S-1

As filed with the Securities and Exchange Commission on May 3, 2016
Registration No. 333-               

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

Under

The Securities Act of 1933

TEARLAB CORPORATION

(Exact name of Registrant as specified in its charter)

Delaware	3841	59-343-4771
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

9980 Huennekens St., Suite 100

San Diego, CA 92121

(858) 455-6006

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

	Wes Brazell Chief Financial Officer TearLab Corp. 9980 Huennekens St., Suite 100 San Diego, CA 92121 (858) 455-6006
(Name, address, including zip code, and telephone number, including area code, of agent for service)

	Copies to:
Martin J. Waters Daniel Horwood Wilson Sonsini Goodrich & Rosati Professional Corporation 12235 El Camino Real, Suite 200 San Diego, CA 92130 (858) 350-2300	Wes Brazell Chief Financial Officer TearLab Corp. 9980 Huennekens St., Suite 100 San Diego, CA 92121 (858) 455-6006	Joseph A. Smith Ellenoff Grossman & Schole LLP 1345 Avenue of the Americas New York, NY 10105-0302 (212) 370-1300

Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.

If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended, check the following box. [X]

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [X]

If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [  ]

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [  ]

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 [  ]	Accelerated filer [X]
Non-accelerated filer [  ] (do not check if a smaller reporting company)	Smaller reporting company [   ]

CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price (1)		Amount of Registration Fee (2)
Class A Units consisting of:
(i)Common Stock $0.001 par value
(ii)Warrants to purchase Common Stock
Class B Units consisting of:
(i)Series A Convertible Preferred Stock
(ii)Warrants to purchase Common Stock
Common Stock issuable upon conversion of Series A Convertible Preferred Stock
Common Stock issuable upon exercise of Warrants to purchase Common Stock
Placement agent’s Warrants to purchase Common Stock
Shares of Common Stock issuable upon exercise of placement agent’s Warrants
Total	$	2,250,000	$	227

(1) Represents only the increase in aggregate offering price. The registrant previously registered securities with an aggregate offering price not to exceed $15,000,000 on a Registration Statement on Form S-1 (File No- 333-210326) as amended (the “Registration Statement”), which was declared effective by the Securities and Exchange Commission on May 3, 2016. In accordance with Rule 462(b) under the Securities Act of 1933, as amended (the “Securities Act”), an additional amount of securities having a proposed maximum aggregate offering price of no more than 20% of the maximum aggregate offering price of the securities eligible to be sold under the Registration Statement, or $2,250,000, is hereby registered.

(2) Calculated pursuant to Rule 457(o) under the Securities Act.

This Registration Statement shall become effective upon filing with the Securities and Exchange Commission in accordance with Rule 462(b) under the Securities Act of 1933, as amended.

EXPLANATORY NOTE AND INCORPORATION BY REFERENCE

Pursuant to Rule 462(b) under the Securities Act of 1933, as amended, TearLab Corporation, a Delaware corporation, is filing this registration statement with the Securities and Exchange Commission, or the SEC. This registration statement relates to the public offering of securities contemplated by the Registration Statement on Form S-1, as amended (File No. 333-210326), which we originally filed on March 22, 2016, or the Registration Statement, and which the SEC declared effective on May 3, 2016.

We are filing this registration statement for the sole purpose of increasing the aggregate offering price by $2,250,000. This represents a price that represents no more than 20% of the maximum aggregate offering price set forth in the Calculation of Registration Fee table contained in the Registration Statement. The information set forth in the Registration Statement is incorporated by reference in this filing.

The required opinions and consents are listed on the Exhibit Index attached hereto and filed herewith.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Diego, State of California, on May 3, 2016.

TEARLAB CORP.
By:	/s/ Joseph Jensen
	Joseph Jensen
	Chief Executive Officer

Signature	Title	Date
/s/Joseph Jensen	Chief Executive Officer and Secretary	May 3, 2016
Joseph Jensen	(principal executive officer)
/s/ Wes Brazell	Chief Financial Officer
Wes Brazell	(principal financial and accounting officer)	May 3, 2016
*	Chairman of the Board
Elias Vamvakas		May 3, 2016
*	Director
Anthony Altig		May 3, 2016
*	Director
Thomas N. Davidson, Jr.		May 3, 2016
*	Director
Adrienne L. Graves		May 3, 2016
*	Director
Joseph S. Jensen		May 3, 2016
*	Director
Richard L. Lindstrom, M.D.		May 3, 2016
*	Director
Donald Rindell		May 3, 2016
*	Director
Paul Karpecki		May 3, 2016
*	Director
Brock Wright		May 3, 2016

*- By:	/s/ Joseph Jensen
Joseph Jensen
Attorney-in-fact

1

EXHIBIT INDEX

Exhibit Number	Exhibit Description
5.1	Opinion of Wilson Sonsini Goodrich & Rosati, Professional Corporation
23.1	Consent of Ernst & Young, LLP, Independent Registered Public Accounting Firm.
23.2	Consent of Mayer Hoffman McCann, P.C., Independent Registered Public Accounting Firm
23.3	Consent of Wilson Sonsini Goodrich & Rosati, Professional Corporation (included in Exhibit 5.1)

EX-5.1

 

May 3, 2016

TearLab Corporation

9980 Huennekens St., Suite 100

San Diego, California 92121

RE: Securities Registered under Registration Statement on Form S-1 (Reg. No. 333-210326) and Registration Statement filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended.

Ladies and Gentlemen:

We have acted as counsel to TearLab Corporation, a Delaware corporation (the “Company”), in connection with the filing of registration statement on Form S-1 (the “Registration Statement”), under Rule 462(b) of the Securities Act of 1933, as amended (the “Act”) relating to the proposed issuance and sale by the Company (the “Offering”) of up to $2,250,000 of: (i) Class A Units consisting of one share of its common stock, par value $0.001 per share (“Shares”), a Series A warrant to purchase Common Stock in accordance with its terms (the “Series A Warrants”) and (ii) Class B Units consisting of Series A Convertible Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”) and Series A Warrants based on the number of Shares into which Series A Preferred Stock is convertible. The Registration Statement incorporates by reference the Registration Statement on Form S-1 (No. 333-210326) (the “Prior Registration Statement”), which was declared effective on May 3, 2016, including the prospectus which forms part of the Registration Statement. The Securities are being sold pursuant to a Placement Agent Agreement, (the “Placement Agent Agreement”), between the Company and the placement agent named therein.

The Shares, Series A Preferred Stock, and Series A Warrants are, collectively, referred to herein as the “Securities”.

In rendering the opinions set forth below, we have assumed that (i) all information contained in all documents reviewed by us is true and correct; (ii) all signatures on all documents examined by us are genuine; (iii) all documents submitted to us as originals are authentic and all documents submitted to us as copies conform to the originals of those documents; (iv) each natural person signing any document reviewed by us had the legal capacity to do so; and (v) the certificates representing the Securities will be duly executed and delivered.

We have examined the Registration Statement, including the exhibits thereto, and such other documents, corporate records, and instruments and have examined such laws and regulations as we have deemed necessary for purposes of rendering the opinions set forth herein.

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san diego    san francisco    seattle    shanghai    washington, dc    wilmington, de

 

The opinions expressed below are limited to the laws of the State of New York and the Delaware General Corporation Law.

Our opinions below are qualified to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent conveyance or similar laws affecting the rights of creditors generally, and (ii) by general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or at equity. Furthermore, we express no opinion as to the availability of any equitable or specific remedy, or as to the successful assertion of any equitable defense, upon any breach of any agreements or obligations referred to therein, or any other matters, inasmuch as the availability of such remedies or defenses may be subject to the discretion of a court. We express no opinion as to the enforceability of any indemnification provision, or as to the enforceability of any provision that may be deemed to constitute liquidated damages.

Based upon and subject to the foregoing, we are of the opinion (i) the Shares have been duly authorized and, when issued and delivered pursuant to the Placement Agent Agreement against payment of the consideration set forth therein, will be validly issued, fully paid and non-assessable, (ii) the Series A Preferred Stock has been authorized by all necessary corporate action of the Company and, when issued and delivered pursuant to the Placement Agent Agreement against payment of the consideration set forth therein, will be validly issued, fully paid and non-assessable, (iii) provided that the Series A Warrants have been duly executed and delivered by the Company and duly delivered to the purchasers thereof against payment therefor, then the Series A Warrants, when issued and sold pursuant to the Placement Agent Agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, (iv) the Shares issuable upon the conversion of the Series A Preferred Stock have been duly authorized for issuance and, when issued in accordance with the provisions of Series A Preferred Stock and the Certificate of Designation, will be validly issued, fully paid and non-assessable, (v) the Class A Units, when issued and sold pursuant to the Placement Agent Agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, and (vi) the Class B Units, when issued and sold pursuant to the Placement Agent Agreement, will be valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms.

We consent to the use of this opinion as an exhibit to the Registration Statement, and we consent to the reference of our name under the caption “Legal Matters” in the prospectus forming part of the Prior Registration Statement, which is incorporated by reference into the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Sections 7 and 11 of the Securities Act or the rules and regulations of the Commission thereunder.

This opinion letter is given to you solely for use in connection with the offer and sale of the Securities while the Registration Statement is in effect and is not to be relied upon for any other purpose. Our opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters relating to the Company, the Securities or the Registration Statement.

Very truly yours,

WILSON SONSINI GOODRICH & ROSATI

Professional Corporation

/s/ Wilson Sonsini Goodrich & Rosati

EX-23.1

Exhibit 23.1

Consent of Independent Registered Public Accounting Firm

We consent to the incorporation by reference in the Registration Statement on Form S-1 filed pursuant to Rule 462(b) of the Securities Act of 1933 of the reference to our firm under the caption “Experts” and to the incorporation by reference of our report dated March 13, 2015, with respect to the consolidated financial statements and schedule of TearLab Corp. incorporated by reference in the Registration Statement (Form S-1 No. 333-210326) and related Prospectus of TearLab Corp. for the registration of its Class A and B Units.

/s/ Ernst & Young LLP

San Diego, CA

May 3, 2016

EX-23.2

Exhibit 23.2

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

As independent registered public accountants, we hereby consent to the incorporation by reference in this Registration Statement filed pursuant to Rule 462(b) on Form S-1 MEF and related Prospectus of our reports dated March 9, 2016, relating to the financial statements of Tearlab Corp., (which report includes an explanatory paragraph relating to the uncertainty of the Company’s ability to continue as a going concern) and the effectiveness of Tearlab Corp’s internal control over financial reporting, as of December 31, 2015, and to the reference to us under the caption “Experts” in Amendment No. 2 to the Registration Statement on Form S-1 and related Prospectus, incorporated by reference into this Registration Statement.

/s/ Mayer Hoffman McCann P.C.

San Diego, California

May 3, 2016