicable federal securities laws.

 

Pursuant to the requirements of the Securities Act, of 1933, this Registration Statementregistration statement has been signed by the following persons in the capacities and on the datesdated indicated.

 

Name 

Title

 

Date

     

/s/ Will McGuire 

Will McGuireAdam Mendelsohn		 President, Chief Executive Officer and Director  April 22, 2024
Adam Mendelsohn(Principal Executive Officer)October 30, 2017

/s/ Thomas B. Miller 

Chief Financial OfficerOctober 30 , 2017
Thomas B. Miller(Principal Financial and Accounting Officer)  
     

/s/ Robert J. Greenberg 

Brigid Makes		 Chairman of the Board of DirectorsOctober 30 , 2017
Robert J. Greenberg M.D., Ph.D.Chief Financial Officer  April 22, 2024
Brigid Makes(Principal Financial and Accounting Officer)  
     

 /s//s/ Gregg Williams

 DirectorChairman of the Board October 30, 2017 April 22, 2024
Gregg Williams    
     

/s/ William J. Link 

Aaron Mendelsohn		 Director October 30 , 2017
William J. Link

/s/ Aaron Mendelsohn 

DirectorOctober 30 , 2017 April 22, 2024
Aaron Mendelsohn    
     

/s/ Matthew Pfeffer 

Dean Baker		 Director October 30 , 2017 April 22, 2024
Matthew PfefferDean Baker
/s/ Alexandra LarsonDirector April 22, 2024
Alexandra Larson
/s/ Daniel BradburyDirector April 22, 2024
Daniel Bradbury    

 


II-vi

EXHIBIT INDEX

Exhibit 
No. 

Description
1.1 Form of Underwriting Agreement*
1.2At Market Issuance Sales Agreement, dated as of October 30, 2017
3.1***Restated Articles of Incorporation of Registrant (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
3.2***Amended and Restated By-laws, as amended (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
4.1***Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
4.2*Form of certificate representing preferred stock
4.3*Form of certificate of designations for preferred stock
4.4Form of Indenture relating to the issuance from time to time in one or more series of debentures, notes, bonds or other evidences of indebtedness
4.5*Form of Senior Debt Security
4.6*Form of Subordinated Debt Security
4.7*Form of Warrant
4.8*Form of Warrant Agreement
5.1Opinion of Law Offices of Aaron A. Grunfeld & Associates.
10.1***Form of Indemnification Agreement between Registrant and each of its directors and officers (incorporated by reference to Exhibit 10.1 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.2***+2003 Equity Incentive Plan (incorporated by reference to Exhibit 10.2 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.3***+2003 Form of Employee Option Agreement (incorporated by reference to Exhibit 10.3 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.4***+2011 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.5***+2011 Form of Employee Option Agreement (incorporated by reference to Exhibit 10.5 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.7***+2014 Executive Officer Option Agreement (incorporated by reference to Exhibit 10.7 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.8***Form of Convertible Promissory Note (incorporated by reference to Exhibit 10.8 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).


10.9***Form of Warrant, as amended (incorporated by reference to Exhibit 10.9 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.10***Standard Multi-Tenant Office Lease – Net, dated April 15, 2014, between Registrant and Mann Biomedical Park LLC (incorporated by reference to Exhibit 10.10 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.11***Exclusive License Agreement between Registrant and John Hopkins University and Duke University (incorporated by reference to Exhibit 10.11 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.12***Cost Reimbursement Consortium Research Agreement between Registrant and Doheny Eye Institute (incorporated by reference to Exhibit 10.12 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.13***+Offer Letter to Thomas Miller dated May 21, 2014 (incorporated by reference to Exhibit 10.15 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.14***Joint Research and Development Agreement between The Johns Hopkins University Applied Physics Laboratory and Registrant (incorporated by reference to Exhibit 10.17 to the Company’s Registration Statement on Form S-1 filed on August 12, 2014, File No. 333-198073, as amended).
10.15***+Employment Agreement dated June 19, 2015 between Second Sight Medical Products, Inc. and Will McGuire (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 25, 2015).
10.16***+Second Sight Medical Products, Inc. Equity Incentive Plan – Restricted Stock Units (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 4, 2015).
10.17***+Second Sight Medical Products, Inc. Restricted Stock Unit Award Agreement (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 4, 2015).
10.18***Form of Warrant Agreement (incorporated by reference to Exhibit 4.4 to the Company’s registration statement on Form S-1, filed on January 26, 2017, File No. 333-215463, as amended)
12.1Statement Re Computation of Ratio of Earnings to Fixed charges
21.1***List of Subsidiaries (incorporated by reference to Exhibit 21.1 to the Company’s Annual Report on Form 10-K filed on March 17, 2015).
23.1Consent of Independent Registered Public Accounting Firm Gumbiner Savett Inc.
23.2Consent of Law Offices of Aaron A. Grunfeld & Associates, included in Exhibit 5.1 hereto.
24.1Power of attorney (included on signature page).
25*Form of Statement of Eligibility of Trustee under the Trust Indenture Act of 1939, as amended**

* To be filed, if necessary, with a Current Report on Form 8-K or a Post-Effective Amendment to the registration statement
** To be filed, pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939.

 *** Previously filed

 + Management contract or compensatory plan or arrangement