Vivani Medical, Inc DEFA14A, filed Jan 6, 2021

Vivani Medical, Inc. (VANI)

DEFA14A 2021-01-06

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California	001-36747	02-069322
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer ID No.)



Title of Each Class	Trading Symbol	Name of each exchange on which registered
Common Stock	EYES	Nasdaq
Warrants	EYESW	Nasdaq




			Second Sight Medical Products, Inc.
			(Registrant)
	January 6, 2021		/s/ Matt Pfeffer
	(Date)		By: Matthew Pfeffer
			Title: Chief Executive Officer

Exhibit No.		Description

2.1*		Memorandum of Understanding, dated January 5, 2021, by and among Second Sight and Pixium
10.1		Form of Contribution Agreement, by and between Second Sight and Pixium
10.2		Form of Separation and Distribution Agreement, by and between Second Sight, Pixium, and Spinco
10.3		Form of Exclusive License Agreement, by and between Second Sight, Pixium, and Spinco
10.4		Voting Agreement, dated January 5, 2021, by and between Pixium and Gregg Williams
10.5		Voting Agreement, dated January 5, 2021, by and between Pixium and Matthew Pfeffer
99.1		Press Release of Second Sight Medical Products, Inc., dated January 6, 2021.
99.2		Investor Presentation


“Acceptable Confidentiality Agreement”	shall mean a confidentiality agreement that (a) contains provisions that are no less favorable to the Company than those contained in the Confidentiality Agreement, (b) does not prohibit the Company from complying with the provisions of Article 4 and (c) does not include any provision calling for an exclusive right to negotiate with the Company prior to the termination of this Agreement;
“Action”	shall mean any litigation, action, claim, suit, hearing, arbitration, mediation or other proceeding (public or private) by or before, or otherwise involving, any Regulatory Authority or an arbitrator;
“Acquisition Transaction”	shall mean any transaction or series of related transactions involving: any merger, reverse merger, consolidation, amalgamation, share exchange, business combination, issuance of securities, acquisition of securities, reorganization, recapitalization, tender offer, exchange offer, joint venture, direct or indirect sale, transfer or disposition of assets (including by any license or lease) or other similar transaction: (i) in which a Party or its Subsidiary is a constituent Entity; (ii) in which a Person or “group” (as defined in the Exchange Act and the rules promulgated thereunder) of Persons directly or indirectly acquires beneficial or record ownership of securities representing more than 10% of the outstanding securities of any class of voting securities of the Company or any of its subsidiaries or more than 10% of the consolidated assets of the Company (measured by either book value or fair market value); or (iii) in which the Company or any of its subsidiaries issues securities representing more than 10% of the outstanding securities of any class of voting securities of the Company or any of its subsidiaries; provided, however, that, the Fund Raising and Contribution effected in accordance with the terms and conditions of this Agreement shall not constitute an Acquisition Transaction; or (iv) in which Pixium or any of its subsidiaries acquires beneficial or record ownership of securities representing more than 10% of the outstanding securities of any class of voting securities of a Person publicly traded in the U.S.; or (v) any sale, lease, exchange, transfer, license, acquisition or disposition of any business or businesses or assets that constitute or account for 10% or more of the consolidated book value or the fair market value of the assets of a Party participating in such transaction and its subsidiaries, taken as a whole.
“Activity”	shall have the meaning set forth in Section 3.1.2;


	☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)


	☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)


	☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))


“GAAP”	shall mean generally accepted accounting principles;
“Intellectual Property Rights”	shall mean and includes all intellectual property or other proprietary rights under the laws of any jurisdiction in the world, including, without limitation: (a) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, software, databases, and mask works; (b) trademarks, service marks, trade dress, logos, trade names and other source identifiers, domain names and URLs and similar rights and any and all goodwill associated therewith; (c) rights associated with trade secrets, know how, inventions, invention disclosures, methods, processes, protocols, specifications, techniques and other forms of technology; (d) patents and industrial property rights; and (e) other similar proprietary rights in intellectual property of every kind and nature; (f) rights of privacy and publicity; and (g) all registrations, renewals, extensions, statutory invention registrations, provisionals, continuations, continuations-in-part, provisionals, divisions, or reissues of, and applications for, any of the rights referred to in clauses “(a)” through “(f)” above (whether or not in tangible form and including all tangible embodiments of any of the foregoing, such as samples, studies and summaries), along with all rights to prosecute and perfect the same through administrative prosecution, registration, recordation or other administrative proceeding, and all causes of action and rights to sue or seek other remedies arising from or relating to the foregoing, including for past, present or future infringement of any of the foregoing.
“Knowledge”	shall mean, (i) with respect to the Company, the actual knowledge, after due inquiry, of the persons set forth in Schedule A of the Company Disclosure Schedule and (ii) with respect to Pixium, the actual knowledge, after due inquiry, of the persons set forth in Schedule A of the Pixium Disclosure Schedule;
“Law”	shall mean any law, statute, ordinance, rule, regulation or Order that is final and non-appealable, agency rules, regulations and requirements, including rules and regulations of any stock exchange on which Pixium Securities or Second Sight Shares are listed;
“Liability”	shall mean any known or unknown liability, indebtedness, obligation or commitment of any kind, nature or character (whether accrued, absolute, contingent, matured, unmatured or otherwise, and whether or not required to be recorded or reflected on a balance sheet prepared under GAAP);
“Lien”	shall mean any lien, pledge, security interest, claim, third party right or other encumbrance;


“Material Adverse Effect”	means any Effect that is, or would reasonably be expected to be, individually or in the aggregate with all other Effects, materially adverse to the business, assets, financial condition or results of operations of a Party and its subsidiaries, taken as a whole; provided, however, that none of the following Effects (alone or in combination) shall constitute, nor shall be taken into account in determining whether there has been or would reasonably be expected to be, a Material Adverse Effect: (i) any Effect to the extent generally affecting (a) companies in the industry in which the Party and its subsidiaries operate; (b) the economies or general business conditions of or financial, credit, currency or capital market conditions in which the Party and its subsidiaries operate, including changes in interest or exchange rates or any suspension of trading securities on any securities exchange or over-the-counter market; and (c) national or international political conditions; and (ii) any Effect that results from (a) changes in Law or GAAP or other accounting standards (or the enforcement or interpretation of any of the foregoing by a Regulatory Authority); (b) the execution, announcement or performance of this Agreement or the consummation of the Transaction, including the impact of any of the foregoing on the relationships, contractual or otherwise, of the Party and its subsidiaries with employees, customers, investors, contractors, lenders, suppliers, vendors, partners, licensors, licensees, payors, Regulatory Authorities or other third parties; (c) acts of war (whether or not declared), the commencement, continuation or escalation of a war, acts of armed hostility, sabotage, terrorism, cyberterrorism, military actions or any escalation or worsening of such conditions; (d) volcanoes, tsunamis, epidemics, pandemics (including COVID-19), plagues, other outbreaks of illness or public health events, earthquakes, hurricanes, tornadoes, floods, wild fires, weather conditions or other natural disasters or acts of God, or any escalation or worsening of such conditions; or (e) any Transaction Litigation; (iii) (a) any change in the Party’s credit ratings; (b) any decline in the market price, or change in trading volume, of the capital stock of the Party; or (c) any failure to meet, or changes to, any operating predictions of revenue, earnings, cash flow or cash position or other financial or performance measures or operating statistics (whether made by the Party or third parties) (it being understood that the exceptions in clauses (iii)(a), (b) and (c) shall not prevent or otherwise affect a determination that the underlying cause of any such change, decline or failure referred to therein is, or would reasonably be expected to be, a Material Adverse Effect); or (iv) any regulatory, preclinical or clinical, competitive, pricing, reimbursement or manufacturing Effects relating to or affecting any product of a Party, in each case, not involving any wrongdoing by the Party or any of its Affiliates or representatives (including (1) any suspension, rejection, refusal or, or request to refile any application, filing or approval or launching commercial sales of any product, (2) any regulatory actions, requests, recommendations, determinations or decisions of any Governmental Authority related to any product of the Party, (3) any delay, hold or termination of any preclinical or clinical study, trial or test related to any product of the Party, (4) any results, outcomes, data, adverse events, side effects or safety observations arising from any preclinical or clinical studies, trials or tests related to any product of the Party, (5) approval by the FDA or another Regulatory Authority, market entry or threatened market entry of any product competitive with a product of the Party, (6) any production or supply chain disruption affecting the manufacture of any product of the Party, and (7) any recommendations, statements, decisions or other pronouncements made, published or proposed by professional medical organizations, payors, Regulatory Authorities or representatives of any of the foregoing related to any product of the Party); provided, further, however, that any Effect referred to in clause (i) or clause (ii)(a), (c) or (d) may be taken into account in determining whether there has been, or would reasonably be expected to be, a Material Adverse Effect to the extent such Effect has a disproportionate adverse effect on the business, assets, results of operations or financial condition of the Party and its subsidiaries, taken as a whole, as compared to other companies in the industry in which the Party and its subsidiaries operate;
“Order”	shall mean any injunction, order, judgment, award or decree by any judicial or arbitration tribunal or any Regulatory Authority;
“Organizational Documents”	shall mean, with respect to any Person, the certificate of incorporation, articles of association (including the Articles of Association), by-laws, organizational regulations or similar organizational documents of such Person;
“Orion”	shall mean the Orion Visual Cortical Prosthesis System;
“Orion Assets”	shall mean the assets relating to Orion which shall be transferred to a newly formed subsidiary of the Company pursuant to the Separation and Distribution Agreement;
“Owned IP Rights”	shall mean all Intellectual Property Rights owned or purported to be owned by a Party that is used in the business of the party as presently conducted;
“Party”	shall have the meaning set forth in the Preamble;
“Permit”	shall mean all permits, licences, franchises, variances, exemptions, orders and other authorizations, consents and approvals;
“Permitted Alternative Agreement”	shall have the meaning set forth in Section 4.4.1;
“Permitted Liens”	shall mean (a) any Liens for current Taxes not yet due and payable or for Taxes that are being contested in good faith and, in each case, for which adequate reserves have been made on the Company Balance Sheet or the Pixium Balance Sheet, as applicable; (b) minor liens that have arisen in the ordinary course of business and that do not (in any case or in the aggregate) materially detract from the value of the assets or properties subject thereto or materially impair the operations of the Company or Pixium, as applicable; (c) statutory liens to secure obligations to landlords, lessors or renters under leases or rental agreements; (d) deposits or pledges made in connection with, or to secure payment of, workers’ compensation, unemployment insurance or similar programs mandated by Law; (e) non-exclusive licenses of Intellectual Property Rights granted by the Company or Pixium, as applicable, in the ordinary course of business and that do not (in any case or in the aggregate) materially detract from the value of the Intellectual Property Rights subject thereto; and (f) statutory liens in favor of carriers, warehousemen, mechanics and materialmen, to secure claims for labor, materials or supplies.
“Person”	shall mean any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, governmental or regulatory body or any other entity (whether such entity has or has not a legal personality);
“Pre-Closing Period”	shall have the meaning set forth in Section 11.1.1;


“Pixium”	shall have the meaning set forth in the Preamble;
“Pixium Balance Sheet”	shall have the meaning set forth in Section 10.8.2;
“Pixium Board”	shall have the meaning set forth in Recital (C);
“Pixium Disclosure Schedule”	shall mean the disclosure schedule delivered by Pixium to the Company prior to the execution of this Agreement;
“Pixium Interim Financial Statements”	shall have the meaning set forth in Section 11.5;
“Pixium Public Documents”	shall have the meaning set forth in Section 10.7.3;
“Pixium Share”	shall mean the shares comprising the share capital of Pixium;
“Pixium Securities”	shall mean all the Securities issued by Pixium;
“Pixium Shareholder Matters”	shall have the meaning set forth in Section 3.4.1;
“Preamble”	shall mean the preamble to this Agreement;
“Proxy Statement”	means the proxy statement to be sent to the Company’s shareholders in connection with the Company Shareholders’ Meeting;

“Regulatory Authority”	shall mean any and all relevant French, European Union, American and other foreign regulatory commissions, boards, agencies, organizations, courts, tribunal, stock exchange authorities, governmental entity or body or authorities, in each case only to the extent that such authority has authority and jurisdiction in the particular context;
“Required Company Shareholder Vote”	shall have the meaning set forth in Section 10.3.3;
“Required Pixium Shareholder Vote”	shall have the meaning set forth in Section 10.3.2;
“Sarbanes Oxley Act”	shall mean the Sarbanes-Oxley Act of 2002;
“SEC”	shall mean the U.S. Securities and Exchange Commission;
“Second Sight Board”	shall have the meaning set forth in Recital (B)(iv);
“Second Sight Shares”	shall mean the issued and outstanding shares of Second Sight;
“Securities”	shall mean (i) any security, issued or to be issued, by an Entity, which may entitle its holder, directly or indirectly, immediately or in the future, to a portion of the share capital, profits, liquidation profits or voting rights of such Entity or of another Entity (including any share, warrants, convertible bonds, bonds with attached warrants, or bonds redeemable into shares), (ii) any preferential subscription or allotment rights relating to an issuance of such securities, or (iii) any division of such securities, including into bare ownership or usufruct;


“Securities Act”	shall mean the United States Securities Act of 1933, as amended;
“Section”	shall mean a section of this Agreement;
“Sensitive Data”	shall have the meaning set forth in Section 10.13.5;
“Separation and Distribution Agreement”	shall mean the separation and distribution agreement to be entered into by the Company and its newly formed subsidiary in connection with the Spin Off, in the form attached as Schedule 5;
“Spin-Off”	shall have the meaning set forth in Recital (B);
“Superior Proposal”	shall mean an unsolicited bona fide written proposal for an Acquisition Transaction (that has not been withdrawn and that did not result from a breach of the provisions of Article 4, that: (i) is reasonably likely to be consummated on the terms and conditions contemplated thereby and (ii) is not subject to a financing condition, (iii) is on terms and conditions that the Second Sight Board determines in good faith, based on such other matters that it deems relevant, as well as any written offer by Pixium to amend the terms of this Agreement (the “Proposed Pixium Amendments”), and following consultation with its outside legal counsel and outside financial advisors, are more favorable, from a financial point of view, to the Company’s shareholders than the terms of the Transaction, as amended by the Proposed Pixium Amendments.
“Tax”	shall mean any and all U.S. federal, state, local or non-U.S. taxes, fees, levies, duties, tariffs, imposts, and other similar charges of any kind imposed by any Regulatory Authority, including but not limited to taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs’ duties, tariffs, and similar charges or assessments of any kind whatsoever, together with any interest or penalty, addition to tax or additional amount imposed by any Regulatory Authority;
“Termination Date”	shall have the meaning set forth in Section 9.3;
“Termination Fee”	shall mean an amount equal to all reasonable and documented out-of-pocket fees and expenses incurred or paid by or on behalf of a Party receiving payment of the Termination Fee in connection with the Transaction, or related to the authorization, preparation, negotiation, execution and performance of this Agreement, in each case including all reasonable and documented fees and expenses of law firms, commercial banks, investment banking firms, financing sources, accountants, experts and consultants to such Party; provided that the aggregate amount of such fees and expenses reimbursable as a Termination Fee shall not exceed US$1,000,000; provided further that in no event shall a Party be required to pay more than one termination fee under this Agreement, including, without limitation, Termination Fee and termination fee set forth in Section 9.9.3;
“Transaction”	shall have the meaning set forth in Recital (B);


“Transaction Litigation”	shall mean any claim, demand or Action (including any class action or derivative litigation) asserted, commenced or threatened by, on behalf of or in the name of, against or otherwise involving the Party, the Party’s board of directors, any committee thereof and/or any of the Party’s directors or officers relating directly or indirectly to this Agreement, the Transaction (including any such claim, demand or Action based on allegations that the Party’s entry into this Agreement or the terms and conditions of this Agreement or the Transaction constituted a breach of the fiduciary duties of any member of the board of directors of the Party or any officer of the Party).