As filed with the Securities and Exchange Commission on January 25, 2019
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
EYENOVIA, INC.
(Exact name of registrant as specified in its charter)
| 47-1178401 | |||||
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification Number) |
295 Madison Avenue, Suite 2400
New York, New York 10017
Telephone: (917) 289-1117
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Tsontcho Ianchulev
Chief Executive Officer
295 Madison Avenue, Suite 2400
New York, New York 10017
Telephone: (917) 289-1117
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Donald R. Reynolds
S. Halle Vakani
Lorna A. Knick
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
Telephone: (919) 781-4000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
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, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please 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(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 registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box.☐
If this Form is a post-effective amendment filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer | Accelerated filer | |||||||
| Non-accelerated filer | Smaller reporting company | |||||||
| Emerging growth company |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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| Title of Each Class of Securities to be Registered | | | | Amount to be Registered(1)(2) | | | | Proposed Maximum Offering Price Per Unit(1)(2)(3) | | | | Proposed Maximum Aggregate Offering Price(1)(2)(3) | | | | Amount of Registration Fee(4) | | ||||||||||||
| Common Stock, $0.0001 par value per share | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Preferred Stock, $0.0001 par value per share | | | | | | | | | | | | | | | | | | �� | | | | | | | | | | | |
| Debt Securities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Warrants | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Units | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Rights | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| Total | | | | | $ | 75,000,000 | | | | | | | 100% | | | | | | $ | 75,000,000 | | | | | | $ | 9,090 | | |
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| Title of each class of securities to be registered | Amount to be Registered(1) | Proposed Maximum Offering Price Per Share | Proposed Maximum Aggregate Offering Price(2) | Amount of Registration Fee | ||||||||||||
| Common stock, par value $0.0001 per share | 2,675,293 | $ | 2.8551 | $ | 7,638,095.28 | $ | 991.42 | |||||||||
| Common stock, par value $0.0001 per share, underlying Class A warrants | 1,337,659 | $ | 2.8551 | $ | 3,819,083.33 | $ | 495.72 | |||||||||
| Common stock, par value $0.0001 per share, underlying Class B warrants | 2,006,495 | $ | 2.8551 | $ | 5,728,643.55 | $ | 743.58 | |||||||||
| Total | 6,019,447 | $ | 17,185,822.16 | $ | 2,230.72 | |||||||||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”) the shares being registered hereunder include such indeterminate number of shares of common stock as may be issuable with respect to the shares being registered hereunder as a result of stock splits, stock dividends or similar transactions. |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) under the Securities Act. The price per share and aggregate offering price are based on the average of the high and low prices of the registrant’s common stock on April 16, 2020, as reported on the NASDAQ Capital Market. |
The registrant hereby amends this Registration Statementregistration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment whichthat specifically states that this Registration Statementregistration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statementregistration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. WeThe selling stockholders may not sell these securities or accept an offer to buy these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we areis not soliciting an offer to buy these securities in any statejurisdiction where the offer or sale is not permitted.
Subject to completion, dated January 25, 2019
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PRELIMINARY PROSPECTUS
6,019,447 Shares of
Common StockPreferred StockDebt SecuritiesWarrantsUnits and/orRights
This prospectus relates to the resale from time to time of up to $75,000,0002,675,293 shares of our common stock, and 1,337,659 shares of our common stock that are issuable upon the exercise of Class A warrants and 2,006,495 shares of our common stock that are issuable upon the exercise of Class B warrants (together, the “Warrants”) held by the selling stockholders named in this prospectus, including their transferees, pledgees, donees or successors, that were issued in connection with a private placement offering completed on March 24, 2020, or the Private Placement. We are registering these shares as required by the Registration Rights Agreement we entered into with the selling stockholders on March 23, 2020.
We are not selling any shares of common stock;stock and will not receive any proceeds from the sale of the shares under this prospectus. We have agreed to bear all of the expenses incurred in connection with the registration of these shares. The selling stockholders will pay or assume brokerage commissions and similar charges, if any, incurred for the sale of shares of preferred stock; debt securities; warrants; rights to purchaseour common stock, preferred stock, debt securities or units; and units that include any of these securities, in one or more offerings in amounts, at prices and on terms that we will determine atstock.
The selling stockholders may sell the time of offering.
Our common stock is listedtraded on the NasdaqNASDAQ Capital Market under the symbol “EYEN”. The“EYEN.” On April 20, 2020, the last reported salesales price of our common stock on January 22, 2019 was $2.91$3.25 per share. We recommend that you obtain current market quotations for
Investing in our common stock prior to making an investment decision.
Neither the Securities and Exchange Commission nor any other regulatory bodystate securities commission has approved or disapproved of these securities or passed upon the accuracyadequacy or adequacyaccuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2020.
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| Risk Factors | ||||||||
| Cautionary Note Regarding Forward-Looking Statements | ||||||||
| Use of Proceeds | ||||||||
| Selling Stockholders | 10 | |||||||
| Plan of Distribution | ||||||||
| Where You Can Find Additional Information | ||||||||
| Incorporation of |
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, utilizing a shelf“shelf” registration process. Under this shelf registration process, wethe selling stockholders named in this prospectus may offerfrom time to time sell shares of our common stock; shares of our preferred stock; debt securities; warrants for such securities; rights to purchase common stock preferred stock, debt securities or units; and units that include any of these securities, in one or more offerings, up to a total dollar amount of $75,000,000. offerings.
This prospectus provides you with a general description of the securities weshares of common stock the selling stockholders may offer. Each time we offer a type or seriesthe selling stockholders sell shares of securities underour common stock using this prospectus, to the extent necessary, we will provide a prospectus supplement that will contain specific information about the terms of that offering.
Neither we nor the information weselling stockholders have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus, any accompanying prospectus supplement or incorporatedin any related free-writing prospectus filed by referenceus with the SEC. Neither we nor the selling stockholders take any responsibility for, or provide any assurance as to the reliability of, any information other than the information in this prospectus, any accompanying prospectus supplement or in any related free-writing prospectus filed by us with the SEC. This prospectus and any accompanying prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the securities described in this prospectus or any accompanying prospectus supplement. No dealer, salespersonsupplement or other person is authorized to give any information or to represent anything not contained or incorporated by reference in this prospectus or any prospectus supplement. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell onlyor the solicitation of an offer to buy such securities offered hereby, but only underin any circumstances and in jurisdictions where itwhich such offer or solicitation is lawful to do so.unlawful. You should assume that the information appearing in this prospectus, or any prospectus supplement, the documents incorporated by reference and any related free-writing prospectus is accurate only as of their respective dates. Our business, financial condition, results of operations and prospects may have changed materially since those dates.
Unless the date on the front of the document and that any information we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference, regardless of the time of delivery of this prospectus or any sale of a security.
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This summary highlights certain information about us and this offering contained elsewhere in this prospectus, or incorporated by reference into this prospectus. It mightBecause it is only a summary, it does not contain all of the information that you should consider before investing in shares of our securities and it is importantqualified in its entirety by, and should be read in conjunction with, the more detailed information appearing elsewhere in this prospectus. Before you decide to you. Youinvest in our securities, you should read the entire prospectus carefully, including the section entitled “Risk Factors” beginning on page 6, and ourthe consolidated financial statements and the related notes included elsewhere in this prospectus or incorporated by reference into this prospectus, before making an investment decision to purchase shares of our securities.
Company Overview
We are a clinical stage ophthalmic biopharmaceutical company developing a pipeline of microdose therapeutics utilizing our patented piezo-print delivery technology, which we recently branded the Optejet™OptejetTM. Eyenovia aims to achieve clinical microdosing of next-generation formulations of well-established ophthalmic pharmaceutical agents using its high-precision targeted ocular delivery system, which has the potential to replace conventional eyedroppereye dropper delivery and improve safety, tolerability, patient compliance and topical delivery success for ophthalmic eye treatments. In the clinic, the Optejet has demonstrated the ability to horizontally deliver ophthalmic medication with a success rate significantly higher than that of traditional eye drops (~90% vs. ~ 50%). Eyenovia’s technology also can deliver up to a 75% reduction in ocular drug and preservative exposure with successful topical delivery that generally exceededand has demonstrated significant improvement in the efficacy of traditional eyedrop administration.therapeutic index in drugs used for mydriasis and IOP lowering through three Phase II and two Phase III trials. Using our proprietary delivery technology,the Optejet, Eyenovia is developing the next generation of smart ophthalmic therapies while targetingtherapeutics which target new indications for whichor new combinations where there are currently no comparable drug therapies approved by the U.S.United States Food and Drug Administration, (the “FDA”).or the FDA. Eyenovia’s microdose therapeutics follow the FDA-designated pharmaceutical registration and regulatory process. OurIts products are not classified by the FDA as drugs, and not medical devices or drug-device combination products.
On October 29, 2019, we announced that we were advancing the development of our MicroLine program for the improvement in the near vision in patients with presbyopia towards Phase III clinical studies. As a result of prioritizing MicroLine, in tandem with our MicroPine (progressive myopia) and MicroStat (mydriasis) programs, Eyenovia deferred development activities for its MicroProst (glaucoma and ocular hypertension) and MicroTears (red eye and itch relief lubrication) programs.
Presbyopia is a non-preventable, age-related hardening of the lens, which causes the gradual loss of the eye’s ability to focus on nearby objects. There currently are no known FDA-approved drugs for the improvement of near vision in patients with presbyopia, although other companies have related therapies in their pipeline. Eyenovia has planned Phase III VISION trials for MicroStat. MicroLine.
MicroPine is the Company’s first-in-class topical therapy for the treatment of progressive myopia, a back-of-the-eye ocular disease associated with pathologic axial elongation and sclero-retinal stretching affecting approximately five million people in the United States. In February 2019, the FDA accepted Eyenovia’s investigational new drug application, or IND, to initiate its Phase III registration trial of MicroPine (the CHAPERONE study) to reduce the progression of myopia in children. Eyenovia enrolled its first patient in the CHAPERONE study in June 2019.
MicroStat is aEyenovia’s fixed combination formulation of phenylephrine-tropicamide for mydriasis, (pupil dilation), designed to be a novel approach for the estimated 80 million office-based comprehensive and diabetic eye exams performed every year in the United States. Additionally, we have received clear feedback from the FDA regarding the requirements forEyenovia has completed its Phase III trials for our MicroPineMicroStat and MicroProst programs. MicroPine is a first-in-class topical therapy for the treatment of progressive myopia, a back-of-the-eye ocular disease associated with pathologic axial elongationannounced positive results from these studies, known as MIST-1 and sclero-retinal stretching affecting approximately 5 million people in the United States. MicroProst is a novel latanoprost formulation for lowering intraocular pressure (“IOP”) in patients with ocular hypertension (“OHT”), primary open angle glaucoma (“POAG”) and chronic angle closure glaucoma (“CACG”). MicroTears, our over-the-counter (“OTC”) product candidate for dry eye, will not require Phase III trials. We plan to proceed with registration activities for MicroTears this year.
Results from Eyenovia’s previous Phase II clinical trials with results from twohave been published in peer-reviewed literature and a third in press publication. In twoliterature. Two studies evaluating mydriatic agents demonstrated how the Optejet consistently delivered precision dosing at the volume of the eye’s natural tear film capacity of 6 – 86-8 µL, which reduced ocular and systemic drug and preservative exposure, while demonstrating pupil dilation comparable to conventional eyedropseye drops with fewer side effects. In the third study, weEyenovia evaluated usability, patient tolerability and intraocular pressureIOP lowering of microdosed latanoprost administered with the Optejet. In this study, eyes receiving microdosed latanoprost achieved IOP reduction consistent with published literature on eyedropslatanoprost eye drops, and administration of the medication was successful in a single attempt in more than 90% of cases. Based on the results from these clinical trials, we have advancedare advancing MicroLine, MicroPine, MicroStat, into Phase IIIand MicroProst (should we resume the program) utilizing the 505(b)(2) pathway and plan to do the same with MicroPine and MicroProst.pathway. Where possible, we also intend to use this pathway for future clinical trials in new indications with significant unmet needs.
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Corporate Information
We were organized as a corporation under the laws of the State of Florida on March 12, 2014 under the name “PGP Holdings V, Inc.” On May 5, 2014, we changed our name to Eyenovia, Inc. On October 6, 2014, we reincorporated in the State of Delaware by merging into Eyenovia, Inc., a Delaware corporation. Our principal executive office is located at 295 Madison Avenue, Suite 2400, New York, NY 10017, and our phone number is 917-289-1117. Our website ishttp://www.eyenoviabio.comwww.eyenovia.com. Information contained on, or that can be accessed through, our website is not incorporated by reference into this prospectus, doesand you should not constituteconsider information on our website to be part of this prospectusprospectus.
Implications of Being an Emerging Growth Company
As a company with less than $1.0 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. For so long as we remain an emerging growth company, we are permitted and shouldintend to rely on exemptions from specified disclosure requirements that are applicable to other public companies that are not be relied upon in connection with making any investment in our securities.
| · | being permitted to provide only two years of audited financial statements, in addition to any required unaudited interim financial statements, with correspondingly reduced “Management’s Discussion and Analysis of Financial Condition and Results of Operations” disclosure; |
| · | not being required to comply with the auditor attestation requirements in the assessment of our internal control over financial reporting; |
| · | not being required to comply with any requirement that may be adopted by the Public Company Accounting Oversight Board regarding mandatory audit firm rotation or a supplement to the auditor’s report providing additional information about the audit and the financial statements; |
| · | reduced disclosure obligations regarding executive compensation; and |
| · | exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. |
We may offer sharestake advantage of these provisions through 2023 or such earlier time that we are no longer an emerging growth company. We would cease to be an emerging growth company if we have more than $1.0 billion in annual revenues, have more than $700 million in market value of our common stock; sharescapital stock held by non-affiliates, or issue more than $1.0 billion of our preferred stock;non-convertible debt securities; warrants for such securities; rightsover a three-year period. We may choose to purchase common stock, preferred stock, debt securities or units; and units that include anytake advantage of these securities, with a total value of up to $75,000,000 from time to time under this prospectus at prices and on terms to be determined by market conditions at the time of any offering. This prospectus provides you with a general descriptionsome, but not all, of the securities we may offer. Each time we offer a type or seriesavailable exemptions. We have taken advantage of securities under this prospectus, we will provide a prospectus supplement that will describe the specific amounts, prices and other important terms of the securities.
In addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This provision allows an emerging growth company to delay the adoption of some accounting standards until those standards would otherwise apply to private companies. We have elected to avail ourselves of this exemption from new or revised accounting standards and, therefore, will fundamentally changenot be subject to the termssame new or revised accounting standards as other public companies that are set forthnot emerging growth companies.
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Up to 6,019,447 Shares of Common Stock
This prospectus relates to the resale by the selling stockholders identified in this prospectus or offer a security that is not registered and described in this prospectus at the time of its effectiveness.
| Common stock offered by the selling stockholders | 6,019,447 shares | |
| Common stock outstanding before the offering(1) | 19,776,019 shares | |
| Common stock to be outstanding after the offering | 23,120,173 shares | |
| Common stock Nasdaq Capital Market Symbol | EYEN |
| (1) | The number of shares of common stock outstanding is based on an aggregate of 19,776,019 shares outstanding as of March 31, 2020, and excludes: |
Private Placement of Common Shares and Warrants
On March 23, 2020, we entered into a Securities Purchase Agreement with various investors pursuant to which the Company agreed to sell approximately $6.0 million of units, with each unit consisting of (i) one share of our common stock, are entitled(ii) a Class A Warrant to one vote for eachpurchase 0.5 of a share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. Each election of directors by our stockholders will be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock are entitled to receive proportionately any dividends declared by our Board of Directors, subject to any preferential dividend rights of outstanding preferred stock.
The offering closed on March 24, 2020. At closing, we received net proceeds of approximately $5.3 million after deducting placement agent fees and offering expenses.
National Securities Corporation, a wholly owned subsidiary of National Holdings Corporation (NASDAQ: NHLD), acted as the sole Placement Agent for the offering.
In the offering, the Company issued an aggregate of 2,675,293 shares of Common Stock, Class A Warrants to purchase up to 1,337,659 shares of Common Stock and Class B Warrants to purchase up to 2,006,495 shares of Common Stock.
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The exercise price of the Class A Warrants issued to the public is $2.058 per share and the exercise price of the Class A Warrants issued to the directors and officers is $2.27 per share, both subject to adjustment for stock splits, stock dividends and similar corporate events. All the Class A Warrants terminate in one year after date of issuance and are entitled to receive proportionately all assets available for distribution to stockholdersexercisable at any time or times on or after the paymentdate of all debtsissuance.
The exercise price of the Class B Warrants issued to the public is $2.4696 per share and other liabilitiesthe exercise price of the Class B Warrants issued to the directors and officers is $2.724 per share, both subject to adjustment for stock splits, stock dividends and similar corporate events. All the prior rightsClass B Warrants terminate in five years after date of issuance. The Class B Warrants are exercisable at any time or times on or after the date of our outstanding preferred stock. Holders of our common stock have no preemptive, subscription, redemption or conversion rights. The rights, preferences and privileges of holders of our common stock are subjectissuance.
In connection with the offering, on March 23, 2020, the Company also entered into a Registration Rights Agreement with the investors. Pursuant to and may be adversely affected by the rights ofRegistration Rights Agreement, the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Use of Proceeds
The 2,675,293 shares of common stock and 3,344,154 shares of common stock issuable upon the exercise of currently outstanding warrants and that are being offered for resale by the selling stockholders will be sold for the accounts of the selling stockholders named in one or more series. this prospectus. As a result, all proceeds from the sales of the 6,019,447 shares of common stock offered for resale hereby will go to the selling stockholders and we will not receive any proceeds from the resale of those shares of common stock by the selling stockholders.
We may issue warrants independently or together with common stock, preferred stock and/or debt securities, andreceive up to a total of approximately $7.8 million in gross proceeds if all of the warrants may be attachedare exercised hereunder. However, as we are unable to predict the timing or separate from these securities. We will evidence each seriesamount of warrants by warrant certificates that we will issue under a separate agreement. We may enter into warrant agreements with a bank or trust company that we select to be our warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will incur all costs associated with this registration statement and prospectus.
Dividend Policy
We have never paid dividends on our capital stock and do not anticipate paying any dividends for the warrants.
Risk Factors
Investing in one or more series, as either senior or subordinated debt or as senior or subordinated convertible debt. The senior debt securities will rank equally with any
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Investing in our securitiescommon stock involves a high degree of risk. You should consider carefully the risks and uncertainties described in the section entitled “Risk Factors” contained in our most recently filed Annual Report on Form 10-K for the year ended December 31, 2019, as filed with the SEC in each caseon March 30, 2020. These risks and uncertainties are not the only risks and uncertainties we face. Additional risks and uncertainties not currently known to us, or that we currently view as these risk factors are amended or supplemented by subsequent Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, or Current Reports on Form 8-K that have been or will be incorporated by reference in this prospectus. The prospectus supplement relating to a particular offering of our securitiesimmaterial, may also discuss certain risks of investing in that offering. The risks set forth in any prospectus supplement and incorporated herein by reference are those which we believe are the material risks that we face. The occurrence ofimpair our business. If any of suchthe risks may materiallyor uncertainties described in our SEC filings or any additional risks and adversely affectuncertainties actually occur, our business, financial condition, results of operations and future prospects.cash flow could be materially and adversely affected. In such an event,that case, the markettrading price of our common stock could decline and you couldmight lose partall or allpart of your investment.
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This prospectus contains a number of forward-looking“forward-looking statements.” Specifically, all statements other than statements of historical facts included in this prospectus or incorporated by reference into this prospectus, regarding our financial position, business strategy development timelines and plans and objectives of management for future operations are forward-looking statements. These forward-looking statements are based on the beliefs of management at the time these statements were made, as well as assumptions made by and information currently available to management.management at that time. When used in this prospectus and the documents incorporated by reference herein, the words “anticipate”, “believe”, “estimate”, “expect”, “may”, “will”,“anticipate,” “believe,” “estimate,” “expect,” “may,” “might,” “will,” “continue” and “intend”,“intend,” and words or phrases of similar import, as they relate to our financial position, business strategy and plans, or objectives of management, are intended to identify forward-looking statements. These statements reflect our view, as of the date hereof, with respect to future events and are subject to risks, uncertainties and assumptions related to various factors.
You should understand that the following important factors, in addition to those discussed in our periodic reports to be filed with the SEC under the Securities Exchange Act of 1934, as amended, or the Exchange Act, could affect our future results and could cause those results to differ materially from those expressed in such forward-looking statements:
| · | impacts of and uncertainty related to COVID-19; |
| · | fluctuations in our financial results and stock price, particularly given market conditions and the potential economic impact of COVID-19; |
| · | our need to raise additional money to fund our operations for the next twelve months as a going concern; |
| · | risks of our clinical trials including, but not limited to, the costs, design, initiation and enrollment (which could be adversely impacted by COVID-19 and resulting social distancing), timing, progress and results of such trials; |
| · | our expectations related to the use of proceeds from our financings; |
| · | our expectations regarding our ability to fund our operating expenses and capital expenditure requirements with our cash on hand and proceeds from our financings; |
| · | our estimates regarding expenses, future revenue, timing of any future revenue, capital requirements and needs for additional financing; |
| · | the potential advantages of our reprioritized pipeline; |
| · | our estimates regarding cost savings related to our reprioritized pipeline; |
| · | our estimates regarding the potential market opportunity for our product candidates; |
| · | our ability to develop and implement our anticipated commercialization, marketing and manufacturing capabilities and strategies; |
| · | the potential advantages of our product candidates; |
| · | the rate and degree of market acceptance and clinical utility of our products; |
| · | our intellectual property position; |
| · | our ability to identify additional products, product candidates or technologies with significant commercial potential that are consistent with our commercial objectives; |
| · | our ability to attract and retain key personnel; |
| · | the impact of government laws and regulations; |
| · | our competitive position; |
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| · | developments relating to our competitors and our industry; |
| · | our ability to maintain and establish collaborations or obtain additional funding; |
| · | general or regional economic conditions; |
| · | changes in U.S. GAAP; and |
| · | changes in the legal, regulatory and legislative environments in the markets in which we operate, including impacts of United States government shut-downs on our ability to raise money and obtain regulatory approval for our products. |
Although we believe that our expectations (including those on which our forward-looking statements are based) are reasonable, we cannot assure you that those expectations will prove to be correct. Should any one or more of these risks or uncertainties materialize, or should any underlying assumptions prove incorrect, actual results may vary materially from those described in our forward-looking statements as anticipated, believed, estimated, expected or intended.
Except for our ongoing obligations to disclose material information under the federal securities laws, we undertake no obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or any other reason. All subsequent forward-looking statements attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to herein. In light of these risks, uncertainties and assumptions, the forward-looking events discussed in this prospectus and the documents incorporated by reference herein might not occur.
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We cannot assure you that weare not selling any common stock under this prospectus and will not receive any proceeds in connection with securities offered by us pursuant to this prospectus. Unless otherwise provided inof the applicable prospectus supplement, we intend to use the net proceeds from the sale of shares by the selling stockholders. We may receive up to a total of approximately $7.8 million in gross proceeds if all of the Warrants are exercised hereunder. However, as we are unable to predict the timing or amount of potential exercises of the Warrants, we have not allocated any proceeds of such exercises to any particular purpose. Accordingly, all such proceeds are allocated to working capital. It is possible that the Warrants may expire and may never be exercised.
The selling stockholders will pay any underwriting discounts and commissions and expenses incurred by them for brokerage, accounting, tax or legal services or any other expenses incurred in disposing of the shares. We will bear all other costs, fees and expenses incurred in effecting the registration of the shares covered by this prospectus, including, without limitation, all registration and filing fees, NASDAQ Capital Market listing fees and fees and expenses of our securitiescounsel and our auditors.
| 9 |
The common stock being offered by the selling stockholders are those issued to the selling stockholders in the offering that closed on March 24, 2020, and those issuable to the selling stockholders, upon exercise of the Warrants issued in such offering. For additional information regarding the issuances of those shares of common stock and Warrants, see “Private Placement of Common Shares and Warrants” above. We are registering the shares of common stock in order to permit the selling stockholders to offer the shares for resale from time to time. Except, as disclosed below and for the ownership of the shares of common stock and the Warrants, the selling stockholders have not had any material relationship with us within the past three years.
The following table sets forth information as of April 15, 2020, with respect to the selling stockholders for whom we are registering shares for sale to the public, the number of shares of our common stock owned by the each selling stockholder prior to this offering, the percentage of common stock owned by each selling stockholder prior to this offering, the maximum number of shares of our common stock to be sold by each selling stockholder pursuant to this prospectus, the number of shares of our common stock to be owned by each selling stockholder upon completion of this offering, assuming all such shares are sold, and the percentage of common stock owned by each selling stockholder after this offering, assuming all such shares are sold.
Applicable percentage ownership is based on 19,776,019 shares of our common stock outstanding as of April 15, 2020. Beneficial ownership is determined in accordance with Rule 13d-3(d) promulgated by the SEC under the Exchange Act. The percentage of shares beneficially owned prior to the offering is based on 19,776,019 shares of our common stock outstanding as of April 15, 2020.
This table is prepared based on information supplied to us by the selling stockholders. As used in this prospectus, the term “selling stockholders” includes the selling stockholders listed below, and any donees, pledges, transferees or other successors in interest selling shares received after the date of this prospectus from the selling stockholders as a gift, pledge, or other non-sale related transfer. The numbers of shares in the column “Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus” represents all of the shares that each selling stockholder may offer under this prospectus for general corporate purposes, includingprospectus. The selling stockholders may sell some, all or none of their shares. The selling stockholders may sell or transfer all or a portion of their shares of our common stock pursuant to cover expenses related to our clinical trialsan available exemption from the registration requirements of the Securities Act. We do not know how long the selling stockholders will hold the shares before selling them, and development programs and our operating expenses. We will set forth in the applicable prospectus supplement our intended use for the net proceeds received fromwe currently have no agreements, arrangements or understandings with any selling stockholder regarding the sale of any securities by us. Pending the application of the net proceeds, we intend to investshares.
In accordance with the net proceedsterms of a registration rights agreement with the selling stockholders, this prospectus generally in corporate savings accounts with top tier commercial banks, short-covers the resale of at least the sum of (i) the maximum number of shares of common stock issued and intermediate-term, interest-bearing obligations, investment-grade instruments, certificates(ii) the maximum number of deposit or direct or guaranteed obligationsshares of common stock issuable upon exercise of the U.S. government.related Warrants, determined as if the outstanding warrants were exercised in full as of the trading day immediately preceding the date this registration statement was initially filed with the SEC, each as of the trading day immediately preceding the applicable date of determination and all subject to adjustment as provided in the registration right agreement, without regard to any limitations on the exercise of the warrants.
Shares of Common Stock Owned Prior to Offering | Maximum Number of Shares of Common Stock to be Sold Pursuant to this Prospectus | Shares of Common Stock Owned After Offering | ||||||||
Name of Selling Stockholder | Number | Percent | Number | Percent | ||||||
| Kurtis Krentz | 50,808 | * | 50,808 | - | * | |||||
| Scott M. Curran | 25,403 | * | 25,403 | - | * | |||||
| Andreas Ammelounx Living Trust | 101,615 | * | 101,615 | - | * | |||||
| Robert Richard Keehan | 25,403 | * | 25,403 | - | * | |||||
| Gerard J Verweij | 50,808 | * | 50,808 | - | * | |||||
| Peter A. Casey | 25,403 | * | 25,403 | - | * | |||||
| Scott Joseph Schueller | 25,403 | * | 25,403 | - | * | |||||
| 10 |
| Joseph C. Atkinson | 25,403 | * | 25,403 | - | * | |||||
| Chad F Mueller | 40,644 | * | 40,644 | - | * | |||||
| Chetan R Vagholkar | 50,808 | * | 50,808 | - | * | |||||
| Carlo Alberici | 50,808 | * | 50,808 | - | * | |||||
| Paul G. Elie | 25,403 | * | 25,403 | - | * | |||||
| Mario Dellaera | 101,615 | * | 101,615 | - | * | |||||
| Daniel DiFilippo | 30,483 | * | 30,483 | - | * | |||||
| Steven J. Shanker Living Trust DTD 4-9-1997 | 30,483 | * | 30,483 | - | * | |||||
| Henry A. Padinha & Terri A. Padinha | 101,615 | * | 101,615 | - | * | |||||
| Dennis D. Howarter & Pamela J. Howarter | 101,615 | * | 101,615 | - | * | |||||
| Ballington Living Trust DTD 8-5-14 | 76,210 | * | 76,210 | - | * | |||||
| Jayeshkumar R. Patel | 50,808 | * | 50,808 | - | * | |||||
| Eric D. Janson Ruth Ann Janson | 25,403 | * | 25,403 | - | * | |||||
| Charles Tyson Cornell | 25,403 | * | 25,403 | - | * | |||||
| Mario Family Partners LP | 185,470 | * | 185,470 | - | * | |||||
| Mario 2002 Grandchildren's Trust | 92,734 | * | 92,734 | - | * | |||||
| Ernest Mario(1) | 508,077 | 2.5% | 185,470 | 322,607 | 1.4% | |||||
| John M. Brady | 50,808 | * | 50,808 | - | * | |||||
| Dennis T. Whalen & Linda P. Whalen | 25,403 | * | 25,403 | - | * | |||||
| Mark W. Boyer | 50,808 | * | 50,808 | - | * | |||||
| Timothy L. Carpenter & Julie L. Carpenter | 40,644 | * | 40,644 | - | * | |||||
| Jeffery L. Miller & Khristen N. Zar | 25,403 | * | 25,403 | - | * | |||||
| Michael A. Page | 25,403 | * | 25,403 | - | * | |||||
| Alan W Page | 25,403 | * | 25,403 | - | * | |||||
| James M Koch | 25,403 | * | 25,403 | - | * | |||||
| Jeffrey Ronald Boyle | 25,403 | * | 25,403 | - | * | |||||
| Alpesh Shah Hina Shah | 101,615 | * | 101,615 | - | * | |||||
| Vijay Singh | 25,403 | * | 25,403 | - | * | |||||
| Miles E Everson | 101,615 | * | 101,615 | - | * | |||||
| Amaresh Tripathy | 25,403 | * | 25,403 | - | * | |||||
| Richard Joseph Call IV | 15,242 | * | 15,242 | - | * | |||||
| Eugene Zaino | 101,615 | * | 101,615 | - | * | |||||
| Thorne Joseph Brown Matteson | 25,403 | * | 25,403 | - | * | |||||
| Michael P Niland & Jill K Niland | 50,808 | * | 50,808 | - | * | |||||
| Mark Demich | 25,403 | * | 25,403 | - | * | |||||
| Robert J. Smik | 30,483 | * | 30,483 | - | * | |||||
| Christopher Finnerty | 50,808 | * | 50,808 | - | * | |||||
| Vaidyanathan Chandrashekhar | 20,322 | * | 20,322 | - | * | |||||
| John D. Merriam | 25,403 | * | 25,403 | - | * | |||||
| Glenn E. Phillips | 25,403 | * | 25,403 | - | * | |||||
| Maz Partners LP | 50,808 | * | 50,808 | - | * | |||||
| James C Leslie | 25,403 | * | 25,403 | - | * | |||||
| Robert Forster | 127,017 | * | 127,017 | - | * | |||||
| Mark T Nash | 25,403 | * | 25,403 | - | * | |||||
| Jeffrey E Zaleski | 25,403 | * | 25,403 | - | * |
| 11 |
| John C Koppin | 25,403 | * | 25,403 | - | * | |||||
| Charles Kevin Ferrell | 25,403 | * | 25,403 | - | * | |||||
| Sean Ianchulev(2) | 2,198,143] | 10.8% | 185,470 | 2,012,673 | 8.5% | |||||
| Applebaum Family LTD Partnership | 30,483 | * | 30,483 | - | * | |||||
| Rogco Management | 45,725 | * | 45,725 | - | * | |||||
| Perry Sutaria | 50,808 | * | 50,808 | - | * | |||||
| Stuart M. Grant(3) | 4,389,178 | 21.0% | 2,032,290 | 2,356,888 | 10.2% | |||||
| Ramachandra C. Reddy | 50,808 | * | 50,808 | - | * | |||||
| Richard Dyke Rogers | 71,130 | * | 71,130 | - | * | |||||
| Scott A. Brody | 50,808 | * | 50,808 | - | * | |||||
| The Temkin Family Legacy Trust No. 2 | 50,808 | * | 50,808 | - | * | |||||
| Wuethrich Investments, LLC | 50,808 | * | 50,808 | - | * | |||||
| Edmond P Brady Kathleen M. Brady | 45,725 | * | 45,725 | - | * | |||||
| Joann Marie Fiore Borlack Alan Borlack JTWROS | 50,808 | * | 50,808 | - | * | |||||
| District 2 Captial Fund LP | 152,422 | * | 152,422 | - | * | |||||
| Bret Harvey Balonick | 15,242 | * | 15,242 | - | * | |||||
| James P Kolar | 25,403 | * | 25,403 | - | * | |||||
| Edmond Allen Morrison | 25,403 | * | 25,403 | - | * | |||||
| Charles Christensen | 50,808 | * | 50,808 | - | * | |||||
| William E Marx | 30,483 | * | 30,483 | - | * | |||||
| Steven R Lilley | 25,403 | * | 25,403 | - | * | |||||
| Stephen Zawoyski | 25,403 | * | 25,403 | - | * | |||||
| Alexandre Palma | 25,403 | * | 25,403 | - | * | |||||
| Keith Jackson | 25,403 | * | 25,403 | - | * | |||||
| Mohibullah Yousufani | 20,322 | * | 20,322 | - | * | |||||
| Joseph Michalczyk | 30,483 | * | 30,483 | - | * | |||||
| Denis Naughter | 50,808 | * | 50,808 | - | * | |||||
| Mark M Watermasysk | 20,322 | * | 20,322 | - | * | |||||
| James Douglas Summa | 25,403 | * | 25,403 | - | * | |||||
| Scott J. Gehsmann | 25,403 | * | 25,403 | - | * |
| * | Less than 1%. |
| (1) | Includes (i) 319,201 shares of common stock, (ii) 8,038 restricted stock units that vest within 60 days of April 15, 2020, (iii) 77,799 shares underlying options that are exercisable within 60 days of April 15, 2020, and (iv) 103,039 shares of common stock underlying Warrants that are exercisable within 60 days of April 15, 2020. |
| (2) | Includes (i) 508,679 shares of common stock, 380,424 shares underlying options and 103,039 shares underlying Warrants held by Dr. Ianchulev directly that are exercisable within 60 days of April 15, 2020, (ii) 606,667 shares of common stock and 140,000 shares of common stock underlying options held by PME that are exercisable within 60 days of April 15, 2020, (iii) 453,334 shares of common stock held by PME Investor Services Eyenovia, LLC, and (iv) 6,000 shares of common stock held by The Meliora Trust. Dr. Ianchulev is one of the two principal shareholders of PME and a manager of PME Investor Services Eyenovia, LLC and therefore may be deemed to have beneficial ownership of the shares of common stock held by PME and PME Investor Services Eyenovia, LLC. |
| (3) | Includes (i) 3,260,128 shares of common stock and (ii) 1,129,050 shares of common stock underlying Warrants that are exercisable within 60 days of April 15, 2020. |
Relationship with Selling Stockholders
As discussed in greater detail above under the section entitled “Private Placement of Common Shares and Warrants,” on March 23, 2020, we entered into the Securities Purchase Agreement with the selling stockholders, pursuant to which we sold shares of common stock and warrants to purchase shares of common stock to the selling stockholders on March 24, 2020, and agreed with the selling stockholders to file a registration statement to enable the resale of the shares of common stock covered by this prospectus. Sean Ianchulev, our Chief Executive Officer and a member of our board of directors, and Ernest Mario, a member of our board, participated in the offering and have shares of common stock covered by this prospectus.
| 12 |
The selling stockholders, which as used herein includes donees, pledgees, transferees or other successors-in-interest selling shares of common stock or interests in shares of common stock received after the date of this prospectus from a selling stockholder as a gift, pledge, partnership distribution or other transfer, may, sell securities offered under this prospectus:
The underwritersselling stockholders may use any one or more of the following methods when disposing of shares or interests therein:
| · | ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers; |
| · | block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction; |
| · | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| · | an exchange distribution in accordance with the rules of the applicable exchange; |
| · | privately negotiated transactions; |
| · | short sales effected after the date the registration statement of which this prospectus is a part is declared effective by the SEC; |
| · | through the writing or settlement of options or other hedging transactions, whether through an options exchange or otherwise; |
| · | broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share; |
| · | a combination of any such methods of sale; and |
| · | any other method permitted by applicable law. |
The selling stockholders may, from time to time, pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock, from time to time, under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our common stock or interests therein, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions, which may in turn engage in short sales of the common stock in the course of hedging the positions they assume. The selling stockholders may also sell shares of our common stock short and deliver these securities to close out their short positions, or loan or pledge the common stock to broker-dealers that in turn may sell these securities. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions or the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling stockholders from the sale of the common stock offered by them will be the purchase price of the common stock less discounts or commissions, if any. Each of the selling stockholders reserves the right to accept and, together with their agents from time to time, to reject, in whole or in part, any proposed purchase of common stock to be made directly or through underwriting syndicates managed by managing underwriters. The obligationsagents. We will not receive any of the underwriters to purchase the securities will be subject to certain conditions. proceeds from this offering.
| 13 |
The underwriters will be obligated to purchaseselling stockholders also may resell all the securities offered if they purchase any securities. The offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time. In connection with an offering, underwriters and their affiliates may engage in transactions to stabilize, maintain, or otherwise affect the market pricea portion of the securitiesshares in accordance with applicable law.
The selling stockholders and any sale of securities offered under this prospectus, they will generally use their reasonable best efforts to solicit purchases for the period of their appointment. If securities offered under this prospectus are sold directly, no underwriters, dealersbroker-dealers or agents would be involved. We are not making an offer of securities in any state that does not permit such an offer.
To the extent required, the shares of our common stock offered under this prospectusto be sold, the names of the selling stockholders, the respective purchase prices and public offering prices, the names of any agents, dealer or underwriter, any applicable commissions or discounts with respect to a particular offer will be listed on the Nasdaq Capital Market, subject to notice of issuance.
In order to facilitate the offering of any of the securities offered under this prospectus, the underwriterscomply with respect to any such offering may, as described in the prospectus supplement, engage in transactions that stabilize, maintain, or otherwise affect the price of the securities or any other securities the prices of which may be used to determine payments on these securities. Specifically, the underwriters may over-allot in connection with the offering, creating a short position in these securities for their own accounts. In addition, to cover over-allotments or to stabilize the price of these securities or of any other securities, the underwriters may bid for, and purchase, these securities or any other securities in the open market. Finally, in any offering of the securities offered under this prospectus through a syndicate of underwriters, the underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing these securities in the offering, if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions, or otherwise. Any of these activities may stabilize or maintain the market price of these securities above independent market levels. The underwriters are not required to engage in these activities, and may end any of these activities at any time, all as described in the applicable prospectus supplement.
We have advised the selling stockholders that the anti-manipulation rules of incorporation, authorizesRegulation M under the issuanceExchange Act may apply to sales of 90,000,000 shares in the market and to the activities of common stock, of which 11,782,682 shares were issued and outstanding as of January 22, 2019. Holders of our common stock are entitled to one vote for each share held on all matters submitted to a vote ofthe selling stockholders and do not have cumulative voting rights. Each election of directors by our stockholders will be determined by a plurality of the votes cast by the stockholders entitled to vote on the election. Holders of common stock are entitled to receive proportionately any dividends declared by our Board of Directors, subject to any preferential dividend rights of outstanding preferred stock.
We have agreed to effect a business transaction. In addition,indemnify the preferred stock could be utilized as a method of discouraging, delaying or preventing a change in control of us.
We have agreed with the selling stockholders to our certificate of incorporation relating to that series. We will also incorporate by reference intokeep the registration statement of which this prospectus isconstitutes a part effective until the formearlier of any certificate of amendment that describes the terms of series of preferred stock we are offering before the issuance(1) such time as all of the related seriesshares covered by this prospectus have been disposed of preferred stock. We urge youpursuant to readand in accordance with the prospectus supplement related to any series of preferred stock we may offer, as well asregistration statement or (2) the complete certificate of amendment that contains the termsdate on which all of the applicable series of preferred stock.
| 14 |
We have never declared dividends on the common stock, diluting the voting power of the common stock, impairing the liquidation rights of the common stock,our equity securities, and delaying or preventing the completion of a merger, tender offer or other takeover attempt. Additionally, the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
The validity of the securities being offered hereby will be passed upon for us by Wyrick Robbins Yates & Ponton LLP, Raleigh, North Carolina.
The financial statements of Eyenovia, Inc. includedas of December 31, 2019 and 2018 and for each of the two years in the period ended December 31, 2019 appearing in the Company’s Annual Report on Form 10-K as of and for the yearsyear endedDecember 31, 2017 and 20162019 have been audited by Marcum LLP, independent registered public accounting firm, as set forth in their report, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, thereon and incorporated herein by reference. Such financial statements are incorporated herein by reference in reliance on such report given upon the authority of said firm as experts in auditing and accounting.
This prospectus, which constitutes a part of the registration statement on Form S-3 that we have filed with the SEC under the Securities Act, does not contain all of the information in the registration statement and its exhibits. For further information with respect to us and the securities offered by this prospectus, you should refer to the registration statement and the exhibits filed as part of that document. Statements contained in this prospectus as to the contents of any contract or any other document referred to are not necessarily complete, and in each instance, we refer you to the copy of the contract or other document filed as an exhibit to the registration statement. Each of these statements is qualified in all respects by this reference.
We are subject to the reporting requirements of the Exchange Act and file annual, quarterly and current reports, proxy statements and other information with the SEC. You can read our SEC filings, including the registration statement, over the Internet at the SEC’s website at http://www.sec.gov. We also maintain a website at http://www.eyenoviabio.comwww.eyenovia.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not part of this prospectus.
| 15 |
The SEC allows us to “incorporate by reference” information that we file with them. Incorporation by reference allows us to disclose important information to you by referring you to those other documents. The information incorporated by reference is an important part of this prospectus and any applicable accompanying prospectus supplement, and information that we file later with the SEC will automatically update and supersede this information. We filed a registration statement on Form S-3 under the Securities Act with the SEC with respect to the securities being offered pursuant to this prospectus and any applicable accompanying prospectus supplement. This prospectus omits certain information contained in the registration statement, as permitted by the SEC. You should refer to the registration statement, including the exhibits, for further information about us and the securities being offered pursuant to this prospectus and any applicable accompanying prospectus supplement. Statements in this prospectus and any applicable accompanying prospectus supplement regarding the provisions of certain documents filed with, or incorporated by reference in, the registration statement are not necessarily complete, and each statement is qualified in all respects by that reference.
Copies of all or any part of the registration statement, including the documents incorporated by reference or the exhibits, may be obtained over the Internet at the SEC’s website at http://www.sec.gov. We also maintain a website at http://www.eyenoviabio.comwww.eyenovia.com, at which you may access these materials free of charge as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. The information contained in, or that can be accessed through, our website is not part of this prospectus. We are incorporating by reference the documents listed below, which we have already filed with the SEC, and all documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of any offering, except as to any portion of any future report or document that is not deemed filed under such provisions:
| · | our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC onMarch 30, 2020; |
| · | our Current Reports on Form 8-K filed with the SEC onMarch 25, 2020 (for the Report dated March 23, 2020) andApril 13, 2020; and |
| · | the description of our common stock contained in our registration statement on Form 8-A filed with the SEC onJanuary 24, 2018. |
Any statement contained in this prospectus and any applicable prospectus supplement or in a document incorporated or deemed to be incorporated by reference into this prospectus and any applicable prospectus supplement will be deemed to be modified or superseded for purposes of this prospectus and any prospectus supplement to the extent that a statement contained in this prospectus and any applicable prospectus supplement or other subsequently filed document that also is or is deemed to be incorporated by reference into this prospectus and any applicable prospectus supplement modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus and any applicable prospectus supplement.
We will furnish without charge to you, on written or oral request, a copy of any filing or report incorporated by reference, including exhibits to the document. You should direct any requests for documents to Eyenovia, Inc., 295 Madison Avenue, Suite 2400, New York, NY 10017, (917) 289-1117, Attention: Corporate Secretary.
You should rely only on information contained in, or incorporated by reference into, this prospectus and any applicable prospectus supplement. We have not authorized anyone to provide you with information different from that contained in this prospectus and any applicable prospectus supplement or incorporated by reference in this prospectus and any applicable prospectus supplement. We are not making offers to sell the securities in any jurisdiction in which such an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make such offer or solicitation.
| 16 |
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses payable by us in connection with the issuance and distributioncommon stock being registered. The selling stockholders will not bear any portion of such expenses. All the securities registered hereby will be as follows:
| | SEC registration fee | | | | $ | 9,090 | | |
| | Legal fees and expenses | | | | $ | * | | |
| | Accounting fees and expenses | | | | $ | * | | |
| | Printing expenses | | | | $ | * | | |
| | Miscellaneous | | | | $ | * | | |
| | Total | | | | $ | * | | |
| | ||||||||
| SEC registration fee | $ | 2,231 | ||
| Accounting fees and expenses | $ | 40,000 | ||
| Legal fees and expenses | $ | 50,000 | ||
| Miscellaneous | $ | 2,769 | ||
| Total | $ | 95,000 |
Item 15. Indemnification of Directors and Officers.
We are incorporated under the laws of the State of Delaware. Section 145 of the Delaware General Corporation Law (“DGCL”) provides that a Delaware corporation may indemnify any persons who are, or are threatened to be made, parties to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person was an officer, director, employee, or agent of such corporation, or is or was serving at the request of such person as an officer, director, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit, or proceeding, provided that such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any person who is, or is threatened to be made, a party to any threatened, pending, or completed action or suit by or in the right of the corporation by reason of the fact that such person was a director, officer, employee, or agent of such corporation, or is or was serving at the request of such corporation as a director, officer, employee, or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit provided such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the corporation’s best interests, except that no indemnification is permitted without judicial approval if the officer or director is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him or her against the expenses which such officer or director has actually and reasonably incurred. Our certificate of incorporation and bylaws provide for the indemnification of our directors and officers to the fullest extent permitted under the DGCL.
Section 102(b)(7) of the DGCL permits a corporation to provide in its certificate of incorporation that a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a director, except for liability for any:
Our certificate of incorporation includes a provision providing for the limitation of liability to the maximum extent permitted under the DGCL. Expenses incurred by any officer or director in defending any proceeding in advance of its final disposition shall be paid by us upon delivery to us of an undertaking by or on behalf of such director or officer, to repay all amounts advanced if it should ultimately be determined that such director or officer is not entitled to be indemnified by us.
| II-1 |
Section 174 of the DGCL provides, among other things, that a director, who willfully or negligently approves of an unlawful payment of dividends or an unlawful stock purchase or redemption, may be held liable for such actions. A director who was either absent when the unlawful actions were approved, or dissented at the time, may avoid liability by causing his or her dissent to such actions to be entered on the books containing minutes of the meetings of the board of directors at the time such action occurred or immediately after such absent director receives notice of the unlawful acts.
We maintain a directors’ and officers’ liability insurance policy. The policy insures directors and officers against unindemnified losses arising from certain wrongful acts in their capacities as directors and officers and reimburses us for those losses for which we have lawfully indemnified the directors and officers. The policy contains various exclusions.
| II-2 |
Item 16. Exhibits.
Item 16. Exhibits and Financial Statement Schedules.
| (a) | Exhibits. |
| (b) | Financial statement schedules. |
None.
| II-3 |
| | | | | | | Incorporated by Reference (Unless Otherwise Indicated) | | |||||||||
| Exhibit Number | | | Exhibit Description | | | Form | | | File No. | | | Exhibit | | | Filing Date | |
| 1.1+ | | | Form of Underwriting Agreement. | | | — | | | — | | | — | | | — | |
| | | Third Amended and Restated Certificate of Incorporation | | | 8-K | | | 001-38365 | | | 3.1 | | | January 29, 2018 | | |
| | | Certificate of Amendment to Third Amended and Restated Certificate of Incorporation | | | 8-K | | | 001-38365 | | | 3.1.1 | | | June 14, 2018 | | |
| | | Amended and Restated Bylaws of Eyenovia, Inc. | | | 8-K | | | 001-38365 | | | 3.1 | | | March 12, 2018 | | |
| 4.1+ | | | Form of Certificate of Amendment to Third Amended and Restated Certificate of Incorporation, as amended | | | — | | | — | | | — | | | — | |
| | | Form of Indenture | | | — | | | — | | | — | | | Filed herewith | | |
| 4.3+ | | | Form of Note | | | — | | | — | | | — | | | — | |
| 4.4+ | | | Form of Common Stock Warrant Agreement and Warrant Certificate | | | — | | | — | | | — | | | — | |
| 4.5+ | | | Form of Preferred Stock Warrant Agreement and Warrant Certificate | | | — | | | — | | | — | | | — | |
| 4.6+ | | | Form of Debt Securities Warrant Agreement and Warrant Certificate | | | — | | | — | | | — | | | — | |
| 4.7+ | | | Form of Unit Agreement and Unit Certificate | | | — | | | — | | | — | | | — | |
| 4.8+ | | | Form of Rights Agreement and Rights Certificate | | | — | | | — | | | — | | | — | |
| | | Opinion of Wyrick Robbins Yates & Ponton LLP | | | — | | | — | | | — | | | Filed herewith | | |
| | | Consent of Marcum LLP | | | — | | | — | | | — | | | Filed herewith | | |
| | | Consent of Wyrick Robbins Yates & Ponton LLP (included in Exhibit 5.1) | | | — | | | — | | | — | | | Filed herewith | | |
| | | Power of Attorney (included on signature page) | | | — | | | — | | | — | | | Filed herewith | | |
| 25.1++ | | | Statement of Eligibility of Trustee | | | — | | | — | | | — | | | — | |
Item 17. Undertakings
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however,
that the undertakings set forth in paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initialbona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(A) Each prospectus filed by thea registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(b) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
| II-4 |
(h) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of theany registrant pursuant to the foregoing provisions, or otherwise, theeach registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by thea registrant of expenses incurred or paid by a director, officer or controlling person of thesuch registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, thesuch registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
(i) The undersigned registrant hereby undertakes that:
(1) the information omitted from the form of prospectus filed as part of this Registration Statementthe registration statement in reliance upon Rule 430A and contained in athe form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of thisthe registration statement as of the time it was declared effective; and
(2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
| II-5 |
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-3 and has duly caused this Registration Statement on Form S-3registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on January 25, 2019.
| EYENOVIA INC. | ||
| By: | /s/ Tsontcho Ianchulev | |
| Tsontcho Ianchulev | ||
| Chief Executive Officer | ||
KNOW ALL BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Tsontcho Ianchulev and John Gandolfo, and each or any one of them, as his or her true and lawful attorneys-in-factagent, proxy and agents, eachattorney-in-fact, with the full power of substitution and resubstitution, for him or her and in his or her name, place orand stead, in any and all capacities, to (i) act on, sign and file with the Securities and Exchange Commission any and all amendments to this Registration Statement (including post-effective amendments), to this registration statement together with all schedules and exhibits thereto and any subsequent registration statement filed by the registrant pursuant to Rule 462(b) ofunder the Securities Act of 1933, as amended, which relates to this Registration Statement,together with all schedules and toexhibits thereto, (ii) act on, sign and file the same, with exhibits theretosuch certificates, instruments, agreements and other documents as may be necessary or appropriate in connection therewith, with(iii) act on and file any supplement to any prospectus included in this registration statement or any such amendment or any subsequent registration statement filed pursuant to Rule 462(b) under the SEC, granting unto said attorneys-in-factSecurities Act of 1933, as amended, and agents,(iv) take any and each of them, full power and authority to do and perform each and every act and thing requisite andall actions, which may be necessary or appropriate to be done, in and about the premises, as fully tofor all intents and purposes as he might or could do in person, hereby approving, ratifying and confirming all that said attorneys-in-factsuch agent, proxy and agents,attorney-in-fact or theirany of his or his substitute orher substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, of 1933, this Registration Statementregistration statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Date | ||||||
| /s/ Tsontcho Ianchulev | Chief Executive Officer | ||||||
Tsontcho Ianchulev | (Principal Executive Officer) | ||||||
| /s/ John Gandolfo | Chief Financial Officer | ||||||
John Gandolfo | (Principal Financial and Accounting Officer) | ||||||
| /s/ Fredric N. Eshelman | Chairman of the Board and Director | ||||||
Fredric N. Eshelman | |||||||
| /s/ Curt H. LaBelle | Director | April 22, 2020 | |||||
| Curt H. LaBelle | |||||||
| /s/ Kenneth B. Lee, Jr. | Director | April 22, 2020 | |||||
| Kenneth B. Lee, Jr. | |||||||
| /s/ Ernest Mario | Director | ||||||
Ernest Mario | |||||||
| /s/ Charles E. Mather IV | Director | April 22, 2020 | |||||
| Charles E. Mather IV | |||||||
| /s/ Anthony Y. Sun | Director | April 22, 2020 | |||||
| Anthony Y. Sun |