As filed with the Securities and Exchange Commission on January 26, 2016

 

Registration No.  333-      

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM S-8

 

 

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

Sientra, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware

 

20-5551000

(State or other jurisdiction of incorporation or organization)

 

(I.R.S. Employer Identification No.)

 

420 South Fairview Avenue, Suite 200
Santa Barbara, CA 93117

 

93117

(Address of principal executive offices)

 

(Zip code)

 

2014 Equity Incentive Plan

2014 Employee Stock Purchase Plan

(Full titles of the plans)

 

Jeffrey Nugent

Chairman and Chief Executive Officer

Sientra, Inc.

420 South Fairview Avenue, Suite 200

Santa Barbara, CA 93117

(805) 562-3500

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

C. Thomas Hopkins, Esq.

 

Matthew Pigeon

Cooley LLP

 

Chief Financial Officer and Treasurer

1333 2nd Street, Suite 400

 

Sientra, Inc.

Santa Monica, CA 90401

 

420 South Fairview Avenue, Suite 200

(310) 883-6400

 

Santa Barbara, CA 93117

 

 

(805) 562-3500

 

 

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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large Accelerated filer

o

Accelerated filer

x

 

 

 

 

Non-accelerated filer

o (Do not check if a smaller reporting company)

Smaller reporting company

o

 

CALCULATION OF REGISTRATION FEE

 

 

 

 

 

 

 

 

 

 

Title of securities
to be registered

 

Amount
to be
registered(1)

 

Proposed
maximum
offering price
per share

 

Proposed
maximum
aggregate
offering price

 

Amount of
registration fee

 

2014 Equity Incentive Plan
Common Stock, $0.01 par value per share

 

719,736 shares

(2)

$

7.16

(3)

$

5,153,309.76

(3)

$

518.94

 

2014 Employee Stock Purchase Plan
Common Stock, $0.01 par value per share

 

179,934 shares

(4)

$

7.16

(3)

$

1,288,327.44

(3)

$

129.74

 

Total

 

899,670 shares

 

N/A

 

$

6,441,637.20

 

$

648.68

 

(1)                                   Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the Registrant’s Common Stock (the “Common Stock”) that become issuable under the 2014 Equity Incentive Plan (the “2014 Plan”) and the 2014 Employee Stock Purchase Plan (the “2014 ESPP”) by reason of any stock dividend, stock split, recapitalization or other similar transaction.

 

(2)                                   Represents 719,736 shares of Common Stock that became available for issuance on January 1, 2016 under the 2014 Plan pursuant to an evergreen provision of the 2014 Plan. Pursuant to such provision, an additional number of shares will automatically be added to the shares authorized for issuance under the 2014 Plan on January 1 of each calendar year, from January 1, 2015 through January 1, 2024. The number of shares added each year will be equal to: (a) 4% of the total number of shares of capital stock outstanding on December 31 of the preceding calendar year; or (b) such lesser number of shares of Common Stock as is determined by the Registrant’s board of directors (the “Board”) for the applicable year.

 

(3)                                   This estimate is made pursuant to Rule 457(c) and (h) of the Securities Act solely for purposes of calculating the registration fee, and is based on the average of the high and low prices of the Registrant’s Common Stock on January 20, 2016 as reported the NASDAQ Global Select Market.

 

(4)                                   Represents 179,934 shares of Common Stock that became available for issuance on January 1, 2016 under the 2014 ESPP pursuant to an evergreen provision of the 2014 ESPP. The 2014 ESPP provides that an additional number of shares will automatically be added to the shares authorized for issuance under the 2014 ESPP on January 1 of each calendar year, from January 1, 2015 through January 1, 2024. The number of shares of Common Stock added each year will be equal to the lesser of: (a) 1% of the total number of shares of capital stock outstanding on December 31 of the preceding calendar year; (b) 3,000,000 shares of Common Stock; or (c) a lesser number of shares of Common Stock as is determined by the Board for the applicable year.

 

 

 


 

INCORPORATION BY REFERENCE OF CONTENTS

OF REGISTRATION STATEMENT ON FORM S-8

 

This Registration Statement on Form S-8 is being filed for the purpose of increasing the number of securities of the same class as other securities for which a Registration Statement on Form S-8 relating to the same benefit plans is effective. The Registrant previously registered shares of its Common Stock for issuance under the 2014 Plan and 2014 ESPP under Registration Statements on Form S-8 filed with the Securities and Exchange Commission on October 29, 2014 (File No. 333-199684) and March 19, 2015 (File No. 333-202879). Pursuant to General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Registration Statements referenced above.

 

2


 

ITEM 8.       EXHIBITS.

 

Exhibit
Number

 

Description 

4.1

(1)

 

Amended and Restated Certificate of Incorporation of the Registrant.

 

 

 

 

4.2

(2)

 

Amended and Restated Bylaws of the Registrant.

 

 

 

 

4.3

(3)

 

Form of Common Stock Certificate of the Registrant.

 

 

 

 

5.1

*

 

Opinion of Cooley LLP.

 

 

 

 

23.1

*

 

Consent of KPMG LLP, an independent registered public accounting firm.

 

 

 

 

23.2

*

 

Consent of Cooley LLP (included in Exhibit 5.1).

 

 

 

 

24.1

*

 

Power of Attorney (included in signature page to this Registration Statement).

 

 

 

 

99.1

(4)†

 

2007 Equity Incentive Plan and forms of award agreements thereunder.

 

 

 

 

99.2

(5)†

 

2014 Equity Incentive Plan and forms of award agreements thereunder.

 

 

 

 

99.3

(6)†

 

2014 Employee Stock Purchase Plan.

 

(1)          Previously filed as Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(2)          Previously filed as Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(3)          Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(4)          Previously filed as Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on September 19, 2014, as amended, and incorporated herein by reference.

(5)          Previously filed as Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(6)          Previously filed as Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

*                  Filed herewith.

†                  Indicates a management contract or compensatory plan or arrangement.

 

3


 

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 Santa Barbara, State of California, on January 26, 2016.

 

 

SIENTRA, INC.

 

 

 

By:

/s/ Jeffrey Nugent

 

 

Jeffrey Nugent

 

 

Chairman and Chief Executive Officer

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose individual signature appears below hereby authorizes and appoints Matthew Pigeon and Jeffrey Nugent, and each of them, with full power of substitution and resubstitution and full power to act without the other, as his true and lawful attorney-in-fact and agent to act in his name, place and stead and to execute in the name and on behalf of each person, individually and in each capacity stated below, and to file any and all amendments (including post-effective amendments) to this 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 of them, full power and authority to do and perform each and every act and thing, ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or his substitute or substitutes may lawfully do or cause to be done by virtue thereof.

 

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.

 

Name

 

Title

 

Date

 

 

 

 

 

/s/ Jeffrey Nugent

 

Chairman and Chief Executive Officer

 

January 26, 2016

Jeffrey Nugent

 

(Principal Executive Officer)

 

 

 

 

 

 

 

/s/ Matthew Pigeon

 

Chief Financial Officer and Treasurer

 

January 26, 2016

Matthew Pigeon

 

(Principal Financial and Accounting Officer)

 

 

 

 

 

 

 

/s/ Nicholas Simon

 

Director

 

January 26, 2016

Nicholas Simon

 

 

 

 

 

 

 

 

 

/s/ Timothy Haines

 

Director

 

January 26, 2016

Timothy Haines

 

 

 

 

 

 

 

 

 

/s/ R. Scott Greer

 

Director

 

January 26, 2016

R. Scott Greer

 

 

 

 

 

 

 

 

 

/s/ Kevin O’Boyle

 

Director

 

January 26, 2016

Kevin O’Boyle

 

 

 

 

 

 

 

 

 

/s/ Hani Zeini

 

Director

 

January 26, 2016

Hani Zeini

 

 

 

 

 

4


 

EXHIBIT INDEX

 

Exhibit
Number

 

Description 

4.1

(1)

 

Amended and Restated Certificate of Incorporation of the Registrant.

 

 

 

 

4.2

(2)

 

Amended and Restated Bylaws of the Registrant.

 

 

 

 

4.3

(3)

 

Form of Common Stock Certificate of the Registrant.

 

 

 

 

5.1

*

 

Opinion of Cooley LLP.

 

 

 

 

23.1

*

 

Consent of KPMG LLP, an independent registered public accounting firm.

 

 

 

 

23.2

*

 

Consent of Cooley LLP (included in Exhibit 5.1).

 

 

 

 

24.1

*

 

Power of Attorney (included in signature page to this Registration Statement).

 

 

 

 

99.1

(4)†

 

2007 Equity Incentive Plan and forms of award agreements thereunder.

 

 

 

 

99.2

(5)†

 

2014 Equity Incentive Plan and forms of award agreements thereunder.

 

 

 

 

99.3

(6)†

 

2014 Employee Stock Purchase Plan.

 

(1)          Previously filed as Exhibit 3.2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(2)          Previously filed as Exhibit 3.4 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(3)          Previously filed as Exhibit 4.1 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(4)          Previously filed as Exhibit 10.2 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on September 19, 2014, as amended, and incorporated herein by reference.

(5)          Previously filed as Exhibit 10.3 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

(6)          Previously filed as Exhibit 10.5 to the Registrant’s Registration Statement on Form S-1 (File No. 333-198837), originally filed with the Commission on October 20, 2014, as amended, and incorporated herein by reference.

*                  Filed herewith.

†                  Indicates a management contract or compensatory plan or arrangement.

 

5

Exhibit 5.1

 

GRAPHIC

 

C. Thomas Hopkins

T: +1 310 883 6417

thopkins@cooley.com

 

January 26, 2016

 

Sientra, Inc.

420 South Fairview Avenue, Suite 200

Santa Barbara, CA 93117

 

Ladies and Gentlemen:

 

You have requested our opinion with respect to certain matters in connection with the filing by Sientra, Inc., a Delaware corporation (the “ Company ”), of a Registration Statement on Form S-8 (the “ Registration Statement ”) with the Securities and Exchange Commission covering the offering of up to 899,670 shares of the Company’s Common Stock, $0.01 par value, including (i)  719,736 shares of Common Stock (the “ EIP Shares ”) pursuant to the Company’s 2014 Equity Incentive Plan (the “ 2014 EIP ”), and (ii) 179,934 shares of Common Stock (the “ ESPP Shares ”) pursuant to the Company’s 2014 Employee Stock Purchase Plan (the “ ESPP ” and together with the 2014 EIP, the “ Plans ”).

 

In connection with this opinion, we have examined and relied upon (a) the Registration Statement and related prospectuses, (b) the Plans, (c) the Company’s Amended and Restated Certificate of Incorporation and Bylaws, as currently in effect, and (d) the originals or copies certified to our satisfaction of such records, documents, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below. We have assumed the genuineness and authenticity of all documents submitted to us as originals, and the conformity to originals of all documents where due execution and delivery are a prerequisite to the effectiveness thereof. As to certain factual matters, we have relied upon a certificate of an officer of the Company and have not sought to independently verify such matters. Our opinion is expressed only with respect to the General Corporation Law of the State of Delaware.

 

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the EIP Shares and the ESPP Shares, when sold and issued in accordance with the Plans and the Registration Statement and related prospectuses, will be validly issued, fully paid, and nonassessable (except as to shares issued pursuant to certain deferred payment arrangements, which will be fully paid and nonassessable when such deferred payments are made in full).

 

We consent to the filing of this opinion as an exhibit to the Registration Statement.

 

1333 2ND STREET, SUITE 400, SANTA MONICA, CA 90401  T: (310) 883-6400  F: (310) 883-6500  WWW.COOLEY.COM

 


 

Sincerely,

 

Cooley LLP

 

 

By:

/s/ C. Thomas Hopkins

 

 

C. Thomas Hopkins

 

 

2

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors and Stockholders
Sientra, Inc.:

 

We consent to the use of our report dated March 18, 2015, with respect to the balance sheets of Sientra, Inc. as of December 31, 2014 and 2013, and the related statements of operations, convertible preferred stock and stockholders’ equity (deficit), and cash flows for each of the years in the three-year period ended December 31, 2014, and the related financial statement schedule, incorporated by reference herein.

 

/s/ KPMG LLP

 

Woodland Hills, California

January 26, 2016