As filed with the Securities and Exchange Commission on January 29, 2015
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
THE SECURITIES ACT OF 1933
(Exact Name of Registrant as Specified in its Charter)
|(State or Other Jurisdiction of
Incorporation or Organization)
120/121 Baggot Street Lower
Dublin 2 Ireland
(Address of Principal Executive Offices)
PRESBIA INCENTIVE PLAN
(Full Title of the Plan)
120/121 Baggot Street Lower
Dublin 2 Ireland
(Name and Address Including Zip Code, of Agent For Service)
+353 (1) 659 9446
Telephone Number, Including Area Code
Peter H. Ehrenberg
David L. Goret
Lowenstein Sandler LLP
1251 Avenue of the Americas
New York, New York 10020
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer or a smaller reporting company. See definitions of large accelerated filer, accelerated filer, and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
|Large accelerated filer||¨||Accelerated filer||¨|
|Non-accelerated filer||x (Do not check if a smaller reporting company)||Smaller Reporting Company||¨|
CALCULATION OF REGISTRATION FEE
|Title of Securities
to be Registered
Ordinary shares, $0.001 par value per share
|(1)||Covers 1,800,000 ordinary shares issuable under the Presbia Incentive Plan (the Plan), and, pursuant to Rule 416(c) under the Securities Act of 1933, as amended, an indeterminable number of ordinary shares issuable under the Plan, as these amounts may be adjusted as a result of stock splits, stock dividends, antidilution provisions, and similar transactions.|
|(2)||Pursuant to Rule 457(c) and Rule 457(h) under the Securities Act of 1933, as amended, the proposed maximum offering price per share and the proposed maximum aggregate offering price are estimated for the purpose of calculating the amount of the registration fee and are based on the price per share ($10.00) of the ordinary shares in the Registrants initial public offering pursuant to its Registration Statement on Form S-1 (File No. 333-194713) filed with the Securities and Exchange Commission.|
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
|Item 1.||Plan Information.|
The documents containing the information specified in this Part I will be delivered to the participants in the Presbia Incentive Plan (the Plan) covered by this Registration Statement as required by Rule 428(b)(1) of the Securities Act of 1933, as amended (the Securities Act). Such documents are not required to be filed with the Securities and Exchange Commission (the Commission) as part of this Registration Statement.
|Item 2.||Registrant Information and Employee Plan Annual Information.|
The documents containing the information specified in this Part I will be delivered to the participants in the Plan covered by this Registration Statement as required by Rule 428(b)(1) of the Securities Act. Such documents are not required to be filed with the Commission as part of this Registration Statement.
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
|Item 3.||Incorporation of Documents by Reference.|
The following documents, which have been filed by Presbia PLC (the Company) with the Commission, are hereby incorporated by reference in this Registration Statement:
|||The Companys Prospectus, dated January 28, 2015, filed with the Commission pursuant to Rule 424(b) of the Securities Act (Registration Statement No. 333-194713), on January 29, 2015 and which includes audited financial statements for the Companys fiscal year ended December 31, 2013; and|
|||The description of the Companys ordinary shares contained in its Registration Statement on Form 8-A filed with the Commission on January 28, 2015 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act), including any amendment or report updating such description.|
All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
|Item 4.||Description of Securities.|
|Item 5.||Interests of Named Experts and Counsel.|
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|Item 6.||Indemnification of Directors and Officers.|
To the fullest extent permitted by Irish law, the Companys articles of association confer an indemnity on its directors and officers. However, this indemnity is limited by the Irish Companies Acts, which prescribe that an advance commitment to indemnify only permits a company to pay the costs or discharge the liability of a director or corporate secretary where judgment is given in favor of the director or corporate secretary in any civil or criminal action in respect of such costs or liability, or where an Irish court grants relief because the director or corporate secretary acted honestly and reasonably and ought fairly to be excused. Any provision whereby an Irish company seeks to commit in advance to indemnify its directors or corporate secretary over and above the limitations imposed by the Irish Companies Acts will be void under Irish law, whether contained in its articles of association or any contract between the company and the director or corporate secretary. This restriction does not apply to the Companys executives who are not directors, the corporate secretary or other persons who would be considered officers within the meaning of that term under the Irish Companies Acts.
The Companys articles of association also contain indemnification and expense advancement provisions for persons who are not directors or the Companys corporate secretary.
The Company is permitted under its articles of association and the Irish Companies Acts to purchase directors and officers liability insurance, as well as other types of insurance, for its directors, officers, employees and agents.
The Company has entered into agreements to indemnify its executive officers and directors to the maximum extent permitted under Irish law.
Additionally, the Companys wholly-owned subsidiary, Presbia USA, Inc., is incorporated under the laws of the State of Delaware. All of the Companys executive officers and directors also serve as a director and/or officer of its Presbia USA, Inc. subsidiary. Section 145 of the Delaware General Corporation Law provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee or agent of such judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, or are threatened to be made, a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporations best interests except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred.
The Companys wholly-owned subsidiary, Presbia USA, Inc., has entered into agreements to indemnify the Companys executive officers and directors to the maximum extent allowed under Delaware law. These agreements will, among other things, indemnify the Companys executive officers and directors for certain expenses (including attorneys fees), judgments, fines and settlement amounts reasonably incurred by such person in any action or proceeding, including any action by or in our right, on account of any services undertaken by such person on behalf of the company or that persons status as an executive officer or director.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, the Company has been informed that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
|Item 7.||Exemption from Registration Claimed.|
For a list of exhibits, see the Exhibit Index in this Registration Statement, which is incorporated into this Item by reference.
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Item 9. Undertakings.
(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 section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% 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 the registration statement or any material change to such information in the registration statement;
Provided, however, that Paragraphs (a)(1)(i) and (a)(1)(ii) of this section shall not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m or 78o(d)) that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plans 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of such issue.
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Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Irvine, State of California, on this 29th day of January, 2015.
|By:||/s/ Ralph Thurman|
POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Ralph Thurman, Todd Cooper, Zohar Loshitzer and Richard Fogarty, and each of them, his attorney-in-fact, with full power of substitution for him in any and all capacities, to sign any amendments to this Registration Statement, including any and all pre-effective and post-effective amendments and to file such amendments thereto, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that said attorneys-in-fact, or their substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
President, Chief Executive Officer and Director
(Principal Executive Officer)
|January 29, 2015|
Chief Accounting Officer and Vice President, Finance
(Principal Financial and Accounting Officer)
|January 29, 2015|
|Zohar Loshitzer||Director||January 29, 2015|
|Richard Ressler||Director||January 29, 2015|
|Mark Blumenkrantz||Director||January 29, 2015|
|Vladimir Feingold||Director||January 29, 2015|
|Ralph Thurman||Director||January 29, 2015|
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|4.1||Memorandum and Articles of Association (incorporated herein by reference to Exhibit 3.1 to the Registration Statement on Form S-1 filed with the Securities and Exchange Commission on January 23, 2015)|
|10.1||Presbia Incentive Plan (incorporated herein by reference to Exhibit 10.3 to the Registration Statement on Form S-1 filed with the Securities and Exchange Commission on January 23, 2015)|
|5.1||Opinion of Arthur Cox, Irish legal counsel of the Registrant|
|23.1||Consent of Deloitte LLP|
|23.2||Consent of Arthur Cox (filed as part of Exhibit 5.1)|
|24.1||Power of Attorney (included on the signature page to this Registration Statement on Form S-8)|
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29 January 2015
|To:||Board of Directors|
Arthur Cox Building
|Re:||Presbia plc (the Company)|
|1.||Basis of Opinion|
We are acting as Irish counsel to the Company, registered number 539137, a public company limited by shares, incorporated under the laws of Ireland, with its registered office at Arthur Cox Building, Earlsfort Centre, Earlsfort Terrace, Dublin 2, in connection with the registration statement on Form S-8 (the Registration Statement), to be filed with the United States Securities and Exchange Commission (the SEC) on 29 January 2015 under the Securities Act of 1933, as amended (the Securities Act) with respect to up to 1,800,000 ordinary shares with a nominal value of US$0.001 per share of the Company (the Shares) that may be delivered pursuant to the Companys incentive plan (known as the Presbia Incentive Plan) (the Plan).
|1.1||This Opinion is confined to and given in all respects on the basis of the laws of Ireland (meaning Ireland exclusive of Northern Ireland) in force as at the date hereof as currently applied by the courts of Ireland. We have made no investigation of and we express no opinion as to the laws of any other jurisdiction or the effect thereof. In particular, we express no opinion on the laws of the European Union as they affect any jurisdiction other than Ireland. We have assumed without investigation that insofar as the laws of any jurisdiction other than Ireland are relevant, such laws do not prohibit and are not inconsistent with any of the obligations or rights expressed in the documents listed in the schedule (the Schedule) to this opinion (the Documents) or the transactions contemplated thereby.|
|1.2||This Opinion is also strictly confined to:|
|(a)||the matters expressly stated herein and is not to be read as extending by implication or otherwise to any other matter;|
|(b)||the Documents (and no other documents whatsoever) and the Searches listed at paragraph 1.7 below.|
and is subject to the assumptions and qualifications set out below.
|1.3||We express no opinion, and make no representation or warranty, as to any matter of fact or in respect of any documents which may exist in relation to the Plan or the Shares other than the Documents.|
|1.4||In giving this Opinion, we have relied upon the Corporate Certificate (as defined in the Schedule to this Opinion) and the Searches (as defined below) and we give this Opinion expressly on the terms that no further investigation or diligence in respect of any matter referred to in the Corporate Certificate or the Searches is required of us.|
|1.5||In giving this Opinion, we have examined and relied on copies of the Documents sent to us by email in pdf or other electronic format.|
|1.7||For the purpose of giving this Opinion, we have caused to be made legal searches against the Company on 28 January 2015 (together the Searches):|
|(a)||on the file of the Company maintained by the Registrar of Companies in the Irish Companies Registration Office for mortgages, debentures or similar charges or notices thereof and for the appointment of any examiner, receiver or liquidator;|
|(b)||in the Judgments Office of the High Court for unsatisfied judgments, orders, decrees and the like for the twelve years immediately preceding the date of the search;|
|(c)||in the Central Office of the High Court for any petitions filed in respect of the Company; and|
|(d)||in the Central Office of the High Court for any proceedings filed by or against the Company in the five years immediately preceding the date of the search.|
|1.8||This Opinion is governed by and is to be construed in accordance with the laws of Ireland (as interpreted by the courts of Ireland at the date hereof). This Opinion speaks only as of its date. We assume no obligation to update this Opinion at any time in the future or to advise you of any change in law or change in interpretation of law which may occur after the date of this Opinion.|
Subject to the assumptions and qualifications set out in this Opinion and to any matters not disclosed to us, we are of the opinion that:
|2.1||The Company is a public company limited by shares and is duly incorporated and validly existing under the laws of Ireland.|
|2.2||The Shares have been duly authorised pursuant to resolutions of the board of directors of the Company and, when issued in accordance with the terms and conditions referred to or summarised in the applicable resolutions and the Plan, will be validly issued, fully paid up and non-assessable (which term means when used herein that no further sums are required to be paid by the holders thereof in connection with the issue of such Shares).|
For the purpose of giving this Opinion, we assume the following without any responsibility on our part if any assumption proves to have been untrue as we have not verified independently any assumption:
Registration Statement and the Plan
|3.1||that when filed with the SEC, the Registration Statement will not differ in any material respect from the drafts that we have examined;|
|3.2||that the Shares will be allotted and issued in the manner stated in the Plan and as provided for in the board and shareholder resolutions referred to in the Schedule;|
|3.3||that any awards granted pursuant to the Plan will be paid up in consideration of the receipt by the Company prior to, or simultaneously with, the allotment and issue of the Shares pursuant thereto of cash at least equal to the nominal value of such Shares and any premium required to be paid up on the Shares pursuant to their terms of allotment and issue and that where Shares are allotted and issued under the Plan without the requirement for the payment of cash consideration by or on behalf of the relevant beneficiary, then such shares shall either be fully paid up by the Company or one of its subsidiaries within the time permitted by Section 29(1) of the Companies (Amendment) Act 1983 (the 1983 Act) (and, in the case of the Company or a subsidiary incorporated in Ireland, in a manner permitted by section 60(12) of the Companies Act 1963 (as amended)) or allotted and issued for consideration as set out in Section 30(2) of the 1983 Act;|
|3.4||that the filing of the Registration Statement with the SEC has been authorised by all necessary actions under applicable laws other than Irish law;|
|3.5||that the exercise of any options and rights granted under the Plan and the allotment and issue of the Shares upon exercise of such options and rights (and the allotment and issue of the Shares in connection with any other awards granted under the Plan) will be conducted in accordance with the terms and the procedures described in the Plan and the applicable award agreement;|
|3.6||that the Company has sufficient share capital to allot and issue the required number of Shares to be delivered to recipients of any awards granted under the Plan;|
|3.7||that as at the time of the allotment and issuance of the Shares, such allotment and issuance shall not be in contravention or breach of any agreement, undertaking, arrangement, deed or covenant affecting the Company or to which the Company is a party or otherwise bound or subject;|
Authenticity and bona fides
|3.8||the completeness and authenticity of all Documents submitted to us as originals or copies of originals (and in the case of copies, conformity to the originals of such copies), the genuineness of all signatories, stamps and seals thereon and where incomplete Documents have been submitted to us that the originals of such Documents are identical to the last draft of the complete Documents submitted to us;|
|3.9||that the Documents will be executed in a form and content having no material difference to the drafts provided to us, will be delivered by the parties thereto, and that the terms thereof will be observed and performed by the parties thereto;|
|3.10||that the copies produced to us of minutes of meetings and/or of resolutions correctly record the proceedings at such meetings and/or the subject matter which they purport to record and that any meetings referred to in such copies were duly convened, duly quorate and held, that those present at any such meetings were entitled to attend and vote at the meeting and acted bona fide throughout and that no further resolutions have been passed or other action taken which would or might alter the effectiveness thereof and that such resolutions have not been amended or rescinded and are in full force and effect;|
|3.11||that there is, at the relevant time of the allotment and issue of the Shares, no matter affecting the authority of the directors to allot and issue the Shares, not disclosed by the Memorandum and Articles of Association or the resolutions produced to us, which would have any adverse implications in relation to the opinions expressed in this Opinion;|
|3.12||the Memorandum and Articles of Association of the Company amended on 14 January 2015 are the current Memorandum and Articles of Association of the Company, are up to date and have not been amended or superseded and that there are no other terms governing the Shares other than those set out in the Memorandum and Articles of Association of the Company;|
Accuracy of searches and warranties
|3.13||the accuracy and completeness of the information disclosed in the Searches and that such information is accurate as of the date of this Opinion and has not since the time of such search been altered. It should be noted that (a) the matters disclosed in the Searches may not present a complete summary of the actual position on the matters we have caused searches to be conducted for, (b) the position reflected by the Searches may not be fully up-to-date and (c) searches at the Irish Companies Registration Office do not necessarily reveal whether or not a prior charge has been created or a resolution has been passed or a petition presented or any other action taken for the winding-up of, or the appointment of a receiver or an examiner to, the Company or its assets and, accordingly, it is assumed that the Searches correctly reflect that (i) no receiver, liquidator or examiner or other similar officer has been appointed in relation to the Company or any of its assets or undertakings; (ii) no petition for the making or a winding-up order or the appointment of an examiner or any similar officer has been presented in relation to the Company; (iii) no insolvency proceedings have been opened or been requested to be opened in relation to the Company; and (iv) the Company is as at the date of this Opinion able to pay its debts as they fall due within the meaning of section 214 of the Companies Act 1963 of Ireland and section 2 of the Companies (Amendment) Act 1990 of Ireland;|
|3.14||the truth, completeness and accuracy of all representations and statements as to factual matters contained in the Documents; and|
|3.15||that the Documents have been entered into for bona fide commercial purposes, on arms length terms and for the benefit of each party thereto and are in those parties respective commercial interest and for their respective corporate benefit.|
This Opinion is addressed to you in connection with the registration of the Shares with the SEC. We hereby consent to the inclusion of this Opinion as an exhibit to the Registration Statement to be filed with the SEC. In giving this consent we do not thereby admit that we are a category of person whose consent is required under Section 7 of the Securities Act.
The opinion is governed by and construed in accordance with the laws of Ireland.
/s/ Arthur Cox
|1.||A copy of the Registration Statement.|
|2.||The Presbia Incentive Plan.|
|3.||A copy of the resolutions of the members of the Company dated 14 January 2014 approving:|
|(a)||the memorandum and articles of association of the Company;|
|(b)||the increase in authorised share capital;|
|(c)||the re-designation of share capital; and|
|(d)||the Plan and issue of shares thereunder.|
|4.||A copy of the resolutions of the board of directors of the Company dated 14 January 2015 approving, among other things, the allotment and issue of the Shares, filing of the Registration Statement with the SEC and the Plan.|
|5.||A corporate certificate of the secretary of the Company dated 29 January 2015 (the Corporate Certificate).|
|6.||A copy of the memorandum and articles of association of the Company as adopted on 14 January 2015.|
|7.||A copy of the Certificate of Incorporation of the Company dated 6 February 2014.|
|8.||Letter of Status from the Irish Companies Registration Office dated 28 January 2015.|
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 20, 2014 (November 30, 2014 and January 14, 2015 as to the second and third paragraphs of Note 1, respectively) relating to the combined financial statements of the Presbia PLC, an Irish public limited company (the Company), (which report expresses an unqualified opinion and includes an explanatory paragraph relating to the Companys ability to continue as a going concern, and an explanatory paragraph relating to allocations of expenses from Presbia Holdings, the Companys ultimate controlling shareholder and arrangements with related parties), which appears in the Companys Prospectus filed on January 29, 2015 pursuant to Rule 424(b) of the Securities Act (Registration Statement No. 333-194713).
/s/ Deloitte & Touche LLP
Los Angeles, California
January 29, 2015