As filed with
the Securities and Exchange Commission on February 9, 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
EyeGate Pharmaceuticals, Inc.
(Exact name of registrant as specified
in its charter)
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Delaware
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98-0443284
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(State or other jurisdiction of
incorporation or organization)
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(IRS Employer
Identification No.)
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271 Waverley Oaks Road
Suite 108
Waltham, MA
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02452
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(Address of Principal Executive Offices)
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(Zip Code)
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EyeGate Pharmaceuticals, Inc. 2014 Equity
Incentive Plan
(Full title of the
plan)
Stephen From
President and Chief Executive Officer
EyeGate Pharmaceuticals, Inc.
271 Waverley Oaks Road
Suite 108
Waltham, MA 02452
(Name and address
of agent for service)
(781) 788-9043
(Telephone number, including area code,
of agent for service)
Copies to:
J. Fraser Collin
Robert A. Petitt
Burns & Levinson LLP
125 Summer Street
Boston, MA 02110
Telephone: (617) 345-3000
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):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a
smaller reporting company)
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Smaller reporting company
x
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CALCULATION OF REGISTRATION FEE
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Title of securities to be registered
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Amount
to be
registered(1)
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Proposed
maximum
offering price
per share
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Proposed
maximum
aggregate
offering price
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Amount of
registration fee
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Common stock, $0.01 par value per share
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306,291 (2)
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$2.82 (3)
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$863,741 (3)
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$87
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(1)
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This Registration Statement
relates to an automatic increase of 306,291 shares of the Registrant’s common stock, par value $0.01 per share (the “Common
Stock”) to the number of shares of Common Stock available for issuance on January 1, 2016 pursuant to an “evergreen”
provision under the Registrant’s 2014 Equity Incentive Plan (the “2014 Plan”); plus such indeterminate number
of additional shares of Common Stock as may be required pursuant to the 2014 Plan in the event of a stock dividend, stock split
other similar event.
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(2)
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The Company previously filed
a Registration Statement on Form S-8 on February 20, 2015 (SEC File No. 333-202207), registering the issuance of 728,597
shares of Common Stock under the 2014 Plan.
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(3)
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Estimated in accordance
with Rule 457(c) and (h) under the Securities Act of 1933, as amended, solely for the purpose of calculating the registration
fee. Such computation is based on the average of the high and low prices of the Registrant’s Common Stock as reported on
the NASDAQ Capital Market on February 4, 2016 with respect to trading under the ticker symbol “EYEG”.
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INCORPORATION BY REFERENCE OF PRIOR REGISTRATION
STATEMENT
This Registration Statement on Form S-8
is filed by EyeGate Pharmaceuticals, Inc., a Delaware corporation (the “
Registrant
”), relating to 306,291 shares
of its common stock, par value $0.01 per share (the “
Common Stock
”), issuable under the Registrant’s 2014
Equity Incentive Plan (the “
2014 Plan
”) that have become reserved for issuance as a result of the operation
of the “evergreen” provision of the 2014 Plan, which provides that the total number of shares subject to such plan
will be increased on January 1 of each of the ten (10) calendar years during the term of the 2014 Plan pursuant to a
specified formula. The shares of Common Stock included on this Registration Statement are in addition to the shares of Common Stock
relating to the 2014 Plan that were registered on the Registrant’s Registration Statements on Form S-8 filed with the Securities
and Exchange Commission (the “
Commission
”) on February 20, 2015 (SEC File No. 333-202207) (the “
Prior
Registration Statement
”).
This Registration Statement relates to
securities of the same class as those to which the Prior Registration Statement relates, and is submitted in accordance with General
Instruction E to Form S-8 regarding the Registration of Additional Securities. Pursuant to General Instruction E to Form S-8, the
contents of the Prior Registration Statement are incorporated herein by reference and made part of this Registration Statement,
except as supplemented by the information set forth below.
PART II
INFORMATION REQUIRED IN THE REGISTRATION
STATEMENT
Item 3. Incorporation of Documents
by Reference.
The Registrant is subject to the informational
and reporting requirements of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “
Exchange
Act
”), and in accordance therewith files reports, proxy statements and other information with the Commission. The following
documents, which are on file with the Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant’s Annual Report
on Form 10-K for the fiscal year ended December 31, 2014 filed with the Commission on March 31, 2015 pursuant to Section 13
of the Exchange Act;
(b) All other reports filed by the Registrant
pursuant to Section 13(a) or 15(d) of the Exchange Act, since the end of the fiscal year covered by the Registrant’s Annual
Report referred to in (a) above; and
(c) The description of the Registrant’s
Common Stock contained in the Registrant’s Amendment No. 1 to Registration Statement on Form 8-A (File No. 001-36672) filed
with the Commission on July 30, 2015 under the Exchange Act, including any amendment or report filed for the purpose of updating
such description.
All documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the filing of this Registration Statement
and prior to the filing of a post-effective amendment 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 part hereof from the date of the filing of such documents, except as to documents or information deemed to have been
furnished and not filed in accordance with the rules of the Commission. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or superseded for the 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 statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits.
The Exhibit Index immediately preceding
the exhibits is incorporated herein by reference.
SIGNATURES
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 Waltham, Commonwealth of Massachusetts, on this 9th day of February, 2016.
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EYEGATE PHARMACEUTICALS, INC.
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By:
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/s/ Stephen From
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Stephen From
President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below hereby constitutes and appoints Stephen From, as his true and lawful attorney in fact
and agent with full power of substitution, for him in any and all capacities, to sign any and all amendments to this Registration
Statement on Form S-8 (including post effective amendments), and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney in fact, proxy and agent full
power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith,
as fully for all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney
in fact, proxy and agent, or his substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed 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/ Stephen From
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President, Chief Executive Officer and Director
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February 9, 2016
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Stephen From
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(principal executive officer and principal financial
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and accounting officer)
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/s/ Paul Chaney
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Director
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February 9, 2016
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Paul Chaney
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/s/ Morton Goldberg
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Director
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February 9, 2016
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Morton Goldberg
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/s/ Praveen Tyle
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Director
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February 9, 2016
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Praveen Tyle
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/s/ Thomas Balland
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Director
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February 9, 2016
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Thomas Balland
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/s/ Thomas E. Hancock
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Director
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February 9, 2016
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Thomas E. Hancock
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/s/ Bernard Malfroy-Camine
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Director
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February 9, 2016
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Bernard Malfroy-Camine
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/s/ Mounia Chaoui
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Director
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February 9, 2016
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Mounia Chaoui
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INDEX TO EXHIBITS
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Exhibit
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Number
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Description
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4.1
(1)
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Restated Certificate of Incorporation of Registrant
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4.2
(2)
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Amended and Restated Bylaws of Registrant
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4.3
(3)
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Specimen common stock certificate of Registrant
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4.4
(4)
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2014 Equity Incentive Plan
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5.1
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Opinion of Burns & Levinson LLP
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23.1
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Consent of Independent Registered Accounting Firm
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23.2
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Consent of Burns & Levinson LLP (contained in Exhibit 5.1 hereto)
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24.1
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Power of Attorney (contained on signature page hereto)
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(1)
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Incorporated by reference to Exhibit 3.1 filed with the
Registrant’s Current Report on Form 8-K filed with the SEC on February 20, 2015.
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(2)
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Incorporated by reference to Exhibit 3.2 filed with the
Registrant’s Current Report on Form 8-K filed with the SEC on February 20, 2015.
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(3)
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Incorporated by reference to Exhibit 4.1 filed with the
Registrant’s Amendment No. 2 to Form S-1 Registration Statement (Registration No. 333-197725) filed with the SEC on
August 29, 2014.
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(4)
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Incorporated by reference to Exhibit 10.2 filed with the
Registrant’s Amendment No. 7 to Form S-1 Registration Statement (Registration No. 333-197725) filed with the SEC on
December 24, 2014.
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Exhibit 5.1
February 9, 2016
Eyegate Pharmaceuticals, Inc.
271 Waverley Oaks Road
Suite 108
Waltham, MA 02452
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Re:
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Registration
Statement on Form S-8
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Ladies and Gentlemen:
You have requested our opinion with respect to certain matters
in connection with the filing by Eyegate Pharmaceuticals, 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 an aggregate of 306,291 shares (the “
Shares
”) of the Company’s Common Stock,
par value $0.01 per share (“
Common Stock
”), pursuant to the Company’s 2014 Equity Incentive Plan (the
“
Plan
”).
In connection with this opinion, we have examined and relied
upon our review of (a) the Registration Statement and related prospectuses, (b) the Plan, (c) the Company’s
Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, each as currently in effect, and (d) such
other documents, records, 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, the conformity to originals of all documents submitted to us as copies thereof, and the due execution and delivery of
all documents where due execution and delivery are a prerequisite to the effectiveness thereof.
Our opinion is expressed only with respect to the General Corporation
Law of the State of Delaware.
For purposes of the opinion expressed below, we have assumed
that a sufficient number of authorized but unissued shares of Common Stock will be available for issuance when the Shares are issued.
On the basis of the foregoing, and in reliance thereon, we are
of the opinion that the Shares, when sold and issued in accordance with the Plan, and the Registration Statement and related prospectus,
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.
Very truly yours,
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/s/ Burns & Levinson LLP
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Burns & Levinson LLP
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