Item 1.01Entry into a Material Definite Agreement.
Memorandum of Understanding
On January 5, 2021, Second Sight Medical Products, Inc., a California
corporation ("Second Sight") entered into a Memorandum of Understanding with
Pixium Vision, a société anonyme having its registered office at 74, rue du
Faubourg Saint-Antoine, 75012 Paris, France ("Pixium").
Pursuant to the terms of the Memorandum of Understanding, which sets forth the
framework of the principal actions to be taken, (i) Second Sight will raise
additional working capital of at least $25,000,000 in a private placement of
equity securities of Second Sight to accredited investors (the "Fund Raising");
(ii) Pixium will contribute to Second Sight certain assets in exchange for newly
issued common stock of Second Sight (the "Contribution"); and (iii) Second Sight
will transfer its Orion Assets to a newly formed subsidiary ("SpinCo"), the
share capital of which would be partially spun-off to the shareholders of Second
Sight; (the "Spin-Off" and, together with the Fund Raising and the Contribution,
the "Business Combination").
In connection with the Contribution contemplated by the Memorandum of
Understanding, Second Sight and Pixium will enter into a Contribution Agreement.
Pursuant to the terms of the Contribution Agreement, subject to certain closing
conditions set forth therein, Pixium will contribute to Second Sight all the
assets and liabilities in relation to its activity specialized in
neuromodulation technology used in the treatment of blindness (the "Pixium
Contribution"). In consideration of the Pixium Contribution, Second Sight shall
issue to Pixium 34,876,043 new shares (the "Share Consideration"), representing
approximately 60% of the share capital and voting rights of Second Sight. The
Pixium Contribution shall be subject to the prior irrevocable completion of the
Fund Raising by Second Sight.
The Memorandum of Understanding further contemplates that Second Sight and
SpinCo will enter into a Separation and Distribution Agreement and an Exclusive
License Agreement.
Pursuant to the terms of the Separation and Distribution Agreement, Second Sight
will transfer to SpinCo certain intellectual property related to Second Sight's
Orion Visual Cortical Prosthesis System and other tangible and non-tangible
assets, and SpinCo will (i) assume from Second Sight certain liabilities arising
out of the operations of SpinCo's business and (ii) distribute by way of a stock
dividend to holders of shares of Second Sight's common stock, on a pro rata
basis, sixty percent (60%) of all of the issued and outstanding shares of common
stock of SpinCo.
Second Sight intends to file with the U.S. Securities and Exchange Commission a
Form 10 for the purpose of registering shares of common stock of SpinCo for
trading pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
The contribution of assets and liabilities by Second Sight to SpinCo is intended
to qualify as tax-free exchange governed by Section 351 of the U.S. Internal
Revenue Code of 1986, as amended (the "Code"), and the distribution of the
SpinCo shares is intended to be a taxable distribution of property governed by
Sections 301 and 311(b) of the Code.
Pursuant to the terms of the Exclusive License Agreement between Second Sight
and SpinCo, Second Sight will grant to Spinco an exclusive worldwide,
royalty-free license, with the right to sublicense, under certain patents and
technology ("Licensed IP") related to the Orion Visual Cortical Prosthesis
System (the "Orion System"), to research, develop, make, have made, use, sell,
offer for sale, have sold and import products (including, without limitation,
the Orion System) in the field of diagnosing, preventing, treating, and/or
curing diseases and conditions in humans and animals by means of an implant that
interfaces with the brain, including related devices, software, and related
components (the "Field"). Under the agreement, SpinCo has granted Second Sight
an exclusive right of first refusal to commercialize any product in the Field
with respect to each bona fide third party offer to acquire the right to
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing
On January 4, 2021, Second Sight received a letter from The Nasdaq Stock Market
LLC ("Nasdaq") stating that since Second Sight has not yet held an annual
meeting of shareholders within twelve months of the end of Second Sight's fiscal
year end, it no longer complies with Nasdaq's Listing Rules (the "Listing
Rules") for continued listing. The letter further states that under the Listing
Rules Second Sight has 45 calendar days to submit a plan to regain compliance
and if Nasdaq accepts such plan, it can grant an exception of up to 180 calendar
days from the fiscal year end, or until June 29, 2021, to regain compliance.
Second Sight intends to submit a plan to Nasdaq to regain compliance no later
than February 18, 2021.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure included in Item 1.01 of this Current Report on Form 8-K is
incorporated into this Item 3.02 by reference. The shares of common stock of
Second Sight to be issued to Pixium pursuant to the Memorandum of Understanding
will be issued pursuant to exemptions from registration provided by Section
4(a)(2) and/or the private offering safe harbor provisions of Regulation D of
the Securities Act of 1933, as amended (the "Securities Act"), and/or Regulation
S of the Securities Act, based on the following factors: (i) the number of
offerees or purchasers, as applicable, (ii) the absence of general solicitation,
(iii) investment representations obtained from Pixium, including with respect to
its status as an accredited investors or not a "U.S. person," (iv) the provision
of appropriate disclosure, and (v) the placement of restrictive legends on the
certificates or book-entry notations reflecting the securities.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information disclosed under the section titled "Directors and Officers"
under Item 1.01 above is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure
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Attached as Exhibit 99.2 to this Current Report on Form 8-K, and incorporated
into this Item 7.01 by reference, is an updated Investor Presentation being used
in connection with the proposed business combination.
The information in this Item 7.01 (including Exhibit 99.2) is being furnished
solely to satisfy the requirements of Regulation FD and shall not be deemed to
be "filed" for the purposes of Section 18 of the Exchange Act or otherwise
subject to the liabilities of that Section, nor shall it be deemed to be
incorporated by reference in any filing under the Securities Act or the Exchange
Act.
Item 8.01. Other Events.
On January 6, 2021, Second Sight issued a joint press release with Pixium
announcing that the companies have entered into the Memorandum of
Understanding. A copy of the joint press release is attached hereto as Exhibit
99.1 and is incorporated by reference herein. The information contained on the
websites referenced in the press release is not incorporated herein.
Item 9.01Financial Statements and Exhibits.
(d)Exhibits
See the Exhibit Index attached hereto.
Additional Information and Where to Find It
This communication does not constitute an offer to sell or the solicitation of
an offer to buy the securities of Second Sight or the solicitation of any vote
or approval. This communication is being made in respect of the proposed
business combination involving Second Sight and Pixium. The proposed business
combination will be submitted to the shareholders of Second Sight for their
consideration. In connection therewith, Second Sight intends to file relevant
materials with the Securities and Exchange Commission (the "SEC"), including a
definitive proxy statement. However, such documents are not currently available.
The definitive proxy statement will be mailed to the shareholders of Second
Sight. BEFORE MAKING ANY VOTING OR ANY INVESTMENT DECISION, INVESTORS AND
SECURITY HOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT REGARDING THE
PROPOSED TRANSACTION AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH
THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE, BECAUSE THEY
WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and
security holders may obtain free copies of the definitive proxy statement, any
amendments or supplements thereto and other documents containing important
information about Second Sight, once such documents are filed with the SEC,
through the website maintained by the SEC at www.sec.gov. Copies of the
documents filed with the SEC by Second Sight will be available free of charge on
Second Sight's website at https://secondsight.com/ under the heading "SEC
Filings" in the "Investors" portion of Second Sight's website. Shareholders of
Second Sight may also obtain a free copy of the definitive proxy statement and
any filings with the SEC that are incorporated by reference in the definitive
proxy statement by contacting Second Sight at (818) 833-5000.
Participants in the Solicitation
Second Sight and its directors and executive officers may be deemed participants
under SEC rules in the solicitation of proxies from the Second Sight's
shareholders in favor of the proposed transaction. Information about the Second
Sight's directors and executive officers and their interests in the
solicitation, which may, in some cases, differ from those of the Second Sight's
shareholders generally, will be included in the proxy statement to be filed with
the SEC in connection with the proposed transaction. Additional information
about these directors and executive officers is available in Second Sight's
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2019 which
was filed with the SEC on April 28, 2020. Additional information regarding the
interests of such individuals in the proposed transaction will be included in
the proxy statement relating to the proposed transaction when it is filed with
the SEC. To the extent that holdings of Second Sight's securities by Second
Sight's directors and executive officers
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have changed since the amounts printed in the latest Form 10-K, such changes
have been or will be reflected on Statements of Change in Ownership on Form 4
filed with the SEC.
Forward-Looking Statements:
This Current Report on Form 8-K includes "forward-looking statements" within the
meaning of the "safe harbor" provisions of the Private Securities Litigation
Reform Act of 1995. The actual business results may differ from expectations,
estimates and projections and consequently, readers should not rely on these
forward-looking statements as predictions of future events. Words such as
"expect," "estimate," "project," "budget," "forecast," "anticipate," "intend,"
"propose," "plan," "contemplate," "may," "will," "shall," "would," "could,"
"should," "believes," "predicts," "potential," "continue," "positioned," "goal,"
"conditional" and similar expressions are intended to identify such
forward-looking statements. These forward-looking statements include, without
limitation, the intention to pursue the Business Combination and to announce
information regarding the Business Combination.
These forward-looking statements involve significant risks and uncertainties
that could cause the actual results to differ materially from the expected
results. Most of these factors are outside of Second Sight's control and are
difficult to predict. Factors that may cause such differences include, but are
not limited to: (1) the occurrence of any event, change or other circumstances
that could give rise to the termination of the Agreements, (2) the outcome of
any legal proceedings that may be instituted against Second Sight and other
transaction parties following the announcement of the Business Combination; (3)
the inability to complete the proposed Business Combination, including due to
failure to obtain approval of the stockholders of Second Sight or Pixium, the
closing of the Fund Raising, or other conditions to closing in the Agreements;
(4) the occurrence of any event, change or other circumstance that could
otherwise cause the Business Combination to fail to close; (5) the receipt of an
unsolicited offer from another party for an alternative business transaction
that could interfere with the proposed Business Combination; (6) the inability
to obtain the listing of the shares of common stock of the post-acquisition
company on the Nasdaq Stock Market following the business combination; (7) the
risk of disruption to current plans and operations as a result of the
announcement and consummation of the proposed Business Combination; (8) costs
related to the proposed Business Combination; (9) changes in applicable laws or
regulations; (10) the possibility that Second Sight may be adversely affected by
other economic, business, and/or competitive factors; (11) the uncertainties
regarding the impact of COVID-19 on the businesses of Second Sight and Pixium
and the completion of the Business Combination; (12) risks and uncertainties
described in or implied by the Risk Factors and in Management's Discussion and
Analysis of Financial Condition and Results of Operations sections of Second
Sight's Annual Report on Form 10-K, filed on March 19, 2020, Form 10K/A filed
April 28, 2020, and Forms 10-Q filed June 26, 2020, August 13, 2020, and
November 12, 2020, and other reports filed from time to time with the Securities
and Exchange Commission; and (13) other risks and uncertainties indicated from
time to time in the proxy statement relating to the proposed Business
Combination, including those under "Risk Factors" therein. Second Sight cautions
that the foregoing list of factors is not exhaustive. Second Sight cautions
readers not to place undue reliance upon any forward-looking statements, which
speak only as of the date made. Second Sight does not undertake or accept any
obligation or undertaking to release publicly any updates or revisions to any
forward-looking statements to reflect any change in its expectations or any
change in events, conditions or circumstances on which any such statement is
based.
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