Ocular Therapeutix, Inc S-3, filed Nov 7, 2023

Ocular Therapeutix, Inc (OCUL)

S-3 2023-11-07

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	Large accelerated filer ☐			Accelerated filer ☐
	Non-accelerated filer ☒			Smaller reporting company ☒
				Emerging growth company ☐

	ABOUT THIS PROSPECTUS					1
	WHERE YOU CAN FIND MORE INFORMATION					2
	INCORPORATION BY REFERENCE					2
	FORWARD-LOOKING STATEMENTS					3
	RISK FACTORS					5
	OCULAR THERAPEUTIX, INC.					6
	USE OF PROCEEDS					7
	DESCRIPTION OF DEBT SECURITIES					8
	DESCRIPTION OF CAPITAL STOCK					17
	DESCRIPTION OF DEPOSITARY SHARES					25
	DESCRIPTION OF WARRANTS					28
	DESCRIPTION OF UNITS					30
	FORMS OF SECURITIES					31
	PLAN OF DISTRIBUTION					33
	LEGAL MATTERS					35
	EXPERTS					35

	Page
PROSPECTUS
ABOUT THIS PROSPECTUS		SA-1
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS		SA-3
PROSPECTUS SUMMARY		SA-5
RISK FACTORS		SA-8
USE OF PROCEEDS		SA-10
DIVIDEND POLICY		SA-11
DILUTION		SA-12
DESCRIPTION OF CAPITAL STOCK		SA-13
PLAN OF DISTRIBUTION		SA-18
LEGAL MATTERS		SA-19
EXPERTS		SA-19
WHERE YOU CAN FIND MORE INFORMATION		SA-20
INCORPORATION BY REFERENCE		SA-20

Assumed public offering price per share			$	2.76
Historical net tangible book value per share as of September 30, 2023	$	0.10
Increase in as adjusted net tangible book value per share attributable to new investors purchasing shares in this offering		0.81
As adjusted net tangible book value per share after this offering				0.91
Dilution per share to new investors purchasing shares in this offering			$	1.85

SEC registration fee	$	1,460.76*
Printing and engraving		(1)
Accounting services		(1)
Legal fees of registrant’s counsel		(1)
Transfer agent’s, trustee’s and depositary’s fees and expenses		(1)
Miscellaneous		(1)
Total	$	(1)

	Exhibit No.			Description
	1.1*			Form of Underwriting Agreement
	1.2			Open Market Sale AgreementSM, dated as of August 9, 2021, by and between Ocular Therapeutix, Inc. and Jefferies LLC (incorporated by reference to Exhibit 1.1 to the Registrant’s Current Report on Form 8-K (File No. 001-36554) filed with the SEC on August 9, 2021)
	4.1			Restated Certificate of Incorporation of the Registrant, as amended (incorporated by reference to Exhibit 3.1 to the Registrant’s Quarterly Report on Form 10-Q (File No. 001-36554) filed with the SEC on August 9, 2021)
	4.2			Amended and Restated By-laws of the Registrant (incorporated by reference to Exhibit 3.2 to the Registrant’s Current Report on Form 8-K (File No. 001-36554) filed with the SEC on July 30, 2014)
	4.3			Form of Senior Indenture
	4.4			Form of Subordinated Indenture
	4.5			Form of Senior Note
	4.6			Form of Subordinated Note
	4.7*			Form of Deposit Agreement
	4.8*			Form of Warrant Agreement
	4.9*			Form of Unit Agreement
	4.10*			Form of Pre-Funded Warrant
	5.1			Opinion of Wilmer Cutler Pickering Hale and Dorr LLP
	23.1			Consent of PricewaterhouseCoopers LLP, an independent registered public accounting firm
	23.2			Consent of Wilmer Cutler Pickering Hale and Dorr LLP (included in Exhibit 5.1)
	24.1			Powers of Attorney (included in the signature pages to the Registration Statement)
	25.1**			The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Senior Indenture
	25.2**			The Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Subordinated Indenture
	107			Filing Fee Table

Signature	Title	Date
/s/ Antony Mattessich Antony Mattessich	President and Chief Executive Officer, and Director (Principal Executive Officer)	November 7, 2023
/s/ Donald Notman Donald Notman	Chief Financial Officer (Principal Financial and Accounting Officer)	November 7, 2023
/s/ Charles Warden Charles Warden	Chairperson of the Board	November 7, 2023
/s/ Adrienne Graves Adrienne Graves, Ph.D,	Director	November 7, 2023
/s/ Jeffrey S. Heier Jeffrey S. Heier, M.D.	Director	November 7, 2023
/s/ Seung Suh Hong, Seung Suh Hong, Ph.D.	Director	November 7, 2023

Section of Trust Indenture Act of 1939, as amended		Section of Indenture
310(a)		6.09
310(b)		6.08
		6.10
310(c)		Inapplicable
311(a)		6.13
311(b)		6.13
311(c)		Inapplicable
312(a)		4.01 4.04
312(b)		4.04(c)
312(c)		4.04(c)
313(a)		4.03
313(b)		4.03
313(c)		4.03
313(d)		4.03
314(a)		4.02
314(b)		Inapplicable
314(c)		2.04 8.04 9.01(c) 10.01(b) 11.05
314(d)		Inapplicable
314(e)		11.05
314(f)		Inapplicable
315(a)		6.01 6.02
315(b)		5.11
315(c)		6.01
315(d)		6.01
		6.02
315(e)		5.12
316(a)		5.09 5.10
		7.04
316(b)		5.06 5.10
316(c)		7.02
317(a)		5.04
317(b)		3.04
318(a)		11.07

		PAGE
ARTICLE 1 DEFINITIONS		1
Section 1.01	Certain Terms Defined	1

ARTICLE 2 SECURITIES		7
Section 2.01	Forms Generally	7
Section 2.02	Form of Trustee’s Certificate of Authentication	7
Section 2.03	Amount Unlimited; Issuable in Series	7
Section 2.04	Authentication and Delivery of Securities	10
Section 2.05	Execution of Securities	11
Section 2.06	Certificate of Authentication	12
Section 2.07	Denomination and Date of Securities; Payments of Interest	12
Section 2.08	Registration, Transfer and Exchange	12
Section 2.09	Mutilated, Defaced, Destroyed, Lost and Stolen Securities	15
Section 2.10	Cancellation of Securities; Destruction Thereof	15
Section 2.11	Temporary Securities	16
Section 2.12	CUSIP Numbers	16

ARTICLE 3 COVENANTS OF THE ISSUER		16
Section 3.01	Payment of Principal and Interest	16
Section 3.02	Offices for Payments, Etc.	17
Section 3.03	Appointment to Fill a Vacancy in Office of Trustee	17
Section 3.04	Paying Agents	17
Section 3.05	Written Statement to Trustee	18

ARTICLE 4 SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE		19
Section 4.01	Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders	19
Section 4.02	Reports by the Issuer	19
Section 4.03	Reports by the Trustee	19
Section 4.04	Preservation of Information; Communication with Securityholders	19

ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT		20
Section 5.01	Event of Default Defined; Acceleration of Maturity; Waiver of Default	20
Section 5.02	Collection of Debt by Trustee; Trustee May Prove Debt	21
Section 5.03	Application of Proceeds	24
Section 5.04	Suits for Enforcement	24
Section 5.05	Restoration of Rights on Abandonment of Proceedings	25
Section 5.06	Limitations on Suits by Securityholders	25
Section 5.07	Unconditional Right of Securityholders to Institute Certain Suits	25

Section 5.08	Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	26
Section 5.09	Control by Holders of Securities	26
Section 5.10	Waiver of Past Defaults	26
Section 5.11	Trustee to Give Notice of Default	27
Section 5.12	Right of Court to Require Filing of Undertaking to Pay Costs	27

ARTICLE 6 CONCERNING THE TRUSTEE		27
Section 6.01	Duties and Responsibilities of the Trustee; During Default; Prior to Default	27
Section 6.02	Certain Rights of the Trustee	28
Section 6.03	Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof	30
Section 6.04	Trustee and Agents May Hold Securities; Collections, Etc.	30
Section 6.05	Moneys Held by Trustee	30
Section 6.06	Compensation and Indemnification of Trustee and Its Prior Claim	30
Section 6.07	Right of Trustee to Rely on Officer’s Certificate, Etc.	31
Section 6.08	Disqualification; Conflicting Interests	31
Section 6.09	Persons Eligible for Appointment as Trustee	31
Section 6.10	Resignation and Removal; Appointment of Successor Trustee	31
Section 6.11	Acceptance of Appointment by Successor Trustee	32
Section 6.12	Merger, Conversion, Consolidation or Succession to Business of Trustee	33
Section 6.13	Preferential Collection of Claims Against the Issuer	34

ARTICLE 7 CONCERNING THE SECURITYHOLDERS		34
Section 7.01	Evidence of Action Taken by Securityholders	34
Section 7.02	Proof of Execution of Instruments and of Holding of Securities	34
Section 7.03	Holders to Be Treated as Owners	35
Section 7.04	Securities Owned by Issuer Deemed Not Outstanding	35
Section 7.05	Right of Revocation of Action Taken	35

ARTICLE 8 SUPPLEMENTAL INDENTURES		36
Section 8.01	Supplemental Indentures Without Consent of Securityholders	36
Section 8.02	Supplemental Indentures With Consent of Securityholders	37
Section 8.03	Effect of Supplemental Indenture	39
Section 8.04	Documents to Be Given to Trustee	39
Section 8.05	Notation on Securities in Respect of Supplemental Indentures	39

ARTICLE 9 CONSOLIDATION, MERGER, SALE OR CONVEYANCE		39
Section 9.01	Issuer May Consolidate, Etc., on Certain Terms	39
Section 9.02	Successor Issuer Substituted	40

ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS		40
Section 10.01	Satisfaction and Discharge of Indenture; Defeasance	40

Section 10.02	Application by Trustee of Funds Deposited for Payment of Securities	45
Section 10.03	Repayment of Moneys Held by Paying Agent	45
Section 10.04	Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years	45
Section 10.05	Indemnity for U.S. Government Obligations and Foreign Government Obligations	45

ARTICLE 11 MISCELLANEOUS PROVISIONS		45
Section 11.01	No Recourse	45
Section 11.02	Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities	46
Section 11.03	Successors and Assigns of Issuer Bound by Indenture	46
Section 11.04	Notices and Demands on Issuer, Trustee and Holders of Securities	46
Section 11.05	Officer’s Certificates and Opinions of Counsel; Statements to Be Contained Therein	47
Section 11.06	Payments Due on Saturdays, Sundays and Holidays	48
Section 11.07	Conflict of Any Provision of Indenture With Trust Indenture Act of 1939	48
Section 11.08	New York Law to Govern	48
Section 11.09	Counterparts	48
Section 11.10	Effect of Headings	48
Section 11.11	Actions by Successor	48
Section 11.12	Severability	48

ARTICLE 12 REDEMPTION OF SECURITIES AND SINKING FUNDS		49
Section 12.01	Applicability of Article	49
Section 12.02	Notice of Redemption; Partial Redemptions	49
Section 12.03	Payment of Securities Called for Redemption	50
Section 12.04	Exclusion of Certain Securities from Eligibility for Selection for Redemption	51
Section 12.05	Mandatory and Optional Sinking Funds	51

	OCULAR THERAPEUTIX, INC.

	By:
		Name:
		Title:

	Attest:

	By:
		Name:
		Title:

	____________, Trustee

	By:
		Name:
		Title:

Section of Trust Indenture Act of 1939, as amended		Section of Indenture
310(a)		6.09
310(b)		6.08 6.10
310(c)		Inapplicable
311(a)		6.13
311(b)		6.13
311(c)		Inapplicable
312(a)		4.01 4.04
312(b)		4.04(c)
312(c)		4.04(c)
313(a)		4.03
313(b)		4.03
313(c)		4.03
313(d)		4.03
314(a)		4.02
314(b)		Inapplicable
314(c)		2.04 8.04 9.01(c) 10.01(b) 11.05
314(d)		Inapplicable
314(e)		11.05
314(f)		Inapplicable
315(a)		6.01 6.02
315(b)		5.11
315(c)		6.01
315(d)		6.01
		6.02
315(e)		5.12
316(a)		5.09 5.10 7.04
316(b)		5.06 5.10
316(c)		7.02
317(a)		5.04
317(b)		3.04
318(a)		11.07

		Page
ARTICLE 1 DEFINITIONS		1
Section 1.01	Certain Terms Defined	1

ARTICLE 2 SECURITIES		7
Section 2.01	Forms Generally	7
Section 2.02	Form of Trustee’s Certificate of Authentication	7
Section 2.03	Amount Unlimited; Issuable in Series	8
Section 2.04	Authentication and Delivery of Securities	10
Section 2.05	Execution of Securities	12
Section 2.06	Certificate of Authentication	12
Section 2.07	Denomination and Date of Securities; Payments of Interest	12
Section 2.08	Registration, Transfer and Exchange	13
Section 2.09	Mutilated, Defaced, Destroyed, Lost and Stolen Securities	15
Section 2.10	Cancellation of Securities; Destruction Thereof	16
Section 2.11	Temporary Securities	16
Section 2.12	CUSIP Numbers	16

ARTICLE 3 COVENANTS OF THE ISSUER		17
Section 3.01	Payment of Principal and Interest	17
Section 3.02	Offices for Payments, Etc.	17
Section 3.03	Appointment to Fill a Vacancy in Office of Trustee	17
Section 3.04	Paying Agents	18
Section 3.05	Written Statement to Trustee	18

ARTICLE 4 SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE		19
Section 4.01	Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders	19
Section 4.02	Reports by the Issuer	19
Section 4.03	Reports by the Trustee	19
Section 4.04	Preservation of Information; Communication with Securityholders	19

ARTICLE 5 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT		20
Section 5.01	Event of Default Defined; Acceleration of Maturity; Waiver of Default	20
Section 5.02	Collection of Debt by Trustee; Trustee May Prove Debt	22
Section 5.03	Application of Proceeds	24
Section 5.04	Suits for Enforcement	24
Section 5.05	Restoration of Rights on Abandonment of Proceedings	24
Section 5.06	Limitations on Suits by Securityholders	25
Section 5.07	Unconditional Right of Securityholders to Institute Certain Suits	25
Section 5.08	Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default	26

Dated:			Signed:
				(Signed exactly as name appears on the other side of this Security)

Signature
Guarantee:
	Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee)

Very truly yours,

/s/ Wilmer Cutler Pickering Hale and Dorr LLP
WILMER CUTLER PICKERING HALE AND DORR LLP