As filed with the Securities and Exchange Commission on March 11, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
ELEVEN BIOTHERAPEUTICS, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
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26-2025616
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(State or Other Jurisdiction of
Incorporation or Organization)
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(I.R.S. Employer
Identification No.)
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215 First Street, Suite 400
Cambridge, MA
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02142
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(Address of Principal Executive Offices)
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(Zip Code)
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2014 Stock Incentive Plan
(Full Title of the Plan)
Abbie C. Celniker, Ph.D.
President and Chief Executive Officer
Eleven Biotherapeutics, Inc.
215 First Street, Suite 400
Cambridge, MA 02142
(Name
and Address of Agent For Service)
(617) 871-9911
(Telephone Number, Including Area Code, of Agent For Service)
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 of the Exchange Act.
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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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, $0.001 par value per share
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722,331 shares(2)
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$10.84(3)
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$7,826,456.39(3)
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$910.00
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(1)
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In accordance with Rule 416 under the Securities Act of 1933, as amended, this registration statement shall be deemed to cover any additional securities that may from time to time be offered or issued to prevent
dilution resulting from stock splits, stock dividends or similar transactions.
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(2)
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Represents shares reserved on January 1, 2015 for issuance for awards that may be granted under the 2014 Stock Incentive Plan. Shares issuable upon exercise of the options granted under the 2014 Stock Incentive
Plan were previously registered on registration statements on Form S-8 filed with the Securities and Exchange Commission on April 9, 2014 (Registration No. 333-195170).
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(3)
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Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) of the Securities Act of 1933, as amended, and based upon the average of the high and low prices of the
Registrant’s Common Stock as reported on the Nasdaq Global Market on March 4, 2015.
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Statement of Incorporation by Reference
This registration statement on Form S-8 is being filed to register the offer and sale of an additional 722,331 shares of common
stock, $0.001 par value per share, of Eleven Biotherapeutics, Inc. (the “Registrant”) reserved on January 1, 2015 for issuance for awards granted under the Registrant’s 2014 Stock Incentive Plan, pursuant to the terms of such
plan. In accordance with General Instruction E to Form S-8, this registration statement on Form S-8 hereby incorporates by reference the contents of the Registrant’s registration statement on Form S-8 filed with the
Securities and Exchange Commission on April 9, 2014 (Registration No. 333-195170).
- 1 -
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 Cambridge, Massachusetts, on this 11
th
day of March, 2015.
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ELEVEN BIOTHERAPEUTICS, INC.
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By:
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/s/ Abbie C. Celniker, Ph.D.
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Abbie C. Celniker, Ph.D.
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President and Chief Executive Officer
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POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Eleven Biotherapeutics, Inc., hereby severally constitute and appoint Abbie C. Celniker, Ph.D.,
and Gregory D. Perry, and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the registration statement on Form S-8 filed herewith
and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Eleven Biotherapeutics, Inc. to comply with the provisions
of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said registration statement and
any and all amendments thereto.
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/ Abbie C. Celniker, Ph.D.
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President and Chief Executive Officer
(Principal Executive Officer)
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March 11, 2015
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Abbie C. Celniker, Ph.D.
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/s/ Gregory D. Perry
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Chief Financial and Business Officer
(Principal financial and accounting officer)
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March 11, 2015
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Gregory D. Perry
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/s/ Daniel S. Lynch
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Chairman of the Board of Directors
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March 11, 2015
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Daniel S. Lynch
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/s/ David A. Berry, M.D., Ph.D.
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Director
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March 11, 2015
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David A. Berry, M.D., Ph.D.
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- 2 -
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/s/ Paul G. Chaney
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Director
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March 11, 2015
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Paul G. Chaney
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/s/ Jay S. Duker, M.D.
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Director
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March 11, 2015
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Jay S. Duker, M.D.
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/s/ Wendy L. Dixon, Ph.D.
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Director
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March 11, 2015
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Wendy L. Dixon, Ph.D.
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/s/ Barry J. Gertz, M.D., Ph.D.
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Director
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March 11, 2015
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Barry J. Gertz, M.D., Ph.D.
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/s/ Jane V. Henderson
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Director
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March 11, 2015
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Jane V. Henderson
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/s/ Cary G. Pfeffer, M.D.
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Director
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March 11, 2015
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Cary G. Pfeffer, M.D.
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- 3 -
INDEX TO EXHIBITS
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Number
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Description
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4.1
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Restated Certificate of Incorporation of the Registrant (Incorporated by reference to Exhibit 3.1 to our Current Report on Form 8-K filed with the SEC on February 18, 2014)
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4.2
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Amended and Restated By-laws of the Registrant (Incorporated by reference to Exhibit 3.2 to our Current Report on Form 8-K filed with the SEC on February 18, 2014)
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5.1
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Opinion of Wilmer Cutler Pickering Hale and Dorr LLP, counsel to the Registrant
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23.1
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Consent of Ernst & Young LLP
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23.2
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Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)
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24
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Power of attorney (included on signature page)
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99.1
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2014 Stock Incentive Plan (Incorporated by reference to Exhibit 10.5 to our Registration Statement on Form S-1/A filed with the SEC on January 23, 2014)
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March 11, 2015
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+1 617 526 6000 (t)
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+1 617 526 5000 (f)
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wilmerhale.com
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Eleven Biotherapeutics, Inc.
215 First Street, Suite 400
Cambridge, Massachusetts 02142
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Re:
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2014 Stock Incentive Plan
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Ladies and Gentlemen:
We have
assisted in the preparation of a Registration Statement on Form S-8 (the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the
“Securities Act”), relating to an aggregate of 722,331 shares of common stock, $0.001 par value per share (the “Shares”), of Eleven Biotherapeutics, Inc., a Delaware corporation (the “Company”), issuable under the
Company’s 2014 Stock Incentive Plan (the “Plan”).
We have examined the Certificate of Incorporation and By-Laws of the Company, each as
amended and restated to date, and originals, or copies certified to our satisfaction, of all pertinent records of the meetings of the directors and stockholders of the Company, the Registration Statement and such other documents relating to the
Company as we have deemed material for the purposes of this opinion.
In our examination of the foregoing documents, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or other copies, the authenticity of the originals of any such documents
and the legal competence of all signatories to such documents.
We assume that the appropriate action will be taken, prior to the offer and sale of the
Shares in accordance with the Plan, to register and qualify the Shares for sale under all applicable state securities or “blue sky” laws.
We
express no opinion herein as to the laws of any state or jurisdiction other than the state laws of The Commonwealth of Massachusetts, the General Corporation Law of the State of Delaware and the federal laws of the United States of America.
It is understood that this opinion is to be used only in connection with the offer and sale of the Shares while the Registration Statement is in effect.
Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized for issuance and, when the Shares are issued and paid for in
accordance with the terms and conditions of the Plan, the Shares will be validly issued, fully paid and nonassessable.
Eleven Biotherapeutics, Inc.
March 11, 2015
Page
2
We hereby consent to the filing of this opinion with the Commission in connection with the Registration
Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act. In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of
the Securities Act or the rules and regulations of the Commission.
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Sincerely,
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WILMER CUTLER PICKERING
HALE AND DORR LLP
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By:
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/s/ Richard A. Hoffman
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Richard A. Hoffman, Partner
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