Form S-8 - Securities to be offered to employees in employee benefit plans
March 08 2024 - 5:23PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on March 8, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S‑8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________
ALIMERA SCIENCES, INC.
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of incorporation or organization)
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20-0028718
(IRS Employer
Identification No.)
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6310 Town Square, Suite 400
Alpharetta, GA 30005
(Address of principal executive offices) (Zip Code)
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ALIMERA SCIENCES, INC. 2010 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
___________________
Richard S. Eiswirth, Jr.
President and Chief Executive Officer
6310 Town Square, Suite 400
Alpharetta, GA 30005
(Name and address of agent for service)
(678) 990-5740
(Telephone number, including area code, of agent for service)
Copies to:
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Andrew P. Gilbert
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Christopher S. Visick
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DLA Piper LLP (US)
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Vice President and General Counsel
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51 John F. Kennedy Parkway, Suite 120
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6310 Town Square, Suite 400
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Short Hills, NJ 07078
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Alpharetta, GA 30005
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(973) 520-2550
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(678) 990-5740
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___________________
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☐
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Accelerated filer ☐
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Non-accelerated filer ☒
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Smaller reporting company ☒
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Emerging Growth Company ☐
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If 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 revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act
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☐
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PART I
EXPLANATORY NOTE
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement is being filed for the purpose of increasing the number of securities of the same class as other securities for which Registration Statements of the Registrant on Form S-8 relating to the Alimera Sciences, Inc. 2010 Employee Stock Purchase Plan are effective.
Except as set forth below, pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements on Form S-8 relating to the Alimera Sciences, Inc. 2010 Employee Stock Purchase Plan filed with the SEC on May 14, 2010 (File No. 333-166822), March 25, 2011 (File No. 333-173095), April 4, 2012 (File No. 333-180567), March 28, 2013 (File No. 333-187600), March 7, 2014 (File No. 333-194381), January 20, 2015 (File No. 333-201606), January 19, 2016 (File No. 333-209035), January 6, 2017 (File No. 333-215451), January 11, 2018, as amended by Post-Effective Amendment No. 1 on January 12, 2018 (File No. 333-222508), January 16, 2019 (File No. 333-229280), November 2, 2020 (File No. 333-249811), October 29, 2021 (File No. 333-260617), March 23, 2022 (File No. 333-263787) and April 28, 2023 (File No. 333-271519) and the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2023, which includes audited financial statements for the Registrant’s latest fiscal year, filed with the Commission on March 8, 2024.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8.Exhibits.
The exhibits to this Registration Statement are listed below:
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Exhibit Number
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Exhibit Description
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4.1
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Restated Certificate of Incorporation of Registrant, as amended on various dates (filed as Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, as filed March 2, 2020, and incorporated herein by reference)
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4.2
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Certificate of Elimination of Series B Convertible Preferred Stock (filed as Exhibit 3.1 to the Registrant’s Form 8-K, as filed August 15, 2023, and incorporated herein by reference)
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4.3
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Certificate of Elimination of Series A Convertible Preferred Stock (filed as Exhibit 3.2 to the Registrant’s Form 8-K, as filed March 27, 2023, and incorporated herein by reference)
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4.4
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Certificate of Elimination of Series C Convertible Preferred Stock (filed as Exhibit 3.3 to the Registrant’s Form 8-K, as filed March 27, 2023, and incorporated herein by reference)
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4.5
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Amended and Restated Bylaws of the Registrant, as amended (filed as Exhibit 3.2 to the Registrant’s Annual Report on Form 10-K for the year ended December 31, 2019, as filed March 2, 2020, and incorporated herein by reference)
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5.1*
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Opinion and consent of DLA Piper LLP (US)
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23.1*
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Consent of Grant Thornton LLP, Independent Registered Public Accounting Firm
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23.2*
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Consent of DLA Piper LLP (US) (included in Exhibit 5.1)
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24.1*
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Power of Attorney (included on the signature page of this Registration Statement)
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99.1
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2010 Employee Stock Purchase Plan (filed as Exhibit 10.10 to Amendment No. 4 to the Registrant’s Registration Statement on Form S-1 (SEC File No. 333-162782), as filed April 6, 2010, and incorporated herein by reference)
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99.2
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Amendment No. 1 to 2010 Employee Stock Purchase Plan (filed as Exhibit 10.7.A to the Registrant’s Annual Report on Form 10-K, as filed March 13, 2015, and incorporated herein by reference)
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99.3
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Amendment No. 2 to 2010 Employee Stock Purchase Plan (filed as Exhibit 99.3 to the Registrant’s Registration Statement on Form S-8, as filed November 2, 2020, and incorporated herein by reference)
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107*
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Filing Fee Table
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* Filed herewith.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Alpharetta, State of Georgia on this 8th day of March, 2024.
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ALIMERA SCIENCES, INC.
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By:
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/s/ Richard S. Eiswirth, Jr.
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Richard S. Eiswirth, Jr.
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President and Chief Executive Officer
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POWER OF ATTORNEY
The undersigned officers and directors of Alimera Sciences, Inc., a Delaware corporation, do hereby constitute and appoint Richard S. Eiswirth, Jr., Elliot Maltz, and Christopher S. Visick, and any of them, the lawful attorneys-in-fact and agents with full power and authority to do any and all acts and things and to execute any and all instruments which said attorneys and agents, and any of them, determine may be necessary or advisable or required to enable said corporation to comply with the Securities Act of 1933, as amended, and any rules or regulations or requirements of the Securities and Exchange Commission in connection with this Registration Statement. Without limiting the generality of the foregoing power and authority, the powers granted include the power and authority to sign the names of the undersigned officers and directors in the capacities indicated below to this Registration Statement, to any and all amendments, both pre-effective and post-effective, and supplements to this Registration Statement, and to any and all instruments or documents filed as part of or in conjunction with this Registration Statement or amendments or supplements thereof, and each of the undersigned hereby ratifies and confirms all that said attorneys and agents, or either one of them, shall do or cause to be done by virtue hereof. This Power of Attorney may be signed in several counterparts.
IN WITNESS WHEREOF, each of the undersigned has executed this Power of Attorney as of the date indicated.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Richard S. Eiswirth, Jr.
Richard S. Eiswirth, Jr.
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President, Chief Executive Officer and Director (Principal Executive Officer)
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March 8, 2024
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/s/ Elliot Maltz
Elliot Maltz
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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March 8, 2024
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/s/ Ross DeMont
Ross DeMont
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Director
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March 8, 2024
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/s/ Michael Kaseta
Michael Kaseta
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Director
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March 8, 2024
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/s/ Adam Morgan
Adam Morgan
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Director
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March 8, 2024
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/s/ Erin Parsons
Erin Parsons
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Director
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March 8, 2024
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/s/ Margaret Pax
Margaret Pax
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Director
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March 8, 2024
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/s/ Peter J. Pizzo, III
Peter J. Pizzo, III
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Director
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March 8, 2024
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/s/ John Snisarenko
John Snisarenko
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Director
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March 8, 2024
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DLA Piper LLP (US)
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078
www.dlapiper.com
T: 973-520-2550
F: 973-520-2551
Attorney Responsible for Short Hills Office:
Emilio Ragosa
March 8, 2024
Alimera Sciences, Inc.
6310 Town Square, Suite 400
Alpharetta, GA 30005
Re:Alimera Sciences, Inc. - Registration Statement on Form S-8
Dear Ladies and Gentlemen:
We have acted as counsel to Alimera Sciences, Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”). The Registration Statement relates to the registration of an aggregate of 25,966 shares (the “Shares”) of common stock, $0.01 par value per share (the “Common Stock”), of the Company, that are issuable by the Company upon the exercise of purchase rights to acquire shares of Common Stock pursuant to the Alimera Sciences, Inc. 2010 Employee Stock Purchase Plan (the “Plan”), as referenced in the Registration Statement.
In connection with this opinion letter, we have examined the Registration Statement and originals, or copies certified or otherwise identified to our satisfaction, of the Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company and such other documents, records and other instruments as we have deemed appropriate for purposes of the opinion set forth herein.
We have assumed the genuineness of all signatures, the legal capacity of all natural persons, the authenticity of the documents submitted to us as originals, the conformity with the originals of all documents submitted to us as certified, facsimile or photostatic copies and the authenticity of the originals of all documents submitted to us as copies.
Based upon the foregoing, we are of the opinion that the Shares have been duly authorized and, when and to the extent issued in accordance with the terms of the Plan, the Shares will be validly issued, fully paid and nonassessable.
The opinion expressed herein is limited to the Delaware General Corporation Law.
We hereby consent to the use of this opinion as Exhibit 5.1 to the Registration Statement. In giving such consent, we do not hereby admit that we are acting within the category of persons whose consent is required under Section 7 of the Securities Act or the rules or regulations of the U.S. Securities and Exchange Commission thereunder.
Very truly yours,
/s/ DLA Piper LLP (US)
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated March 8, 2024, with respect to the consolidated financial statements of Alimera Sciences, Inc., included in the Annual Report on Form 10-K for the year ended December 31, 2023, which is incorporated by reference in this Registration Statement. We consent to the incorporation by reference of the aforementioned report in this Registration Statement.
/s/ GRANT THORNTON LLP
Atlanta, Georgia
March 8, 2024
Calculation of Filing Fee Tables
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ALIMERA SCIENCES, INC.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
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Security Type
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Security Class Title
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Fee Calculation Rule
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Amount Registered(1)
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Proposed Maximum Offering Price Per Unit
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Maximum Aggregate Offering Price
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Fee Rate
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Amount of Registration Fee
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Equity
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Common stock, $0.01 par value per share
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457(c) and 457(h)(2)
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25,966(3)
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$3.97(2)
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$103,085.02
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$0.00014760
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$15.22
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Total Offering Amounts
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$103,085.02
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$15.22
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Total Fee Offsets(4)
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-
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Net Fee Due
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$15.22
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock, $0.01 par value per share (“Common Stock”), of Alimera Sciences, Inc. (the “Registrant”) that become issuable under the Alimera Sciences, Inc. 2010 Employee Stock Purchase Plan (the “2010 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration which results in an increase in the number of the outstanding shares of Common Stock.
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(2)
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Estimated in accordance with Rules 457(c) and 457(h) under the Securities Act solely for the purpose of calculating the registration fee on the basis of $3.97 per share, which is the average of the high and low prices of the Registrant’s Common Stock on March 7, 2024, as reported on the Nasdaq Global Market.
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(3)
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Represents 25,966 shares of Common Stock reserved for issuance pursuant to the 2010 ESPP that were automatically added to the shares of Common Stock authorized for issuance under the 2010 ESPP on January 1, 2024 pursuant to an “evergreen” provision contained in the 2010 ESPP. Under that provision, on January 1 of each year from January 1, 2011 through and including January 1, 2030, the aggregate number of shares of Common Stock available for purchase during the life of the 2010 ESPP automatically increased by the number of shares of Common Stock necessary to cause the number of shares of Common Stock then available for purchase to be restored to 32,961 shares of Common Stock (which amount takes into account the Company’s one-for-15 reverse stock split that became effective on November 14, 2019).
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(4)
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The Registrant does not have any fee offsets.
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