As filed with the Securities
and Exchange Commission on December 14, 2021
Registration
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)
Delaware
(State or other jurisdiction
of
incorporation or organization)
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47-1178401
(I.R.S. Employer
Identification No.)
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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:
Megan Gates, Esq.
Mintz, Levin, Cohn, Ferris, Glovsky
& Popeo, P.C.
One Financial Center
Boston, MA 02111
(617) 542-6000
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined
by the registrant.
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: x
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 to a registration statement 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, 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 ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company x
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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 Securities Act. ¨
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities
to be Registered
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Proposed Maximum
Aggregate Offering
Price (2)(3)
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Amount of
Registration Fee (1)
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Common Stock, $0.0001 par value per share
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—
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—
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Preferred Stock, $0.0001 par value per share
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—
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—
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Debt Securities
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—
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—
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Warrants
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—
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—
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Units
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—
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—
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Rights
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—
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—
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Total
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$100,000,000
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(4)
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(1)
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Calculated pursuant to Rule 457(o) under the Securities Act of 1933, as amended, based on the
proposed maximum aggregate offering price.
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(2)
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There are being registered hereunder such indeterminate number of shares of common stock and preferred
stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants and rights, and such indeterminate
number of units, as shall have an aggregate initial offering price not to exceed $100,000,000. If any debt securities are issued at an
original issue discount, then the offering price of such debt securities shall be in such greater principal amount as shall result in
an aggregate initial offering price not to exceed $100,000,000, less the aggregate dollar amount of all securities previously issued hereunder
Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. The proposed maximum
initial offering price per unit will be determined, from time to time, by the registrant in connection with the issuance by the registrant
of the securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock and
preferred stock and amount of debt securities as may be issued upon conversion of or exchange for preferred stock or debt securities that
provide for conversion or exchange, upon exercise of warrants or rights, or pursuant to the anti-dilution provisions of any such securities.
In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended, the shares being registered hereunder include such
indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the shares being registered hereunder
as a result of stock splits, stock dividends or similar transactions.
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(3)
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The proposed maximum aggregate offering price per class of security will be determined from time to time
by the registrant in connection with the issuance by the registrant of the securities registered hereunder and is not specified as to
each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act of 1933, as amended.
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(4)
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Pursuant to Rule 457(p) under the Securities Act of 1933, as amended, the registrant hereby
offsets the total registration fee due under this Registration Statement by the amount of the filing fee associated with the unsold securities
from the registrant’s Form S-3 Registration Statement (File No. 333-229365) filed with the Commission on January 25,
2019, which was declared effective on February 12, 2019 (the “Prior Registration Statement”). The Prior Registration
Statement registered the offer and sale of an indeterminate number of common stock, preferred stock, debt securities, warrants, units
and rights with an aggregate offering price not to exceed $75,000,000.00, of which $34,384,512.33 of such securities (the “Unsold
Securities”) remain unsold as of the filing date of this Registration Statement. The Unsold Securities (and associated registration
fees) are being moved from the Prior Registration Statement to this Registration Statement. Pursuant to Rule 457(p), the associated
filing fee of $3,440.20 relating to such Unsold Securities under the Prior Registration Statement, calculated under Rule 457(o),
is hereby used to partially offset the current registration fee of $9,270.00 due. As a result, a filing fee of $5,829.80 is being paid
herewith.
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THE REGISTRANT
HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE
WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH
DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
EXPLANATORY NOTE
This registration statement contains
two prospectuses:
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a base prospectus which covers the offering, issuance and sale by us of up
to $100,000,000 in the aggregate of the securities identified above from time to time in one or more offerings; and
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a sales agreement prospectus covering the offering, issuance and sale by
us of up to a maximum aggregate offering price of $50,000,000 of our common stock that may be issued and sold from time to time under
a Sales Agreement with SVB Leerink LLC, dated as of December 14, 2021.
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The base prospectus
immediately follows this explanatory note. The specific terms of any securities to be offered pursuant to the base prospectus will
be specified in a prospectus supplement to the base prospectus. The Sales Agreement prospectus immediately follows the base
prospectus. The $50,000,000 of common stock that may be offered, issued and sold under the Sales Agreement prospectus is included in
the $100,000,000 of securities that may be offered, issued and sold by us under the base prospectus. Upon termination of the Sales
Agreement with SVB Leerink LLC, any portion of the $50,000,000 included in the Sales Agreement prospectus that is not sold pursuant to
the Sales Agreement will be available for sale in other offerings pursuant to the base prospectus and a corresponding prospectus
supplement, and if no shares are sold under the sales agreement, the full $100,000,000 of securities may be sold in other offerings
pursuant to the base prospectus and a corresponding prospectus supplement subject to any applicable limitations set forth herein and
therein.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE
AND MAY BE CHANGED. WE MAY NOT SELL 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 IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES
IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER
14, 2021
PROSPECTUS
$100,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
This prospectus
will allow us to issue, from time to time at prices and on terms to be determined at or prior to the time of the offering, up to $100,000,000
of any combination of the securities described in this prospectus, either individually or in units. We may also offer common stock, or
preferred stock upon conversion of or exchange for the debt securities; common stock upon conversion of or exchange for preferred stock;
common stock, preferred stock or debt securities upon the exercise of warrants or rights.
This prospectus
describes the general terms of these securities and the general manner in which these securities will be offered. We will provide you
with the specific terms of any offering in one or more supplements to this prospectus. The prospectus supplements will also describe the
specific manner in which these securities will be offered and may also supplement, update or amend information contained in this document.
You should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus
or any prospectus supplement, carefully before you invest.
Our securities
may be sold directly by us to you, through agents designated from time to time or to or through underwriters or dealers. For additional
information on the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and
in the applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to which
this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts and over-
allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net proceeds that we
expect to receive from such sale will also be set forth in a prospectus supplement.
Our common
stock is listed on The Nasdaq Capital Market under the symbol “EYEN.” On December 10, 2021, the last reported sale
price of our common stock was $3.76 per share. The applicable prospectus supplement will contain information, where applicable, as
to any other listing, if any, on The Nasdaq Capital Market or any securities market or other securities exchange of the securities covered
by the prospectus supplement. Prospective purchasers of our securities are urged to obtain current information as to the market prices
of our securities, where applicable.
We are an “emerging growth
company” and a “smaller reporting company” under applicable Securities and Exchange Commission rules and are subject
to reduced public company reporting requirements for this prospectus and future filings.
Investing
in our securities involves a high degree of risk. See “Risk Factors” included in any accompanying prospectus supplement and
in the documents incorporated by reference in this prospectus for a discussion of the factors you should carefully consider before deciding
to purchase these securities.
Neither
the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined
if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus
is , 2021.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus
is part of a registration statement that we filed with the U.S. Securities and Exchange Commission (the “SEC”), utilizing
a “shelf” registration process. Under this shelf registration process, we may offer shares of our common stock, various series
of debt securities or preferred stock, and warrants or rights to purchase any such securities, either individually or in units, in one
or more offerings, with a total value of up to $100,000,000. This prospectus provides you with a general description of the securities
we may offer. Each time we offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will
contain specific information about the terms of that offering.
This prospectus
does not contain all of the information included in the registration statement. For a more complete understanding of the offering of the
securities, you should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or
change information contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security
that is not registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable
prospectus supplements and the documents incorporated by reference into this prospectus, includes all material information relating to
the offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement, the
information and documents incorporated herein by reference and the additional information under the heading “Where You Can Find
More Information” before making an investment decision.
You should
rely only on the information we 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 or incorporated by reference in this prospectus. No dealer,
salesperson or other person is authorized to give any information or to represent anything not contained or incorporated by reference
in this prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information
in this prospectus or any prospectus supplement is accurate only as of 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.
We further
note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is
incorporated by reference in the prospectus were made solely for the benefit of the parties to such agreement, including, in some cases,
for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty or
covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly, such
representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus
may not be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies
between any prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date
will control.
Unless the
context otherwise requires, “Eyenovia,” “EYEN,” “the Company,” “we,” “us,”
“our” and similar terms refer to Eyenovia, Inc. and our subsidiaries.
PROSPECTUS SUMMARY
The following
is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus.
We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial
statements and other information incorporated by reference from our other filings with the SEC or included in any applicable prospectus
supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus supplements
and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and any prospectus supplements
and the documents incorporated by reference herein or therein, before purchasing our securities. Each of the risk factors could adversely
affect our business, operating results and financial condition, as well as adversely affect the value of an investment in our securities.
About Eyenovia, Inc.
We are a clinical stage ophthalmic
biopharmaceutical company developing a pipeline of advanced therapeutics based on our proprietary microdose array print (MAP™) therapeutics.
We aim to achieve clinical microdosing of next-generation formulations of well-established ophthalmic pharmaceutical agents using our
high-precision targeted ocular delivery system, branded the Optejet® which has the potential to replace conventional eye 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%). Our technology is designed to achieve single-digit µl-volume physiologic drug delivery with up to a
75% reduction in ocular drug and preservative topical dosing and has demonstrated significant improvement in the therapeutic index in
drugs used for mydriasis and IOP lowering through three Phase II and Phase III trials. Conventional eye formulations lack high-precision
micro-volume delivery and expose the ocular surface to approximately 300% more medication and preservatives than are physiologically indicated
leading to clinically recognized ocular and non-ocular side effects. Using the Optejet, we are developing the next generation of smart
ophthalmic therapeutics which target new indications or new combinations where there are currently no comparable drug therapies approved
by the U.S. Food and Drug Administration, (the “FDA”). Our microdose therapeutics follow the FDA-designated pharmaceutical
registration and regulatory process. Consistent with the recent FDA reclassification of MydCombi, we believe that most of our product
candidates are, or will be, classified by the FDA as drug-led combination products.
Our pipeline is currently
focused on the late-stage development of novel, potential first-in-class therapeutic indications for over an estimated five million potential
patients with progressive myopia in the United States and over an estimated one hundred million potential patients with age-related near
vision impairment, or presbyopia - indications where there is tremendous unmet need and no known existing FDA-approved therapies. We are
also developing the first microdose fixed combination ophthalmic pharmaceutical for mydriasis to address the estimated over 100 million
annual comprehensive eye exams with pupil dilation.
MicroPine is our investigational
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. In the United States, myopia is estimated to affect approximately 25 million children, with
up to five million considered to be at risk for high myopia. In February 2019, the FDA accepted our investigational new drug application,
or IND, to initiate a Phase III registration trial of MicroPine (the CHAPERONE study) to reduce the progression of myopia in children.
We enrolled the first patient in the CHAPERONE study in June 2019. Due to the COVID-19 pandemic, we experienced delays in trial enrollment
and initiation as a result of reduced clinical trial activities and operations at investigator sites during the first half of 2020. However,
we have since been able to resume enrollment in the CHAPERONE study at a slower pace than initially planned.
On October 9, 2020,
we entered into a License Agreement (the “Bausch License Agreement”) with a subsidiary of Bausch Health Companies Inc. (“Bausch
Health”) pursuant to which Bausch Health may develop and commercialize MicroPine in the United States and Canada. Under the terms
of the Bausch License Agreement, we received an upfront payment of $10.0 million and we may receive up to a total of $35.0 million in
additional payments, based on the achievement of certain regulatory and launch-based milestones. Bausch Health also will pay us royalties
on a tiered basis (ranging from mid-single digit to mid-teen percentages) on gross profits from sales of MicroPine in the United States
and Canada, subject to certain adjustments. Under the terms of the Bausch License Agreement, Bausch Health is in the process of assuming
oversight for, and has assumed the costs related to the ongoing CHAPERONE study.
MicroLine is our investigational
pharmacologic treatment for presbyopia. Presbyopia is a non-preventable, age-related hardening of the lens, which causes the gradual loss
of the eye’s ability to focus at near and impairs near visual acuity. 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. We have two planned Phase
III VISION trials for MicroLine, and initiated the first of these trials in December 2020. On May 25, 2021, we announced positive
topline data from the Phase III VISION-1 study evaluating MicroLine for the temporary improvement of near vision in adults with presbyopia.
The study achieved its primary endpoint and the Company recently initiated VISION -2, a second Phase III registration study. VISION-2,
is a double-masked, placebo-controlled, cross-over superiority trial designed to enroll 120 patients randomized between 2% pilocarpine
and placebo cohorts. Topline data from VISION-2 is anticipated in mid-2022. These studies will serve as the basis for a planned New Drug
Application (NDA) submission to FDA. VISION-1 results will be presented at a future ophthalmic-focused medical meeting.
On August 10, 2020, we
entered into a License Agreement (the “Arctic Vision License Agreement”) with Arctic Vision (Hong Kong) Limited (“Arctic
Vision”), pursuant to which Arctic Vision may develop and commercialize MicroPine and MicroLine in Greater China (mainland China,
Hong Kong, Macau and Taiwan) and South Korea. Under the terms of the Arctic Vision License Agreement, we received an upfront payment of
$4.0 million before any payments to Senju Pharmaceutical Co., Ltd. (“Senju”). In addition, we may receive up to a total
of $43.75 million in additional payments, based on various development and regulatory milestones, including the initiation of clinical
research and approvals in Greater China and South Korea, and development costs. Milestone revenue includes $2.0 million related to the
MicroStat product resulting from Amendment 1 to the Arctic Vision License Agreement between the Company and Arctic Vision which was executed
on September 14, 2021. Arctic Vision also will purchase its supply of MicroPine, MicroLine and MicroStat from us or, for such products
not supplied by us, pay us a mid-single digit percentage royalty on net sales of such products, subject to certain adjustments. We will
pay a mid-double digit percentage of such payments, royalties, or net proceeds of such supply to Senju pursuant to the Exclusive License
Agreement with Senju dated March 8, 2015, as amended by the License Amendment dated April 8, 2020, and a Letter Agreement dated
August 10, 2020 (the “Senju License Agreement”).
The Senju License Agreement
was amended further by the License Amendment 2, effective September 14, 2021 (the “Amendment 2”). The Amendment 2 excludes
Greater China and South Korea from the territory in which Senju was granted an exclusive royalty-bearing license from the Company. In
consideration for this exclusion, and upon and after the execution of Amendment 1 with Arctic Vision, the Company must make payments to
Senju based on non-royalty license revenue and sales revenue, including a one-time upfront payment of $250,000 which represented an inducement
to Senju to approve Amendment 1 of the Arctic Vision License Agreement related to the MicroStat Product. This upfront payment to Senju
was in addition to and separate from the previously established 40% payment on milestone revenue.
MydCombi™ (or MicroStat)
is our fixed combination formulation of phenylephrine-tropicamide for mydriasis, designed to be a novel approach for the estimated over
one hundred million office-based comprehensive and diabetic eye exams performed every year in the United States. We have completed two
Phase III trials for MydCombi and announced positive results from these studies, known as MIST-1 and MIST-2. In March 2021, the FDA
accepted our NDA, for MydCombi for use to achieve mydriasis in routine diagnostic procedures and in conditions where short-term pupil
dilation is desired. On October 25, 2021, the Company announced the reclassification of the Company’s proprietary, first-in-class
combination microdose formulation of tropicamide and phenylephrine for in-office pupil dilation, MydCombi, as a drug-device combination
product by the FDA in a Complete Response Letter (“CRL”) received on October 22, 2021, following a change in the agency’s
legal interpretation of its authorities imposed by a recent court ruling. The Company is preparing the necessary documents for expedited
resubmission of the new drug application for MydCombi in response to the CRL.
We have not received U.S.
marketing approval for any product candidate and we have therefore not generated any revenues from product sales.
Additional Information
For additional
information related to our business and operations, please refer to the reports incorporated herein by reference, including our Annual Report on Form 10-K for the year ended December 31, 2020, as described under the caption “Incorporation of Documents by
Reference” on page 30 of this prospectus.
Impact of COVID-19
In March 2020, the World
Health Organization declared COVID-19 a global pandemic and recommended containment and mitigation measures worldwide. The COVID-19 pandemic
has been evolving, and to date has led to the implementation of various responses, including government-imposed quarantines, travel restrictions
and other public health safety measures.
Management continues to closely
monitor the impact of the COVID-19 pandemic on all aspects of the business, including how it will impact operations and the operations
of customers, vendors, and business partners. Due to the COVID-19 pandemic, we have experienced delays in trial enrollment and initiation
as a result of reduced clinical trial activities and operations at investigator sites. However, we have since been able to resume operations
largely as they were prior to the pandemic. The extent to which COVID-19 impacts the future business, results of operation and financial
condition will depend on future developments, which are highly uncertain and cannot be predicted with confidence at this time, such as
the continued duration of the outbreak, new information that may emerge concerning the severity or other strains of COVID-19 or the effectiveness
of actions to contain COVID-19 or treat its impact, among others. If we or any of the third parties with which we engage, however, were
to experience shutdowns or other business disruptions, the ability to conduct our business in the manner and on the timelines presently
planned could be materially and negatively affected, which could have a material adverse impact on business, results of operation and
financial condition. The estimates of the impact on the Company’s business may change based on new information that may emerge concerning
COVID-19 and the actions to contain it or treat its impact and the economic impact on local, regional, national, and international markets.
Our 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
telephone number is 917-289-1117. We maintain a website at http://www.eyenovia.com, to
which we regularly post copies of our press releases as well as additional information about us. The information contained on, or that
can be accessed through, our website is not a part of this prospectus. We have included our website address in this prospectus solely
as an inactive textual reference.
All brand
names or trademarks appearing in this prospectus are the property of their respective holders. Use or display by us of other parties’
trademarks, trade dress, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements or
sponsorship of, us by the trademark or trade dress owners.
Implications of Being an Emerging Growth Company
As a company with less than
$1.07 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 (the “JOBS Act”). For so long as we remain an emerging growth company, we are permitted
and intend to rely on exemptions from specified disclosure requirements that are applicable to other public companies that are not emerging
growth companies. These exemptions include:
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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;
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not being required to comply with the auditor attestation requirements in the assessment of our internal
control over financial reporting;
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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;
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reduced disclosure obligations regarding executive compensation; and
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exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder
approval of any golden parachute payments not previously approved.
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We may take 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 $1.07 billion in annual revenues, have more than $700 million in market value of our capital stock
held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period. We may choose to take advantage
of some, but not all, of the available exemptions. We have taken advantage of some reduced reporting burdens in this prospectus and the
documents incorporated by reference into this prospectus. Accordingly, the information contained herein may be different than the information
you receive from other public companies in which you hold stock.
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 not be subject to the same new or revised accounting standards as other public companies that are not emerging growth
companies.
We are also a “smaller
reporting company” as defined under the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended.
We may continue to be a smaller reporting company so long as either (i) the market value of shares of our common stock held by non-affiliates
is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and
the market value of shares of our common stock held by non-affiliates is less than $700 million. If we are a smaller reporting company
at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that
are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most
recent fiscal years of audited financial statements in our Annual Report on Form 10-K and have reduced disclosure obligations regarding
executive compensation, and, similar to emerging growth companies, if we are a smaller reporting company under the requirements of (ii) above,
we would not be required to obtain an attestation report on internal control over financial reporting issued by our independent registered
public accounting firm.
Offerings Under This Prospectus
Under this
prospectus, we may offer shares of our common stock, various series of debt securities and/or preferred stock, or warrants or rights to
purchase any of such securities, either individually or in units, with a total value of up to $100,000,000, from time to time at prices
and on terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series 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, including, to the extent applicable:
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designation or classification;
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aggregate principal amount or aggregate offering price;
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maturity, if applicable;
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rates and times of payment of interest or dividends, if any;
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redemption, conversion or sinking fund terms, if any;
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voting or other rights, if any; and
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conversion or exercise prices, if any.
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The prospectus
supplement also may add, update or change information contained in this prospectus or in documents we have incorporated by reference into
this prospectus. However, no prospectus supplement will fundamentally change the terms that are set forth in this prospectus or offer
a security that is not registered and described in this prospectus at the time of its effectiveness.
We may sell
the securities directly to investors or to or through agents, underwriters or dealers. We, and our agents or underwriters, reserve the
right to accept or reject all or part of any proposed purchase of securities. If we offer securities through agents or underwriters, we
will include in the applicable prospectus supplement:
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the names of those agents or underwriters;
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applicable fees, discounts and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the net proceeds to us.
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This prospectus may not be used
to consummate a sale of any securities unless it is accompanied by a prospectus supplement.
RISK FACTORS
Investing
in our securities involves significant risk. The prospectus supplement applicable to each offering of our securities will contain a discussion
of the risks applicable to an investment in Eyenovia. Prior to making a decision about investing in our securities, you should carefully
consider the specific factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together
with all of the other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by
reference in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the heading “Risk
Factors” included in our most recent Annual Report on Form 10-K, as revised or supplemented by our subsequent Quarterly Reports
on Form 10-Q or our Current Reports on Form 8-K that we have filed with the SEC, all of which are incorporated herein by reference,
and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks
and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently known to us or that
we currently deem immaterial may also affect our operations. The occurrence of any of these risks might cause you to lose all or part
of your investment in the offered securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus
and the documents incorporated by reference in this prospectus include forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), that relate to future events or our future financial performance and involve known and unknown
risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ materially
from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking statements. Words
such as, but not limited to, “believe,” “expect,” “anticipate,” “estimate,” “intend,”
“may,” “plan,” “potential,” “predict,” “project,” “targets,” “likely,”
“will,” “would,” “could,” “should,” “continue,” and similar expressions or
phrases, or the negative of those expressions or phrases, are intended to identify forward-looking statements, although not all forward-looking
statements contain these identifying words. Although we believe that we have a reasonable basis for each forward-looking statement contained
in this prospectus and incorporated by reference in this prospectus, we caution you that these statements are based on our projections
of the future that are subject to known and unknown risks and uncertainties and other factors that may cause our actual results, level
of activity, performance or achievements expressed or implied by these forward-looking statements, to differ. The sections in our periodic
reports, including our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, entitled “Business,”
“Risk Factors,” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations,”
as supplemented by our subsequent Quarterly Reports on Form 10-Q and our Current Reports on Form 8-K, as well as other sections
in this prospectus and the other documents or reports incorporated by reference in this prospectus, discuss some of the factors that could
contribute to these differences.
You should understand that the following important
factors, in addition to those discussed in our periodic reports filed with the SEC under the Exchange Act could affect our future results
and could cause those results to differ materially from those expressed in such forward-looking statements:
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our need to raise additional money to fund our operations for the next twelve months as a going concern;
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our estimates regarding expenses, future revenue, timing of any future revenue, capital requirements and
needs for additional financing;
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impacts of and uncertainty related to COVID-19;
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fluctuations in our financial results and stock price, particularly given market conditions and the potential
economic impact of COVID-19;
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our expectations related to the use of proceeds from our financings;
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risks of our and our licensees’ 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;
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the timing and our or our licensees’ ability to submit applications for, obtain and maintain regulatory
approval for our product candidates;
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reliance on third parties to develop and commercialize certain of our product candidates;
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our and our partners’ ability to timely develop, implement and maintain manufacturing, commercialization
and marketing capabilities and strategies for certain of our product candidates;
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our estimates regarding the potential market opportunity for our product candidates;
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the potential advantages of our product candidates and platform technology and potential revenues from
licensing transactions;
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the rate and degree of market acceptance and clinical utility of our product candidates;
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our intellectual property position;
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our ability to identify additional products, product candidates or technologies with significant commercial
potential that are consistent with our commercial objectives;
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our ability to attract and retain key personnel;
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the impact of government laws and regulations;
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our competitive position;
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developments relating to our competitors and our industry;
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our ability to maintain and establish collaborations;
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general or regional economic conditions;
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changes in U.S. GAAP; and
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changes in the legal, regulatory and legislative environments in the markets in which we operate, and
the impact of these changes on our ability to obtain regulatory approval for our products.
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We may not
actually achieve the plans, intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance
on our forward-looking statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed
in the forward-looking statements we make. We have included important cautionary statements in this prospectus and in the documents incorporated
by reference in this prospectus, particularly in the “Risk Factors” section, that we believe could cause actual results or
events to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer to the section
entitled “Risk Factors” in this prospectus, as updated and supplemented by the discussion of risks and uncertainties under
“Risk Factors” contained in any supplements to this prospectus and in our most recent Annual Report on Form 10-K, as
revised or supplemented by our subsequent Quarterly Reports on Form 10-Q or our Current Reports on Form 8-K, as well as any
amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this document is
believed to be current as of the date of this document. We do not intend to update any of the forward-looking statements after the date
of this document to conform these statements to actual results or to changes in our expectations, except as required by law.
In light of
these assumptions, risks and uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus
or in any document incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking
statements, which speak only as of the date of this prospectus or the date of the document incorporated by reference in this prospectus.
We are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether
as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable to us or to any person
acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
USE OF PROCEEDS
Unless otherwise
indicated in the applicable prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus
for general corporate purposes, including, but not limited to, clinical trials, research and development activities, working capital,
capital expenditures, acquisitions, should we choose to pursue any, and collaborations. We have not determined the amounts we plan to
spend on any of the areas listed above or the timing of these expenditures. As a result, our management will have broad discretion to
allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for any purpose. Pending
application of the net proceeds as described above, we may initially invest the net proceeds in short-term, investment-grade or interest-bearing
securities.
PLAN OF DISTRIBUTION
We may offer
securities under this prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or
a combination of these methods. We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly
to one or more purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more
transactions at:
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a fixed price or prices, which may be changed from time to time;
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market prices prevailing at the time of sale;
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prices related to the prevailing market prices; or
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We may directly
solicit offers to purchase the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase
the securities from time to time, and may enter into arrangements for “at-the-market,” equity line or similar transactions.
We will name in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize
a dealer in the sale of the securities being offered by this prospectus, we will sell the securities to the dealer, as principal. The
dealer may then resell the securities to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize
an underwriter in the sale of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter
at the time of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make
resales of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the securities for whom
the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions
or commissions.
With respect
to underwritten public offerings, negotiated transactions and block trades, we will provide in the applicable prospectus supplement information
regarding any compensation we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution
of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions received
by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions. We may
enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under the Securities
Act, or to contribute to payments they may be required to make in respect thereof.
If so indicated
in the applicable prospectus supplement, we will authorize underwriters, dealers or other persons acting as our agents to solicit offers
by certain institutions to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the
date stated in each applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities
sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject to our
approval. Delayed delivery contracts will not be subject to any conditions except that:
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the purchase by an institution of the securities covered under that contract shall not at the time of
delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the securities are also being sold to underwriters acting as principals for their own account, the
underwriters shall have purchased such securities not sold for delayed delivery. The underwriters and other persons acting as our agents
will not have any responsibility in respect of the validity or performance of delayed delivery contracts.
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One or more firms, referred to
as “remarketing firms,” may also offer or sell the securities, if a prospectus supplement so indicates, in connection with
a remarketing arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These
remarketing firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus supplement will identify
and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s compensation.
Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms may be entitled
under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including liabilities under
the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary course of business.
Certain underwriters
may use this prospectus and any accompanying prospectus supplement for offers and sales related to market-making transactions in the securities.
These underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within the
meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions may
qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority, Inc.
Shares of
our common stock sold pursuant to the registration statement of which this prospectus is a part will be authorized for listing and trading
on The Nasdaq Capital Market. The applicable prospectus supplement will contain information, where applicable, as to any other listing,
if any, on The Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the prospectus
supplement. Underwriters may make a market in our common stock, but will not be obligated to do so and may discontinue any market making
at any time without notice. We can make no assurance as to the liquidity of or the existence, development or maintenance of trading markets
for any of the securities.
In order to
facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain
or otherwise affect the price of the securities. This may include over- allotments or short sales of the securities, which involve the
sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover
such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In addition,
these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security in the open market
or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if the securities
sold by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain
the market price of the securities at a level above that which might otherwise prevail in the open market. These transactions may be discontinued
at any time.
The underwriters,
dealers and agents may engage in other transactions with us, or perform other services for us, in the ordinary course of their business.
DESCRIPTION OF COMMON STOCK
We are
authorized to issue 90,000,000 shares of common stock, par value $0.0001 per share. As of December 10, 2021, we had 28,407,257
shares of common stock outstanding and approximately 35 stockholders of record.
The following
summary of certain provisions of our common stock does not purport to be complete. You should refer to the section of this prospectus
entitled “Certain Provisions of Delaware Law and of the Company’s Certificate of Incorporation and Bylaws” and our third
amended and restated certificate of incorporation, as amended (our “Certificate of Incorporation”), and our amended and restated
bylaws (our “Bylaws”), both of which are included as exhibits to the registration statement of which this prospectus is a
part. The summary below is also qualified by provisions of applicable law.
General
We are authorized to issue
one class of common stock. Holders of our common stock are entitled to one vote for each share of common stock held of record for the
election of directors and on all matters submitted to a vote of stockholders, except matters that relate only to one or more of the series
of our preferred stock, and no holder has cumulative voting rights. Accordingly, the holders of a majority of the shares of common stock
entitled to vote in any election of directors can elect all of the directors standing for election, if they so choose. Subject to preferences
that may be applicable to any then outstanding preferred stock, holders of our common stock are entitled to receive dividends ratably,
if any, as may be declared by our board of directors out of legally available funds, subject to any preferential dividend rights of any
preferred stock then outstanding. Upon our dissolution, liquidation or winding up, holders of our common stock are entitled to share ratably
in our net assets legally available after the payment of all our debts and other liabilities, subject to the preferential rights of any
preferred stock then outstanding. Holders of our common stock have no preemptive, subscription, redemption or conversion rights. The rights,
preferences and privileges of holders of common stock are subject to, and may be adversely affected by, the rights of the holders of shares
of any series of preferred stock that are currently designated and issued or that we may designate and issue in the future. Except as
described under “Certain Provisions of Delaware Law and of the Company’s Certificate of Incorporation and Bylaws—Anti-Takeover
Provisions” below, a majority vote of the holders of common stock is generally required to take action under our Certificate of
Incorporation and our Bylaws.
Stock Options and Warrants
As
of December 10, 2021, we had outstanding options to purchase 4,387,051 shares of our common stock at a weighted average price
of $3.88 per share under our 2014 Equity Incentive Plan and 2018 Omnibus Stock Incentive Plan.
All of our stock options expire 10 years after their grant date.
As of
December 10, 2021, we had outstanding warrants to purchase 1,217,715 shares of our common stock at exercise prices ranging from
$2.47 to $4.76 per share. 1,125,831 warrants will expire on March 24, 2025, and 91,884 warrants will expire on May 6,
2031.
Transfer Agent and Registrar
The
transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC,
with offices at 6201 15th Avenue, Brooklyn, New York 11219.
Stock Exchange Listing
Our common
stock is listed for quotation on The Nasdaq Capital Market under the symbol “EYEN.”
DESCRIPTION OF PREFERRED STOCK
The following description
of our preferred stock and the description of the terms of any particular series of preferred stock that we choose to issue hereunder
are not complete. These descriptions are qualified in their entirety by reference to our Certificate of Incorporation and the certificate
of designation relating to any series of preferred stock issued by us. The rights, preferences, privileges and restrictions of the preferred
stock of each series will be fixed by the certificate of designation relating to that series.
We are authorized, without
action by the stockholders, to designate and issue up to an aggregate of 6,000,000 shares of preferred stock, par value $0.0001 per share.
As of the date of this prospectus, no shares of our preferred stock were outstanding or designated. The following summary of certain provisions
of our preferred stock does not purport to be complete. You should refer to our Certificate of Incorporation and our Bylaws, both of which
are included as exhibits to the registration statement of which this prospectus is a part. The summary below is also qualified by provisions
of applicable law.
General
Our board of directors can
designate the rights, preferences and privileges of the shares of each series and any of its qualifications, limitations or restrictions.
Our board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the
voting power or other rights of the holders of common stock. The issuance of preferred stock, while providing flexibility in connection
with possible future financings and acquisitions and other corporate purposes could, under certain circumstances, have the effect of restricting
dividends on our common stock, diluting the voting power of our common stock, impairing the liquidation rights of our common stock, or
delaying, deferring or preventing a change in control of our Company, which might harm the market price of our common stock. See also
“Certain Provisions of Delaware Law and of the Company’s Certificate of Incorporation and Bylaws—Anti-Takeover Provisions.”
Our board of directors will make any determination to issue such shares based on its judgment as to our Company’s best interests
and the best interests of our stockholders.
If we offer a specific series
of preferred stock under this prospectus, we will describe the terms of the preferred stock in the prospectus supplement for such offering
and will file a copy of the amended and restated certificate establishing the terms of the preferred stock with the SEC. To the extent
required, this description will include:
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the maximum number of shares;
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the designation of the shares;
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the annual dividend rate, if any, whether the dividend rate is fixed or variable, the date or dates on which dividends will accrue,
the dividend payment dates, and whether dividends will be cumulative;
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the price and the terms and conditions for redemption, if any, including redemption at the option of F-star or at the option of the
holders, including the time period for redemption, and any accumulated dividends or premiums;
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the liquidation preference, if any, and any accumulated dividends upon the liquidation, dissolution or winding up of our affairs;
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any sinking fund or similar provision, and, if so, the terms and provisions relating to the purpose and operation of the fund;
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the terms and conditions, if any, for conversion or exchange of shares of any other class or classes of our capital stock or any series
of any other class or classes, or of any other series of the same class, or any other securities or assets, including the price or the
rate of conversion or exchange and the method, if any, of adjustment;
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any or all other preferences and relative, participating, optional or other special rights, privileges or qualifications, limitations
or restrictions; and
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any preferred stock issued will be fully paid and nonassessable upon issuance.
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Transfer Agent and Registrar
The transfer agent and registrar for any series
of preferred stock that is designated by our board of directors will be set forth in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
The following description,
together with the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions
of the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any future
debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities that we may offer
in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of any debt securities
offered under such prospectus supplement may differ from the terms we describe below, and to the extent the terms set forth in a prospectus
supplement differ from the terms described below, the terms set forth in the prospectus supplement shall control.
We may sell from time to time,
in one or more offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt
securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any such
subordinated debt securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated indenture.
We have filed forms of these documents as exhibits to the registration statement, of which this prospectus is a part. We use the term
“indentures” to refer to either the senior indenture or the subordinated indenture, as applicable. The indentures will be
qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term “debenture trustee”
to refer to either the trustee under the senior indenture or the trustee under the subordinated indenture, as applicable.
The following summaries of
material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in
their entirety by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture provides that
debt securities may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units
based on or relating to foreign currencies. Neither indenture limits the amount of debt securities that may be issued thereunder, and
each indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an
authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement
the following terms relating to a series of debt securities:
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the title or designation;
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the aggregate principal amount and any limit on the amount that may be issued;
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the currency or units based on or relating to currencies in which debt securities of such series are denominated and the currency
or units in which principal or interest or both will or may be payable;
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whether we will issue the series of debt securities in global form, the terms of any global securities and who the depositary will
be;
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the maturity date and the date or dates on which principal will be payable;
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the interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the date or dates interest will be payable and the record dates for interest payment dates or the method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place or places where payments will be payable;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we may, at our option, redeem the series of debt securities pursuant to any
optional redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund provisions or otherwise,
to redeem, or at the holder’s option to purchase, the series of debt securities;
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whether the indenture will restrict our ability to pay dividends, or will require us to maintain any asset ratios or reserves;
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whether we will be restricted from incurring any additional indebtedness;
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a discussion of any material or special U.S. federal income tax considerations applicable to a series of debt securities;
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the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities.
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We may issue debt securities
that provide for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity
pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special
considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the prospectus
supplement the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our
other securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection in Event of a Change
of Control or Highly Leveraged Transaction
The indentures do not contain
any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially
all of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or the
debt securities, as appropriate.
Unless we state otherwise
in the applicable prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities
protection in the event we have a change of control or in the event of a highly leveraged transaction (whether or not such transaction
results in a change of control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The following are events of
default under the indentures with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and our failure continues for 90 days and the time for payment has
not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due and the time for payment has not been extended
or delayed;
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if we fail to observe or perform any other covenant set forth in the debt securities of such series or
the applicable indentures, other than a covenant specifically relating to and for the benefit of holders of another series of debt securities,
and our failure continues for 90 days after we receive written notice from the debenture trustee or holders of not less than a majority
in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur as to us.
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No event of default with respect
to a particular series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes
an event of default with respect to any other series of debt securities. The occurrence of an event of default may constitute an event
of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence of certain events
of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness outstanding
from time to time.
If an event of default with
respect to debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less
than a majority in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the debenture
trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities of that series are
discount securities, that portion of the principal amount as may be specified in the terms of that series) of and premium and accrued
and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree for payment of the money due has been
obtained with respect to debt securities of any series, the holders of a majority in principal amount of the outstanding debt securities
of that series (or, at a meeting of holders of such series at which a quorum is present, the holders of a majority in principal amount
of the debt securities of such series represented at such meeting) may rescind and annul the acceleration if all events of default, other
than the non-payment of accelerated principal, premium, if any, and interest, if any, with respect to debt securities of that series,
have been cured or waived as provided in the applicable indenture (including payments or deposits in respect of principal, premium or
interest that had become due other than as a result of such acceleration). We refer you to the prospectus supplement relating to any series
of debt securities that are discount securities for the particular provisions relating to acceleration of a portion of the principal amount
of such discount securities upon the occurrence of an event of default.
Subject to the terms of the
indentures, if an event of default under an indenture shall occur and be continuing, the debenture trustee will be under no obligation
to exercise any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series
of debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture trustee, with respect to
the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action that
might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities
of any series will only have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek
other remedies if:
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the holder previously has given written notice to the debenture trustee of a continuing event of default
with respect to that series;
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the holders of at least a majority in aggregate principal amount of the outstanding debt securities of
that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute the proceeding
as trustee; and
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the debenture trustee does not institute the proceeding and does not receive from the holders of a majority
in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such series at which a
quorum is present, the holders of a majority in principal amount of the debt securities of such series represented at such meeting) other
conflicting directions within 60 days after the notice, request and offer.
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These limitations do not apply
to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the
debt securities.
We will periodically file
statements with the applicable debenture trustee regarding our compliance with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and
we may change the applicable indenture without the consent of any holders with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the indenture; and
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to change anything that does not materially adversely affect the interests of any holder of debt securities
of any series issued pursuant to such indenture.
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In addition, under the indentures,
the rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the holders
of at least a majority in aggregate principal amount of the outstanding debt securities of each series (or, at a meeting of holders of
such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented
at such meeting) that is affected. However, the debenture trustee and we may make the following changes only with the consent of each
holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest, or any
premium payable upon the redemption of any debt securities;
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reducing the principal amount of discount securities payable upon acceleration of maturity;
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making the principal of or premium or interest on any debt security payable in currency other than that
stated in the debt security; or
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reducing the percentage of debt securities, the holders of which are required to consent to any amendment
or waiver.
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Except for certain specified
provisions, the holders of at least a majority in principal amount of the outstanding debt securities of any series (or, at a meeting
of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series
represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with provisions of
the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf of the holders
of all the debt securities of such series waive any past default under the indenture with respect to that series and its consequences,
except a default in the payment of the principal of, premium or any interest on any debt security of that series or in respect of a covenant
or provision, which cannot be modified or amended without the consent of the holder of each outstanding debt security of the series affected;
provided, however, that the holders of a majority in principal amount of the outstanding debt securities of any series may
rescind an acceleration and its consequences, including any related payment default that resulted from the acceleration.
Discharge
Each indenture provides that
we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
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register the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights
to be discharged with respect to a series, we must deposit with the trustee money or government obligations sufficient to pay all the
principal of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the debt securities
of each series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company
or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder,
subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the
indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt
securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office of any
transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents for transfer
or exchange or in the applicable indenture, we will make no service charge for any registration of transfer or exchange, but we may require
payment of any taxes or other governmental charges.
We will name in the applicable
prospectus supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate
for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve
a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series.
If we elect to redeem the
debt securities of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period beginning
at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for
redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or in part,
except the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Debenture Trustee
The debenture trustee, other
than during the occurrence and continuance of an event of default under the applicable indenture, undertakes to perform only those duties
as are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under such
indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures at the request
of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses and liabilities that
it might incur.
Payment and Paying Agents
Unless we otherwise indicate
in the applicable prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the
person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular
record date for the interest.
We will pay principal of and
any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that
unless we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which we will mail to the
holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture trustee
in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name in the applicable
prospectus supplement any other paying agents that we initially designate for the debt securities of a particular series. We will maintain
a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying
agent or the debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed
at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the
security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt
securities will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust
Indenture Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant to
any subordinated debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness we may
incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase
shares of our common stock, preferred stock and/or debt securities in one or more series together with other securities or separately,
as described in the applicable prospectus supplement.
Below is a description of
certain general terms and provisions of the warrants that we may offer. Particular terms of the warrants will be described in the warrant
agreements and the prospectus supplement relating to the warrants.
The applicable prospectus
supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if applicable, the exercise price for shares of our common stock and the number of shares of common stock
to be received upon exercise of the warrants;
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if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred
stock to be received upon exercise, and a description of that series of our preferred stock;
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if applicable, the exercise price for our debt securities, the amount of debt securities to be received
upon exercise, and a description of that series of debt securities;
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the date on which the right to exercise the warrants will begin and the date on which that right will
expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise
the warrants;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form
or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the
unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any other depositaries, execution or paying
agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants
on any securities exchange;
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if applicable, the date from and after which the warrants and the common stock, preferred stock and/or
debt securities will be separately transferable;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the anti-dilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants may be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange
and exercise of the warrants.
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Transfer Agent and Registrar
The transfer agent and registrar
for any warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description,
together with the additional information that we include in any applicable prospectus supplements summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units that
we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable prospectus
supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference
from reports that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and
any supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related to the particular
series of units that we may offer under this prospectus, as well as any related free writing prospectuses and the complete unit agreement
and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting
of common stock, preferred stock, one or more debt securities, warrants or rights for the purchase of common stock, preferred stock and/or
debt securities in one or more series, in any combination. Each unit will be issued so that the holder of the unit is also the holder
of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each security included
in the unit. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred
separately, at any time or at any time before a specified date.
We will describe in the applicable
prospectus supplement the terms of the series of units being offered, including:
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the designation and terms of the units and of the securities comprising the units, including whether and
under what circumstances those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities
comprising the units.
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The provisions described
in this section, as well as those set forth in any prospectus supplement or as described under “Description of Common Stock,”
“Description of Preferred Stock,” “Description of Debt Securities,” “Description of Warrants,” and
“Description of Rights” will apply to each unit, as applicable, and to any common stock, preferred stock, debt security, warrant
or right included in each unit, as applicable.
Unit Agent
The name and address of the
unit agent, if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such
amounts and in such numerous distinct series as we determine.
Enforceability of Rights by Holders of Units
Each unit agent will act
solely as our agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any
holder of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no
duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of the related
unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security included in the
unit.
DESCRIPTION OF RIGHTS
General
We may issue rights to our
stockholders to purchase shares of our common stock, preferred stock or the other securities described in this prospectus. We may offer
rights separately or together with one or more additional rights, debt securities, preferred stock, common stock or warrants, or any combination
of those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued under
a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent will act solely
as our agent in connection with the certificates relating to the rights of the series of certificates and will not assume any obligation
or relationship of agency or trust for or with any holders of rights certificates or beneficial owners of rights. The following description
sets forth certain general terms and provisions of the rights to which any prospectus supplement may relate. The particular terms of the
rights to which any prospectus supplement may relate and the extent, if any, to which the general provisions may apply to the rights so
offered will be described in the applicable prospectus supplement. To the extent that any particular terms of the rights, rights agreement
or rights certificates described in a prospectus supplement differ from any of the terms described below, then the terms described below
will be deemed to have been superseded by that prospectus supplement. We encourage you to read the applicable rights agreement and rights
certificate for additional information before you decide whether to purchase any of our rights. We will provide in a prospectus supplement
the following terms of the rights being issued:
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the date of determining the stockholders entitled to the rights distribution;
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the aggregate number of shares of common stock, preferred stock or other securities purchasable upon exercise
of the rights;
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the aggregate number of rights issued;
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whether the rights are transferrable and the date, if any, on and after which the rights may be separately
transferred;
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the date on which the right to exercise the rights will commence, and the date on which the right to exercise
the rights will expire;
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the method by which holders of rights will be entitled to exercise;
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the conditions to the completion of the offering, if any;
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the withdrawal, termination and cancellation rights, if any;
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whether there are any backstop or standby purchaser or purchasers and the terms of their commitment, if
any;
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whether stockholders are entitled to oversubscription rights, if any;
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any applicable material U.S. federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution,
exchange and exercise of the rights, as applicable.
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Each right will entitle the
holder of rights to purchase for cash the principal amount of shares of common stock, preferred stock or other securities at the exercise
price provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration
date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights
as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed
at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable,
forward the shares of common stock, preferred stock or other securities, as applicable, purchasable upon exercise of the rights. If less
than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other
than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby
arrangements, as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any rights
we offer will be set forth in the applicable prospectus supplement.
CERTAIN PROVISIONS OF DELAWARE
LAW AND OF THE COMPANY’S CERTIFICATE OF INCORPORATION AND BYLAWS
Anti-Takeover Provisions
The provisions
of Delaware law, our Certificate of Incorporation and Bylaws may have the effect of delaying, deferring or discouraging another person
from acquiring control of our company.
Delaware Law
We are subject
to Section 203 of the Delaware General Corporation Law (“DGCL”). Subject to certain exceptions, Section 203 prevents
a publicly held Delaware corporation from engaging in a “business combination” with any “interested stockholder”
for three years following the date that the person became an interested stockholder, unless the interested stockholder attained such status
with the approval of our board of directors or unless the business combination is approved in a prescribed manner. A “business combination”
includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale of more
than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning 15% or more of
our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity or person.
Board of Directors
Our Certificate
of Incorporation and Bylaws provide that any or all of the directors may be removed from office at any time, but only for cause and only
by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting together as a single class; however, whenever the holders of one or more
series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of
office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such
series of the Preferred Stock. Under our Certificate of Incorporation and Bylaws, any vacancy on our board of directors, including a vacancy
resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors then in office. Furthermore,
our Certificate of Incorporation provides that the authorized number of directors may be changed only by the resolution of our board of
directors, subject to the rights of any holders of preferred stock to elect directors. The classification of our board of directors and
the limitations on the ability of our stockholders to remove directors, change the authorized number of directors and fill vacancies could
make it more difficult for a third party to acquire, or discourage a third party from seeking to acquire, control of our company.
Authorized but Unissued
Shares
The
authorized but unissued shares of common stock and preferred stock are available for future issuance without stockholder approval, subject
to any limitations imposed by the listing standards of any exchange on which our shares are listed. These additional shares may be used
for a variety of corporate finance transactions, acquisitions and employee benefit plans. The existence of authorized but unissued and
unreserved common stock and preferred stock could make more difficult or discourage an attempt to obtain control of us by means of a proxy
contest, tender offer, merger or otherwise.
Special Meeting of Stockholders;
Advance Notice Requirements for Stockholder Proposals and Director Nominations
Special
meetings of our stockholders can be called only by the chairman of the Board of Directors, the President, Chief Executive Officer or such
other persons designated by the Board of Directors. In addition, stockholders must provide advance notice to nominate persons for election
to our Board of Directors or submit proposals for consideration at stockholder meetings.
Amendment
of By-laws
The
General Corporation Law of the State of Delaware provides generally that the affirmative vote of a majority of the shares entitled to
vote on any matter is required to amend a corporation’s certificate of incorporation or by-laws, unless a corporation’s certificate
of incorporation or by-laws, as the case may be, require a greater percentage. Our by-laws may be amended or repealed by a majority vote
of our board of directors or the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares
of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, provided
however that that no by-laws adopted by the stockholders may invalidate any prior act of the board of directors that would have been valid
if such by-laws had not been adopted.
Limitation of Liability
and Indemnification
We are incorporated under the laws of the State
of Delaware. Section 145 of the 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:
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breach of a director’s duty of loyalty to the corporation or its stockholders;
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act or omission not in good faith or that involves intentional misconduct or a knowing violation of law;
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unlawful payment of dividends, stock purchase or redemption of shares; or
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transaction from which the director derives an improper personal benefit.
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Our Certificate of
Incorporation provides that we will indemnify and hold harmless each person who is or was made a party or is threatened to be made a party
to or is otherwise involved in any threatened pending or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (a "proceeding") by reason of the fact that he or she is or was a director or officer of the Corporation or,
while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, general partner,
manager, managing member, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust,
other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an "indemnitee"), whether
the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity
while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation,
attorneys' fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee
in connection with such proceeding. 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.
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.
The foregoing
discussion of our Certificate of Incorporation, Bylaws, indemnification agreements, indemnity agreement, and Delaware law is not intended
to be exhaustive and is qualified in its entirety by our Certificate of Incorporation, Bylaws, indemnification agreements and by applicable
law.
Insofar as
indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant
to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
Provisions of our Certificate
of Incorporation on Choice of Forum
Unless we
consent to the selection of an alternative forum, our Certificate of Incorporation provides that the Court of Chancery of the State of
Delaware, or the Court of Chancery, will be, to the fullest extent permitted by law, the sole and exclusive forum for any derivative action
or proceeding brought on our behalf; any action asserting a claim of breach of fiduciary duty owed by any of our directors, officers or
other employees or agent to the Company or our stockholders; any action asserting a claim against us arising pursuant to the DGCL, or
our Certificate of Incorporation or Bylaws; any action to enforce or determine the validity of our Certificate of Incorporation or Bylaws;
or any action asserting a claim against us that is governed by the internal affairs doctrine. Since the choice of forum provisions are
only applicable to “the fullest extent permitted by law”, as provided in our Certificate of Incorporation, the provisions
do not designate the Court of Chancery as the exclusive forum for any derivative action or other claim for which the applicable statute
creates exclusive jurisdiction in another forum. As such, the choice of forum provisions do not apply to any actions arising under the
Securities Act or the Exchange Act.
We believe
the choice of forum provisions in our Certificate of Incorporation may benefit us by providing increased consistency in the application
of Delaware law, where permitted, by chancellors and judges particularly experienced in resolving corporate disputes, efficient administration
of cases on a more expedited schedule relative to other forums and protection against the burdens of multi-forum litigation. However,
the provision may have the effect of discouraging lawsuits against our directors, officers, employees, and agents as it may limit any
stockholder’s ability to bring a claim in a judicial forum that such stockholder finds favorable for disputes with us or our directors,
officers, employees, or agents and result in increased costs for stockholders to bring a claim. The enforceability of similar choice of
forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible
that, in connection with any applicable action brought against us, a court could find the choice of forum provisions contained in our
Certificate of Incorporation to be inapplicable or unenforceable in such action.
LEGAL MATTERS
Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., Boston, Massachusetts, will pass upon the validity of the issuance of the securities to be offered
by this prospectus.
EXPERTS
The financial
statements of Eyenovia, Inc. as of December 31, 2020 and 2019 and for each of the two years in the period ended December 31,
2020, have been audited by Marcum LLP, independent registered public accounting firm, as stated in their report, which includes an explanatory
paragraph as to the Company’s ability to continue as a going concern, which is incorporated herein by reference. Such financial
statements of Eyenovia, Inc. are incorporated in this prospectus by reference in reliance on the report of such firm given upon their
authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
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. SEC filings are available at the SEC’s web site at http://www.sec.gov. This prospectus is only part of a registration
statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore omits certain information contained
in the registration statement. We have also filed exhibits and schedules with the registration statement that are excluded from this prospectus,
and you should refer to the applicable exhibit or schedule for a complete description of any statement referring to any contract or other
document.
We
also maintain a website at http://www.eyenovia.com, through which you can access our SEC filings.
The information set forth on our website is not part of this prospectus.
INCORPORATION OF DOCUMENTS BY
REFERENCE
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 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 we may offer pursuant to this prospectus. 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 we may offer pursuant to this prospectus. Statements
in this prospectus 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 accessed on the SEC website as noted above in “Where
You Can Find More Information.” The documents we are incorporating by reference are:
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our Current Reports on Form 8-K that we filed with the SEC on February 3,
2021, March 2,
2021, March 15,
2021, April 1,
2021, May 5,
2021, May 10,
2021, May 14,
2021, May 25,
2021, June 15,
2021, June 16,
2021, June 21,
2021, August 11,
2021, September 15,
2021, October 25,
2021, November 5,
2021, November 10,
2021, December 3,
2021, and December 6,
2021 (except for the information furnished under Items 2.02 or 7.01 and the exhibits furnished
thereto);
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the description of our common stock contained in our Registration Statement on Form 8-A filed on January 24, 2018, including any amendment or report filed for the purpose of updating such description; and
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all reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Exchange Act after the date of this prospectus and prior to the termination or completion of the offering of securities under this
prospectus shall be deemed to be incorporated by reference in this prospectus and to be a part hereof from
the date of filing such reports and other documents.
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The SEC file
number for each of the documents listed above is 001-38365.
In addition,
all reports and other documents filed by us pursuant to the Exchange Act after the date of the initial registration statement and prior
to effectiveness of the registration statement shall be deemed to be incorporated by reference into this prospectus.
Any statement
contained in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed
to be modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or any other
subsequently filed document that is deemed to be incorporated by reference into this prospectus 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.
You may request,
orally or in writing, a copy of any or all of the documents incorporated herein by reference. These documents will be provided to you
at no cost, by contacting:
Eyenovia, Inc.
295 Madison Avenue
Suite 2400
New York, NY 10017
Attn: Corporate Secretary.
(917) 289-1117
You
may also access these documents on our website, http://www.eyenovia.com. The information contained
on, or that can be accessed through, our website is not a part of this prospectus. We have included our website address in this prospectus
solely as an inactive textual reference.
You should
rely only on information contained in, or incorporated by reference into, this prospectus and any prospectus supplement. We have not authorized
anyone to provide you with information different from that contained in this prospectus or incorporated by reference in this prospectus.
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.
$100,000,000
Common Stock
Preferred Stock
Debt Securities
Warrants
Rights
Units
PROSPECTUS
, 2021
SUBJECT TO
COMPLETION, DATED DECEMBER 14, 2021
THE INFORMATION IN THIS PROSPECTUS IS
NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL 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 IS NOT SOLICITING AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
PROSPECTUS
Up to $50,000,000
Common Stock
We have entered into an
open market sales agreement, the Sales Agreement, with SVB Leerink LLC, or SVB Leerink, relating to the sale of shares of our common
stock offered by this prospectus. In accordance with the terms of the Sales Agreement, we may offer and sell shares of our common stock,
$0.0001 par value per share, having an aggregate offering price of up to $50,000,000 from time to time through or to SVB Leerink, acting
as our agent.
Our common stock is listed
on The Nasdaq Capital Market under the symbol “EYEN”. On December 10, 2021, the last reported sale price of our common
stock on The Nasdaq Capital Market was $3.76 per share.
Sales of the common stock,
if any, under this prospectus may be made in sales deemed to be an “at the market offering” as defined in Rule 415(a)(4) promulgated
under the Securities Act of 1933, as amended, or the Securities Act. SVB Leerink is not required to sell any specific amount of securities,
but will act as our sales agent using commercially reasonable efforts consistent with its normal trading and sales practices, on mutually
agreed terms between SVB Leerink and us. There is no arrangement for funds to be received in any escrow, trust or similar arrangement.
The compensation to SVB
Leerink for sales of our common stock will be 3.0% of the gross sales price per share sold. See “Plan of Distribution” beginning
on page S-15 for additional information regarding the compensation to be paid to SVB Leerink. In connection with the sale
of the common shares on our behalf, SVB Leerink will be deemed to be an “underwriter” within the meaning of the Securities
Act and the compensation of SVB Leerink will be deemed to be underwriting commissions. We have also agreed to provide indemnification
and contribution to SVB Leerink with respect to certain liabilities, including liabilities under the Securities Act.
We are an “emerging growth
company” and a “smaller reporting company” under applicable Securities and Exchange Commission rules and are subject
to reduced public company reporting requirements for this prospectus and future filings.
INVESTING IN OUR COMMON
STOCK INVOLVES A HIGH DEGREE OF RISK. YOU SHOULD REVIEW CAREFULLY THE RISKS AND UNCERTAINTIES DESCRIBED UNDER THE HEADING “RISK
FACTORS” ON PAGE S-8 OF THIS PROSPECTUS, AND UNDER SIMILAR HEADINGS IN THE DOCUMENTS THAT ARE INCORPORATED BY REFERENCE
INTO THIS PROSPECTUS.
Neither the Securities
and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus
are truthful or complete. Any representation to the contrary is a criminal offense.
SVB Leerink
Prospectus dated ,
2021
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus
is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf”
registration process. Under this shelf registration process, we may from time to time sell shares of our common stock having an aggregate
offering price of up to $50,000,000 under this prospectus at prices and on terms to be determined by market conditions at the time of
the offering.
Before buying
any of the common stock that we are offering, we urge you to carefully read this prospectus and all of the information incorporated by
reference herein and therein, as well as the additional information described under the headings “Where You Can Find More Information”
and “Incorporation of Documents by Reference.” These documents contain important information that you should consider when
making your investment decision.
To the extent
there is a conflict between the information contained in this prospectus, on the one hand, and the information contained in any document
incorporated by reference in this prospectus, on the other hand, you should rely on the information in this prospectus. If any statement
in one of these documents is inconsistent with a statement in another document having a later date—for example, a document incorporated
by reference in this prospectus—the statement in the document having the later date modifies or supersedes the earlier statement.
You should
rely only on the information contained in or incorporated by reference in this prospectus and any related free writing prospectus filed
by us with the SEC. We have not, and SVB Leerink has not, authorized anyone to provide you with different information. If anyone provides
you with different or inconsistent information, you should not rely on it. This prospectus does 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 an offer to sell or the solicitation
of an offer to buy such securities in any circumstances in which such offer or solicitation is unlawful. You should assume that the information
appearing in this prospectus, 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.
We further
note that the representations, warranties and covenants made by us in any agreement that is filed as an exhibit to any document that
is incorporated by reference in the prospectus were made solely for the benefit of the parties to such agreement, including, in some
cases, for the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty
or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
Unless the
context otherwise requires, “Eyenovia,” “the Company,” “we,” “us,” “our”
and similar terms refer to Eyenovia, Inc. and our subsidiaries.
INDUSTRY AND MARKET DATA
We obtained the
industry, statistical and market data in this prospectus from our own internal estimates and research, as well as from industry and
general publications and research, surveys and studies conducted by third parties. In presenting this information, we have made
assumptions based on such data and other similar sources, and on our knowledge of, and our experience to date in, the potential
markets for our product candidates. Although we believe the data from these third-party sources is reliable and are responsible for
the accuracy of such data, we have not independently verified any third-party information. The industry in which we operate is subject
to a high degree of uncertainty and risk due to a variety of factors, including those described in the section entitled “Risk
Factors”. These and other factors could cause results to differ materially from those expressed in the estimates made by third
parties and by us.
PROSPECTUS SUMMARY
The following
is a summary of what we believe to be the most important aspects of our business and the offering of our securities under this prospectus.
We urge you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated
financial statements and other information incorporated by reference from our other filings with the SEC. Investing in our securities
involves risks. Therefore, carefully consider the risk factors set forth in our most recent annual and quarterly filings with the SEC,
as well as other information in this prospectus and the documents incorporated by reference herein or therein, before purchasing our
securities. Each of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely
affect the value of an investment in our securities.
About Eyenovia, Inc.
We are a clinical stage ophthalmic
biopharmaceutical company developing a pipeline of advanced therapeutics based on our proprietary microdose array print (MAP™)
therapeutics. We aim to achieve clinical microdosing of next-generation formulations of well-established ophthalmic pharmaceutical agents
using our high-precision targeted ocular delivery system, branded the Optejet® which has the potential to replace conventional eye
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%). Our technology is designed to achieve single-digit µl-volume physiologic
drug delivery with up to a 75% reduction in ocular drug and preservative topical dosing and has demonstrated significant improvement
in the therapeutic index in drugs used for mydriasis and IOP lowering through three Phase II and Phase III trials. Conventional eye formulations
lack high-precision micro-volume delivery and expose the ocular surface to approximately 300% more medication and preservatives than
are physiologically indicated leading to clinically recognized ocular and non-ocular side effects. Using the Optejet, we are developing
the next generation of smart ophthalmic therapeutics which target new indications or new combinations where there are currently no comparable
drug therapies approved by the U.S. Food and Drug Administration, (the “FDA”). Our microdose therapeutics follow the FDA-designated
pharmaceutical registration and regulatory process. Consistent with the recent FDA reclassification of MydCombi, we believe that most
of our product candidates are, or will be, classified by the FDA as drug-led combination products.
Our pipeline is currently
focused on the late-stage development of novel, potential first-in-class therapeutic indications for over an estimated five million potential
patients with progressive myopia in the United States and over an estimated one hundred million potential patients with age-related near
vision impairment, or presbyopia - indications where there is tremendous unmet need and no known existing FDA-approved therapies. We
are also developing the first microdose fixed combination ophthalmic pharmaceutical for mydriasis to address the estimated over 100 million
annual comprehensive eye exams with pupil dilation.
MicroPine is our investigational
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. In the United States, myopia is estimated to affect approximately 25 million children, with
up to five million considered to be at risk for high myopia. In February 2019, the FDA accepted our investigational new drug application,
or IND, to initiate a Phase III registration trial of MicroPine (the CHAPERONE study) to reduce the progression of myopia in children.
We enrolled the first patient in the CHAPERONE study in June 2019. Due to the COVID-19 pandemic, we experienced delays in trial
enrollment and initiation as a result of reduced clinical trial activities and operations at investigator sites during the first half
of 2020. However, we have since been able to resume enrollment in the CHAPERONE study at a slower pace than initially planned.
On October 9, 2020,
we entered into a License Agreement (the “Bausch License Agreement”) with a subsidiary of Bausch Health Companies Inc. (“Bausch
Health”) pursuant to which Bausch Health may develop and commercialize MicroPine in the United States and Canada. Under the terms
of the Bausch License Agreement, we received an upfront payment of $10.0 million and we may receive up to a total of $35.0 million in
additional payments, based on the achievement of certain regulatory and launch-based milestones. Bausch Health also will pay us royalties
on a tiered basis (ranging from mid-single digit to mid-teen percentages) on gross profits from sales of MicroPine in the United States
and Canada, subject to certain adjustments. Under the terms of the Bausch License Agreement, Bausch Health is in the process of assuming
oversight for, and has assumed the costs related to the ongoing CHAPERONE study.
MicroLine is our investigational
pharmacologic treatment for presbyopia. Presbyopia is a non-preventable, age-related hardening of the lens, which causes the gradual
loss of the eye’s ability to focus at near and impairs near visual acuity. 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. We have
two planned Phase III VISION trials for MicroLine, and initiated the first of these trials in December 2020. On May 25, 2021,
we announced positive topline data from the Phase III VISION-1 study evaluating MicroLine for the temporary improvement of near vision
in adults with presbyopia. The study achieved its primary endpoint and the Company recently initiated VISION -2, a second Phase III registration
study. VISION-2, is a double-masked, placebo-controlled, cross-over superiority trial designed to enroll 120 patients randomized between
2% pilocarpine and placebo cohorts. Topline data from VISION-2 is anticipated in mid-2022. These studies will serve as the basis for
a planned New Drug Application (NDA) submission to FDA. VISION-1 results will be presented at a future ophthalmic-focused medical meeting.
On August 10, 2020,
we entered into a License Agreement (the “Arctic Vision License Agreement”) with Arctic Vision (Hong Kong) Limited (“Arctic
Vision”), pursuant to which Arctic Vision may develop and commercialize MicroPine and MicroLine in Greater China (mainland China,
Hong Kong, Macau and Taiwan) and South Korea. Under the terms of the Arctic Vision License Agreement, we received an upfront payment
of $4.0 million before any payments to Senju Pharmaceutical Co., Ltd. (“Senju”). In addition, we may receive up to a
total of $43.75 million in additional payments, based on various development and regulatory milestones, including the initiation of clinical
research and approvals in Greater China and South Korea, and development costs. Milestone revenue includes $2.0 million related to the
MicroStat product resulting from Amendment 1 to the Arctic Vision License Agreement between the Company and Arctic Vision which was executed
on September 14, 2021. Arctic Vision also will purchase its supply of MicroPine, MicroLine and MicroStat from us or, for such products
not supplied by us, pay us a mid-single digit percentage royalty on net sales of such products, subject to certain adjustments. We will
pay a mid-double digit percentage of such payments, royalties, or net proceeds of such supply to Senju pursuant to the Exclusive License
Agreement with Senju dated March 8, 2015, as amended by the License Amendment dated April 8, 2020, and a Letter Agreement dated
August 10, 2020 (the “Senju License Agreement”).
The Senju License Agreement
was amended further by the License Amendment 2, effective September 14, 2021 (the “Amendment 2”). The Amendment 2 excludes
Greater China and South Korea from the territory in which Senju was granted an exclusive royalty-bearing license from the Company. In
consideration for this exclusion, and upon and after the execution of Amendment 1 with Arctic Vision, the Company must make payments
to Senju based on non-royalty license revenue and sales revenue, including a one-time upfront payment of $250,000 which represented an
inducement to Senju to approve Amendment 1 of the Arctic Vision License Agreement related to the MicroStat Product. This upfront payment
to Senju was in addition to and separate from the previously established 40% payment on milestone revenue.
MydCombi™ (or MicroStat)
is our fixed combination formulation of phenylephrine-tropicamide for mydriasis, designed to be a novel approach for the estimated over
one hundred million office-based comprehensive and diabetic eye exams performed every year in the United States. We have completed two
Phase III trials for MydCombi and announced positive results from these studies, known as MIST-1 and MIST-2. In March 2021, the
FDA accepted our NDA, for MydCombi for use to achieve mydriasis in routine diagnostic procedures and in conditions where short-term pupil
dilation is desired. On October 25, 2021, the Company announced the reclassification of the Company’s proprietary, first-in-class
combination microdose formulation of tropicamide and phenylephrine for in-office pupil dilation, MydCombi, as a drug-device combination
product by the FDA in a Complete Response Letter (“CRL”) received on October 22, 2021, following a change in the agency’s
legal interpretation of its authorities imposed by a recent court ruling. The Company is preparing the necessary documents for expedited
resubmission of the new drug application for MydCombi in response to the CRL.
We have not received U.S.
marketing approval for any product candidate and we have therefore not generated any revenues from product sales.
Additional Information
For additional
information related to our business and operations, please refer to the reports incorporated herein by reference, including our Annual
Report on Form 10-K for the year ended December 31, 2020, as described under the caption “Incorporation of
Certain Documents by Reference” on page S-17 of this prospectus.
Impact of COVID-19
In March 2020, the World
Health Organization declared COVID-19 a global pandemic and recommended containment and mitigation measures worldwide. The COVID-19 pandemic
has been evolving, and to date has led to the implementation of various responses, including government-imposed quarantines, travel restrictions
and other public health safety measures.
Management continues to closely
monitor the impact of the COVID-19 pandemic on all aspects of the business, including how it will impact operations and the operations
of customers, vendors, and business partners. Due to the COVID-19 pandemic, we have experienced delays in trial enrollment and initiation
as a result of reduced clinical trial activities and operations at investigator sites. However, we have since been able to resume operations
largely as they were prior to the pandemic. The extent to which COVID-19 impacts the future business, results of operation and financial
condition will depend on future developments, which are highly uncertain and cannot be predicted with confidence at this time, such as
the continued duration of the outbreak, new information that may emerge concerning the severity or other strains of COVID-19 or the effectiveness
of actions to contain COVID-19 or treat its impact, among others. If we or any of the third parties with which we engage, however, were
to experience shutdowns or other business disruptions, the ability to conduct our business in the manner and on the timelines presently
planned could be materially and negatively affected, which could have a material adverse impact on business, results of operation and
financial condition. The estimates of the impact on the Company’s business may change based on new information that may emerge
concerning COVID-19 and the actions to contain it or treat its impact and the economic impact on local, regional, national, and international
markets.
Our 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
telephone number is 917-289-1117. We maintain a website at http://www.eyenovia.com, to which we regularly post copies of our press
releases as well as additional information about us. The information contained on, or that can be accessed through, our website is not
a part of this prospectus. We have included our website address in this prospectus solely as an inactive textual reference.
All brand
names or trademarks appearing in this prospectus are the property of their respective holders. Use or display by us of other parties’
trademarks, trade dress, or products in this prospectus is not intended to, and does not, imply a relationship with, or endorsements
or sponsorship of, us by the trademark or trade dress owners.
Implications of Being an Emerging Growth Company
As a company with less than
$1.07 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 (the “JOBS Act”). For so long as we remain an emerging growth company, we are permitted
and intend to rely on exemptions from specified disclosure requirements that are applicable to other public companies that are not emerging
growth companies. These exemptions include:
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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;
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not being required
to comply with the auditor attestation requirements in the assessment of our internal control
over financial reporting;
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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;
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reduced disclosure
obligations regarding executive compensation; and
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exemptions from the
requirements of holding a nonbinding advisory vote on executive compensation and shareholder
approval of any golden parachute payments not previously approved.
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We may take 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 $1.07 billion in annual revenues, have more than $700 million in market value of our capital
stock held by non-affiliates, or issue more than $1.0 billion of non-convertible debt over a three-year period. We may choose to
take advantage of some, but not all, of the available exemptions. We have taken advantage of some reduced reporting burdens in this prospectus
and the documents incorporated by reference into this prospectus. Accordingly, the information contained herein may be different than
the information you receive from other public companies in which you hold stock.
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 not be subject to the same new or revised accounting standards as other public companies that are not emerging growth
companies.
We are also a “smaller
reporting company” as defined under the Securities Act of 1933, as amended and the Securities Exchange Act of 1934, as amended.
We may continue to be a smaller reporting company so long as either (i) the market value of shares of our common stock held by non-affiliates
is less than $250 million or (ii) our annual revenue was less than $100 million during the most recently completed fiscal year and
the market value of shares of our common stock held by non-affiliates is less than $700 million. If we are a smaller reporting company
at the time we cease to be an emerging growth company, we may continue to rely on exemptions from certain disclosure requirements that
are available to smaller reporting companies. Specifically, as a smaller reporting company, we may choose to present only the two most
recent fiscal years of audited financial statements in our Annual Report on Form 10-K and have reduced disclosure obligations regarding
executive compensation, and, similar to emerging growth companies, if we are a smaller reporting company under the requirements of (ii) above,
we would not be required to obtain an attestation report on internal control over financial reporting issued by our independent registered
public accounting firm.
THE OFFERING
Shares of common stock offered by us:
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Shares of our common stock having an aggregate offering price of up to $50,000,000.
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Shares of common stock to be outstanding immediately after this offering:
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Up to 41,705,129 shares, assuming sales of 13,297,872 shares of common stock are made in this
offering at an offering price of $3.76 per share, which was the last reported sale price of shares of our common stock on The Nasdaq
Capital Market on December 10, 2021. The actual number of shares that may be issued will vary depending on the sales price
under this offering.
|
|
|
|
Manner of offering:
|
|
“At the market offering” that may be made from time to time on The Nasdaq Capital Market or other existing trading market for shares of our common stock through or to, SVB Leerink. See the section entitled “Plan of Distribution” on page S-15 of this prospectus.
|
|
|
|
Use of proceeds:
|
|
We intend to use the net proceeds of this offering for working capital and general corporate purposes. See the section titled “Use of Proceeds” on page S-12 of this prospectus.
|
|
|
|
Risk factors:
|
|
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page S-8 of this prospectus and the other information included in, or incorporated by reference into, this prospectus for a discussion of certain factors you should carefully consider before deciding to invest in shares of our common stock.
|
|
|
|
The Nasdaq Capital Market symbol:
|
|
EYEN
|
The number of shares of
our common stock to be outstanding following this offering is based on 28,407,257 shares of our common stock outstanding as of
December 10, 2021 and excludes:
|
·
|
4,387,051 shares of
our common stock underlying outstanding options to purchase common stock under our 2014 Equity
Incentive Plan (the “2014 Plan”) and our Amended and Restated 2018 Omnibus Stock
Incentive Plan (the “2018 Plan”) with a weighted average exercise price of
$3.88 per share;
|
|
·
|
154,047 shares of
our common stock issuable in connection with restricted stock units under our 2014 Plan
and 2018 Plan;
|
|
·
|
684,125 shares of
our common stock reserved for future issuance under our 2014 Plan and 2018 Plan; and
|
|
·
|
warrants for 1,217,715 shares of our common stock, with a weighted average exercise price of
$2.69 per share.
|
Unless otherwise noted, the information in this
prospectus reflects and assumes no exercise of outstanding options and warrants.
RISK FACTORS
Investing in our securities
involves a high degree of risk. You should consider carefully the risks and uncertainties, as well as other information, in this prospectus,
including the risks described under “Risk Factors” in our Annual Report on Form 10-K for the year ended December 31, 2020 which is incorporated herein by reference, and as updated by any other document that we subsequently file with the SEC and that
is incorporated by reference into this prospectus, and any free writing prospectus that we have authorized for use in connection with
this offering. The risks set forth in this prospectus and incorporated herein by reference are those which we believe are the material
risks that we face. These risks are not the only ones facing us and there may be additional matters that we are unaware of or that we
currently consider immaterial. The occurrence of any of such risks may materially and adversely affect our business, financial condition,
results of operations and future prospects. In such an event, the market price of our common stock could decline, and you could lose
part or all of your investment.
Risks Related to this Offering
You may experience immediate and substantial
dilution.
The offering price per share
being offered may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming that an
aggregate of 13,297,872 shares of our common stock are sold during the term of the Sales Agreement with SVB Leerink at a price of $3.76
per share, the last reported sale price of our common stock on The Nasdaq Capital Market on December 10, 2021, the aggregate gross
proceeds will be $50.0 million. After deducting commissions and estimated aggregate offering expenses payable by us, you will experience
immediate dilution of $2.20 per share, representing the difference between our pro forma, as-adjusted net tangible book value per share
as of September 30, 2021, after giving effect to this offering and the assumed offering price. The exercise of outstanding stock
options and warrants may result in further dilution of your investment. See the section entitled “Dilution” below for a more
detailed illustration of the dilution you would incur if you participate in this offering.
We may be required to raise additional
capital by issuing new securities with terms or rights superior to those of our existing securityholders, which could adversely affect
your investment in our company, the market price of shares of our common stock and our business.
We might require additional
financing to fund future operations, including our research and development, manufacturing and any possible sales and marketing activities.
We may not be able to obtain financing on favorable terms, if at all. If we raise additional funds by issuing equity securities, the percentage
ownership of our then current stockholders will be reduced, and the holders of the new equity securities may have rights superior to
those of our then existing securityholders, which could adversely affect the market price of our common stock and the voting power of
shares of our common stock. If we raise additional funds by issuing debt securities, the holders of these debt securities would similarly
have some rights senior to those of our then existing securityholders, and the terms of these debt securities could impose restrictions
on operations and create a significant interest expense for us which could have a materially adverse effect on our business.
Sales of our common stock in this offering,
or the perception that such sales may occur, could cause the market price of our common stock to fall.
We may issue and sell shares
of our common stock for aggregate gross proceeds of up to $50,000,000 from time to time in connection with this offering. The actual
number of shares of common stock that may be issued and sold in this offering, as well as the timing of any such sales, will depend on
a number of factors, including, among others, the prices at which any shares are actually sold in this offering (which may be influenced
by market conditions, the trading price of our common stock and other factors) and our determinations as to the appropriate timing, sources
and amounts of funding we need. The issuance and sale from time to time of these new shares of common stock, or the mere fact that we
are able to issue and sell these shares in this offering, could cause the market price of our common stock to decline.
It is not possible to predict the actual
number of shares of common stock we will sell under the Sales Agreement, or the gross proceeds resulting from those sales.
Subject to certain limitations
in the Sales Agreement and compliance with applicable law, we have the discretion to deliver a placement notice to SVB Leerink at any
time throughout the term of the Sales Agreement. The number of shares that are sold through SVB Leerink after the delivery of a placement
notice will fluctuate based on a number of factors, including the market price of our common stock during the sales period, the limits
we set with SVB Leerink in any applicable placement notice, and the demand for our common stock during the sales period. Because the
price per share will fluctuate during this offering, it is not currently possible to predict the number of shares that will be sold or
the gross proceeds to be raised in connection with those sales.
The common stock offered hereby will be
sold in “at-the-market offerings” and investors who buy shares at different times will likely pay different prices.
Investors who purchase shares
in this offering at different times will likely pay different prices, and accordingly may experience different levels of dilution and
different outcomes in their investment results. We will have discretion, subject to market demand, to vary the timing, prices and number
of shares sold in this offering. Investors may experience a decline in the value of the shares they purchase in this offering as a result
of sales made at prices lower than the prices they paid.
We have broad discretion in the use of
the net proceeds from this offering and may not use them effectively.
Our management will have
broad discretion in the application of the net proceeds from this offering and could spend the proceeds in ways that do not improve our
business, financial condition or results of operations or enhance the value of our common stock. See “Use of Proceeds” on
page S-12 of this prospectus for a description of our proposed use of proceeds from this offering.
The failure by our management
to apply these funds effectively could result in financial losses that could harm our business, cause the price of our common stock to
decline and delay the development of our product candidates. Pending their use, we may invest the net proceeds from this offering in
a manner that does not produce income or that loses value.
We might not be able to continue as a going
concern which would likely cause our stockholders to lose most or all of their investment.
Our audited financial statements
for the year ended December 31, 2020 and our unaudited financial statements for the quarter ended September 30, 2021 were prepared
under the assumption that we would continue as a going concern. However, our independent registered public accounting firm included a
“going concern” explanatory paragraph in its report on our financial statements for the year ended December 31, 2020,
indicating that, without additional sources of funding, our cash at December 31, 2020 is not sufficient for us to operate as a going
concern for a period of at least one year from the date that the financial statements included in our Annual Report on Form 10-K
are issued. Management’s plans concerning these matters, including our need to raise additional capital, are described in Note
2 — Summary of Significant Accounting Policies — Liquidity and Going Concern of our financial
statements included within our Annual Report on Form 10-K for the year ended December 31, 2020 and our Quarterly Report on
Form 10-Q for the quarter ended September 30, 2021, however, management cannot assure you that its plans will be successful.
In light of the foregoing, there is substantial doubt about our ability to continue as a going concern. If we cannot continue as a viable
entity, our stockholders would likely lose most or all of their investment in us.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains
a number of 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. When used in this prospectus and the documents incorporated by reference herein and therein, the words “anticipate”,
“believe”, “estimate”, “expect”, “may”, “will”, “continue” and
“intend”, and words or phrases of similar import are intended to identify forward-looking statements. These statements 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 filed with the SEC under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”), could affect our future results and could cause those results to differ materially
from those expressed in such forward-looking statements:
|
·
|
our
need to raise additional money to fund our operations for the next twelve months as
a going concern;
|
|
·
|
our
estimates regarding expenses, future revenue, timing of any future revenue, capital requirements
and needs for additional financing;
|
|
·
|
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
expectations related to the use of proceeds from our financings;
|
|
·
|
risks
of our and our licensees’ 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;
|
|
·
|
the
timing and our or our licensees’ ability to submit applications for, obtain and maintain
regulatory approval for our product candidates;
|
|
·
|
reliance
on third parties to develop and commercialize certain of our product candidates;
|
|
·
|
our
and our partners’ ability to timely develop, implement and maintain manufacturing,
commercialization and marketing capabilities and strategies for certain of our product candidates;
|
|
·
|
our
estimates regarding the potential market opportunity for our product candidates;
|
|
·
|
the
potential advantages of our product candidates and platform technology and potential revenues
from licensing transactions;
|
|
·
|
the
rate and degree of market acceptance and clinical utility of our product candidates;
|
|
·
|
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;
|
|
·
|
developments
relating to our competitors and our industry;
|
|
·
|
our
ability to maintain and establish collaborations;
|
|
·
|
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,
and the impact of these changes on our ability to 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 and therein might not occur.
USE OF PROCEEDS
We may issue and sell up
to $50,000,000 of our common stock from time to time. Because there is no minimum offering amount required as a condition to close this
offering, the actual total public offering amount, commissions and proceeds to us, if any, are not determinable at this time. There can
be no assurance that we will sell any shares under or fully utilize the Sales Agreement with SVB Leerink as a source of financing.
We intend to use the net
proceeds from this offering, if any, for working capital and general corporate purposes.
As of the date of this prospectus,
we cannot specify with certainty any of the particular uses of the proceeds, if any, from this offering. Accordingly, we will retain
broad discretion over the use of any such proceeds. Pending the use of the net proceeds, if any, from this offering as described above,
we intend to invest the net proceeds in investment-grade, interest-bearing instruments.
UNAUDITED PRO FORMA FINANCIAL INFORMATION
Between October 6, 2021 and
November 10, 2021, the Company sold 2,435,604 shares of common stock for gross proceeds of approximately $12.8 million and net proceeds
of approximately $12.4 million, pursuant to an at-the-market offering (the “Transactions”). The following unaudited pro forma
balance sheet as of September 30, 2021 gives effect to the Transactions, as if the Transactions were consummated on September 30, 2021.
The unaudited pro forma balance
sheet should be read in conjunction with our historical consolidated financial statements and the related notes included in the Annual
Report and Quarterly Reports which are incorporated by reference herein. See “Incorporation of Documents By Reference.” The
unaudited pro forma balance sheet may not be useful in predicting the future financial condition and results of operations of our company.
The actual financial condition and results of operations of our company may differ significantly from the pro forma amounts reflected
herein due to a variety of factors.
|
|
(unaudited)
|
|
|
|
|
|
|
Net Proceeds
|
|
|
|
|
|
|
September 30,
|
|
|
from the
|
|
|
|
|
|
|
2021
|
|
|
Transactions [1]
|
|
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
Assets
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
13,500,871
|
|
|
$
|
12,401,918
|
|
|
$
|
25,902,789
|
|
Restricted cash
|
|
|
7,875,000
|
|
|
|
-
|
|
|
|
7,875,000
|
|
License fee and expense reimbursements receivables
|
|
|
960,180
|
|
|
|
-
|
|
|
|
960,180
|
|
Prepaid expenses and other current assets
|
|
|
1,123,289
|
|
|
|
-
|
|
|
|
1,123,289
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Current Assets
|
|
|
23,459,340
|
|
|
|
12,401,918
|
|
|
|
35,861,258
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Property and equipment, net
|
|
|
1,413,201
|
|
|
|
-
|
|
|
|
1,413,201
|
|
Security deposit
|
|
|
119,035
|
|
|
|
-
|
|
|
|
119,035
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Assets
|
|
$
|
24,991,576
|
|
|
$
|
12,401,918
|
|
|
$
|
37,393,494
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities and Stockholders' Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Current Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
1,684,733
|
|
|
$
|
-
|
|
|
$
|
1,684,733
|
|
Accrued compensation
|
|
|
1,184,236
|
|
|
|
-
|
|
|
|
1,184,236
|
|
Accrued expenses and other current liabilities
|
|
|
552,336
|
|
|
|
-
|
|
|
|
552,336
|
|
Deferred rent - current portion
|
|
|
16,037
|
|
|
|
-
|
|
|
|
16,037
|
|
Deferred license fee
|
|
|
10,000,000
|
|
|
|
-
|
|
|
|
10,000,000
|
|
Notes payable - current portion
|
|
|
7,282,037
|
|
|
|
-
|
|
|
|
7,282,037
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Current Liabilities
|
|
|
20,719,379
|
|
|
|
-
|
|
|
|
20,719,379
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred rent - non-current portion
|
|
|
26,059
|
|
|
|
-
|
|
|
|
26,059
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities
|
|
|
20,745,438
|
|
|
|
-
|
|
|
|
20,745,438
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Commitments and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders' Equity:
|
|
|
|
|
|
|
|
|
|
|
|
|
Preferred stock, $0.0001 par value, 6,000,000 shares authorized
|
|
|
|
|
|
|
|
|
|
|
|
|
Common stock, $0.0001 par value, 90,000,000 shares authorized
|
|
|
2,597
|
|
|
|
244
|
|
|
|
2,841
|
|
Additional paid-in capital
|
|
|
97,446,125
|
|
|
|
12,401,674
|
|
|
|
109,847,799
|
|
Accumulated deficit
|
|
|
(93,202,584
|
)
|
|
|
-
|
|
|
|
(93,202,584
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Stockholders' Equity
|
|
|
4,246,138
|
|
|
|
12,401,918
|
|
|
|
16,648,056
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Liabilities and Stockholders' Equity
|
|
$
|
24,991,576
|
|
|
$
|
12,401,918
|
|
|
$
|
37,393,494
|
|
|
[1]
|
Represents the sale of 2,435,604 shares of common stock for
gross proceeds of approximately $12.8 million and net proceeds of approximately $12.4 million, pursuant to the Transactions.
|
DILUTION
Dilution to purchasers in
this offering represents the difference between the amount per share of common stock paid by purchasers of shares of common stock in this
offering and the pro forma, as adjusted net tangible book value per share of our common stock immediately after this offering. The data
in this section are derived from our balance sheet as of September 30, 2021. Net tangible book value per share of common stock is
equal to our total tangible assets less the amount of our total liabilities, divided by the sum of the number of shares of common stock
outstanding as of September 30, 2021. Our net tangible book value as of September 30, 2021 was $4.2 million, or $0.16 per
share of common stock.
Pro forma net tangible book value per share of
common stock is equal to our net tangible book value as of September 30, 2021, plus the impact of the sales of 2,435,604 shares of our
common stock after September 30, 2021 pursuant to at-the-market offerings of our common stock pursuant to which we generated net proceeds
of $12.4 million. Our pro forma net tangible book value as of September 30, 2021 was $16.6 million, or $0.58 per share of common stock.
We present dilution on a pro
forma, as adjusted basis to give effect to the sale by us of shares of our common stock in this offering in the aggregate amount of $50.0
million, at an assumed public offering price of $3.76 per share of common stock, the last reported sale price of our common stock on The
Nasdaq Capital Market on December 10, 2021, after deducting the underwriting discounts and commissions and estimated offering expenses
payable by us. Our pro forma, as adjusted net tangible book value as of September 30, 2021 would have been $65.0 million, or
$1.56 per share of common stock. This offering represents an immediate increase in net tangible book value to existing stockholders of
$0.98 per share of common stock and immediate dilution in net tangible book value to purchasers of shares of common stock in this offering
of $2.20 per share of common stock. The following table illustrates this dilution per share of common stock:
Assumed public offering price per share
|
|
|
|
|
|
$
|
3.76
|
|
|
Historical net tangible book value per share as of September 30,
2021
|
|
|
$
|
0.16
|
|
|
Pro forma increase in
net tangible book value per share as of September 30, 2021
|
|
|
$
|
0.42
|
|
|
Pro forma net tangible
book value per share as of September 30, 2021.
|
|
|
$
|
0.58
|
|
|
Increase in pro forma
net tangible book value per share attributable to this offering
|
|
|
$
|
0.98
|
|
|
Pro forma, as adjusted tangible
book value per share, after giving effect to this offering
|
|
|
|
|
|
$
|
1.56
|
|
|
Dilution per share
to investors in this offering
|
|
|
|
|
|
$
|
2.20
|
|
|
The above discussion and
tables are based on 25,963,185 shares of our common stock outstanding as of September 30, 2021 and excludes:
|
·
|
4,305,980
shares of our common stock underlying outstanding options to purchase common stock under
our 2014 Plan and our 2018 Plan with a weighted average exercise price of $3.89
per share;
|
|
·
|
105,306
shares of our common stock issuable in connection with restricted stock units under
our 2014 Plan and 2018 Plan;
|
|
·
|
813,937 shares of our common stock reserved for future issuance under our 2014 Plan and 2018 Plan;
and
|
|
·
|
warrants
for 1,226,183 shares of our common stock, with a weighted average exercise price of $2.69
per share.
|
To the extent that any of
these options or warrants are exercised, new options are issued under our 2018 Plan or we issue additional shares of common stock, warrants
or other equity securities in the future, there may be further dilution to investors participating in this offering.
The table above assumes for
illustrative purposes that an aggregate of 13,297,872 shares of our common stock are sold during the term of the Sales Agreement with
the agent at a price of $3.76 per share, the last reported sale price of our common stock on the Nasdaq Capital Market on December 10,
2021, for aggregate gross proceeds of $50,000,000. The shares sold in this offering, if any, will be sold from time to time at various
prices. An increase of $0.25 per share in the price at which the shares are sold from the assumed offering price of $3.76 per share, assuming
all of our common stock in the aggregate amount of $50,000,000 during the term of the Sales Agreement with the agent is sold at that price,
would increase our pro forma, adjusted net tangible book value per share after the offering to $1.59 per share and would increase the
dilution in net tangible book value per share to new investors in this offering to $2.42 per share, after deducting commissions and estimated
offering expenses payable by us. A decrease of $0.25 per share in the price at which the shares are sold from the assumed offering price
of $3.76 per share, assuming all of our common stock in the aggregate amount of $50,000,000 is sold at that price, would decrease our
pro forma, adjusted net tangible book value per share after the offering to $1.52 per share and would decrease the dilution in net tangible
book value per share to new investors in this offering to $1.99 per share, after deducting commissions and estimated offering expenses
payable by us. This information is supplied for illustrative purposes only.
We may choose to raise additional
capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating
plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities, the issuance of these
securities may result in further dilution to our shareholders. To the extent that outstanding options or warrants outstanding as of September 30,
2021 have been or may be exercised or other shares issued, investors purchasing our common stock in this offering may experience further
dilution.
PLAN OF DISTRIBUTION
We have entered into a Sales
Agreement with SVB Leerink under which we may issue and sell shares of common stock having an aggregate offering price of up to $50,000,000
from time to time through SVB Leerink as our sales agent. Sales of shares of common stock, if any, under this prospectus will be made
at market prices by any method that is deemed to be an “at-the-market” offering, as defined in Rule 415 under the Securities
Act, including sales made directly on the Nasdaq Capital Market or any other trading market for our common stock. If authorized by us
in writing, SVB Leerink may purchase shares of our common stock as principal.
SVB Leerink will offer shares
of our common stock subject to the terms and conditions of the Sales Agreement on a daily basis or as otherwise agreed upon by us and
SVB Leerink. We will designate the maximum amount of common stock to be sold through SVB Leerink on a daily basis or otherwise determine
such maximum amount together with SVB Leerink. Subject to the terms and conditions of the Sales Agreement, SVB Leerink will use its commercially
reasonable efforts consistent with its normal trading and sales practices to sell on our behalf all of the shares of common stock requested
to be sold by us. We may instruct SVB Leerink not to sell shares of common stock if the sales cannot be effected at or above the price
designated by us in any such instruction. SVB Leerink or we may suspend the offering of shares of our common stock being made through
SVB Leerink under the Sales Agreement upon proper notice to the other party. SVB Leerink and we each have the right, by giving written
notice as specified in the Sales Agreement, to terminate the Sales Agreement in each party’s sole discretion at any time. The offering
of shares of our common stock pursuant to the Sales Agreement will otherwise terminate upon the termination of the Sales Agreement as
provided therein.
The aggregate compensation
payable to SVB Leerink as sales agent will be an amount equal to 3.0% of the gross proceeds of any shares sold through it pursuant to
the Sales Agreement. We have also agreed to reimburse SVB Leerink up to $75,000 of SVB Leerink’s actual outside legal expenses
incurred by SVB Leerink in connection with this offering. We have also agreed to reimburse SVB Leerink for certain ongoing fees of its
legal counsel. We estimate that the total expenses of the offering payable by us, excluding commissions payable to SVB Leerink under
the Sales Agreement, will be approximately $150,000.
SVB Leerink will provide
written confirmation to us following the close of trading on the Nasdaq Capital Market on each day in which shares of common stock are
sold through it as sales agent under the Sales Agreement. Each confirmation will include the number of shares of common stock sold through
it as sales agent on that day, the volume weighted average price of the shares of common stock sold, the percentage of the daily
trading volume and the net proceeds to us.
Settlement for sales of
shares of common stock will occur, unless the parties agree otherwise, on the second business day that is also a trading day following
the date on which any sales were made in return for payment of the net proceeds to us. There is no arrangement for funds to be received
in an escrow, trust or similar arrangement.
We will report at least
quarterly the number of shares of common stock sold through SVB Leerink under the Sales Agreement, the net proceeds to us and the compensation
paid by us to SVB Leerink in connection with the sales of shares of common stock during the relevant period.
In connection with the sales
of shares of common stock on our behalf, SVB Leerink may be deemed to be an “underwriter” within the meaning of the Securities
Act, and the compensation paid to SVB Leerink may be deemed to be underwriting commissions or discounts. We have agreed in the Sales
Agreement to provide indemnification and contribution to SVB Leerink against certain liabilities, including liabilities under the Securities
Act. As sales agent, SVB Leerink will not engage in any transactions that stabilize our common stock.
LEGAL MATTERS
The validity of the securities
being offered hereby will be passed upon for us by Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. Goodwin Procter LLP, New
York, New York, is representing the agent in connection with the offering.
EXPERTS
The financial statements
of Eyenovia, Inc. as of December 31, 2020 and 2019 and for each of the two years in the period ended December 31, 2020,
have been audited by Marcum LLP, independent registered public accounting firm, as stated in their report, which includes an explanatory
paragraph as to the Company’s ability to continue as a going concern, which is incorporated herein by reference. Such financial
statements of Eyenovia, Inc. are incorporated in this prospectus by reference in reliance on the report of such firm given upon
their authority as experts in accounting and auditing.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
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.
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 and the documents incorporated by reference and any exhibits, 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.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.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
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 information
that we file later with the SEC will automatically update and supersede this information. 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 Current Reports on Form 8-K that we filed with the SEC on February 3,
2021, March 2,
2021, March 15,
2021, April 1,
2021, May 5,
2021, May 10,
2021, May 14,
2021, May 25,
2021, June 15,
2021, June 16,
2021, June 21,
2021, August 11,
2021, September 15,
2021, October 25,
2021, November 5,
2021, November 10,
2021, December 3,
2021, and December 6,
2021 (except for the information furnished under Items 2.02 or 7.01 and the exhibits furnished
thereto);
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|
·
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the
description of our common stock contained in our Registration Statement on Form 8-A filed on January 24, 2018, including any amendment or report filed for the purpose of
updating such description; and
|
|
·
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all
reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination
or completion of the offering of securities under this prospectus shall be deemed to be incorporated
by reference in this prospectus and to be a part hereof from the date of filing such reports
and other documents.
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The SEC file
number for each of the documents listed above is 001-38365.
Any statement contained
in this prospectus or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be
modified or superseded for purposes of this prospectus to the extent that a statement contained in this prospectus or other subsequently
filed document that also is or is deemed to be incorporated by reference into this prospectus 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.
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. We have not authorized anyone to provide you with information
different from that contained in this prospectus or incorporated by reference in this prospectus. 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.
Up to $50,000,000
Common Stock
PROSPECTUS
SVB Leerink
, 2021
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following
table sets forth an itemization of the various expenses, all of which we will pay, in connection with the issuance and distribution of
the securities being registered. All of the amounts shown are estimated except the SEC Registration Fee.
SEC Registration Fee
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|
$
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5,830
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Accounting Fees and Expenses
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|
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15,000
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Legal Fees and Expenses
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125,000
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Miscellaneous
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|
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4,170
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|
Total
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$
|
150,000
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*
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All amounts in the table above except for the SEC Registration Fee relate only to issuances under the at-the-market sales agreement
with SVB Leerink LLC, and accordingly additional expense amounts will be incurred in connection with any other offerings and issuances
hereunder.
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Item 15. Indemnification of Directors and Officers
Section 102 of the General
Corporation Law of the State of Delaware (the “Delaware General Corporation Law”) permits a corporation to eliminate the
personal liability of directors of a corporation to the corporation or its stockholders for monetary damages for a breach of fiduciary
duty as a director, except where the director breached his duty of loyalty, failed to act in good faith, engaged in intentional misconduct
or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law
or obtained an improper personal benefit.
Section 145 of the Delaware
General Corporation Law authorizes a court to award, or a corporation’s board of directors to grant, indemnity to directors and
officers in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities, including reimbursement
for expenses incurred, arising under the Securities Act.
Section 145 of the Delaware General Corporation
Law states:
(a) A corporation shall
have power to indemnify any person who was or is a party or is threatened to be made a party 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 the
corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner
the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding
by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption
that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct
was unlawful.
(b) A corporation shall
have power to indemnify any person who was or is a party 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 to procure a judgment in its favor by reason of the fact that the person is or was
a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person
acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and
except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged
to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was
brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem
proper.
(c) To the extent that
a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit
or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein,
such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in
connection therewith.
(d) Any indemnification
under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper
in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of
this section. Such determination shall be made, with respect to a person who is a director or officer of the corporation at the time
of such determination:
(1) By
a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum; or
(2) By
a committee of such directors designated by majority vote of such directors, even though less than a quorum; or
(3) If
there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion; or
(4) By
the stockholders.
(e) Expenses (including
attorneys’ fees) incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon
receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that
such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’
fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request
of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise
may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
(f) The indemnification
and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote
of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action
in another capacity while holding such office. A right to indemnification or to advancement of expenses arising under a provision of
the certificate of incorporation or a bylaw shall not be eliminated or impaired by an amendment to the certificate of incorporation or
the bylaws after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action,
suit or proceeding for which indemnification or advancement of expenses is sought, unless the provision in effect at the time of such
act or omission explicitly authorizes such elimination or impairment after such action or omission has occurred.
(g) A corporation shall
have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity,
or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against
such liability under this section.
(h) For purposes of
this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director,
officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the
same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such
constituent corporation if its separate existence had continued.
(i) For purposes of
this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall
include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request
of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties
on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants
and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the
corporation” as referred to in this section.
(j) The indemnification
and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors
and administrators of such a person.
(k) The Court of Chancery
is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery
may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).
As permitted by Delaware
law, our third amended and restated certificate of incorporation (“Certificate of Incorporation”) limits or eliminates the
personal liability of our directors to the maximum extent permitted by Delaware law.
Our amended and restated
bylaws (“Bylaws”) provide for indemnification of our directors and executive officers to the maximum extent permitted by
the Delaware General Corporation Law.
In addition, we have entered
into indemnification agreements with each of our current directors and executive officers and we intend to enter into new indemnification
agreements with certain of our current directors and each of our executive officers. These agreements will require us to indemnify these
individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to us and
to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also intend to enter
into indemnification agreements with our future directors and executive officers.
We also maintain standard
policies of insurance under which coverage is provided to our directors and officers against losses arising from claims made by reason
of breach of duty or other wrongful act, and to us with respect to payments which may be made by us to such directors and officers pursuant
to the above indemnification provisions or otherwise as a matter of law
The above discussion of our
Certificate of Incorporation, our Bylaws, our indemnification agreements with our current directors and executive officers and Sections
102 and 145 of the Delaware General Corporation Law is not intended to be exhaustive and is respectively qualified in its entirety by
such Certificate of Incorporation, such Bylaws, such indemnification agreements and such statutes.
To the extent that our directors,
officers and controlling persons are indemnified under the provisions contained in our Certificate of Incorporation, Delaware law or
contractual arrangements against liabilities arising under the Securities Act, we have been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits
The following
exhibits are filed herewith or incorporated herein by reference:
Exhibit Number
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|
Exhibit Description
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Filed
Herewith
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|
Incorporated
by Reference herein from Form or Schedule
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Filing
Date
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SEC
File/ Reg. Number
|
|
|
|
|
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|
|
|
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1.1*
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Form of Underwriting Agreement.
|
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1.2
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Sales Agreement, dated as of
December 14, 2021, by and between the Registrant and SVB Leerink LLC
|
|
X
|
|
|
|
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3.1
|
|
Third Amended and Restated Certificate
of Incorporation of the Registrant
|
|
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8-K (Exhibit 3.1)
|
|
1/29/2018
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001-38365
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3.2
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Certificate of Amendment to
Third Amended and Restated Certificate of Incorporation of the Registrant
|
|
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8-K (Exhibit 3.1.1)
|
|
6/14/2018
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001-38365
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3.3
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Amended and Restated By-laws
of the Registrant
|
|
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8-K (Exhibit 3.2)
|
|
3/12/2018
|
|
001-38365
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4.1
|
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Form of Senior Indenture
|
|
X
|
|
|
|
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4.2
|
|
Form of Subordinated Indenture
|
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X
|
|
|
|
|
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4.3*
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Form of Senior Debt Security
|
|
|
|
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|
|
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4.4*
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Form of Subordinated Debt
Security
|
|
|
|
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4.5*
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|
Form of Warrant Agreement
and Warrant Certificate
|
|
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|
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|
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4.6*
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|
Form of Unit Agreement
and Unit Certificate
|
|
|
|
|
|
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4.7*
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|
Form of
Rights Agreement and Rights Certificate
|
|
|
|
|
|
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5.1
|
|
Opinion of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. with respect to the legality of the securities being registered
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X
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|
|
|
|
|
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23.1
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Consent of Marcum LLP
|
|
X
|
|
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|
|
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23.2
|
|
Consent of Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. (included in the opinion filed as Exhibit 5.1)
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X
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|
|
|
|
|
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24.1
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|
Powers of Attorney (included
on the signature page of this registration statement).
|
|
X
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|
|
|
|
|
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25.1*
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|
The Statement of Eligibility
on Form T-1 under the Trust Indenture Act of 1939, as amended, of the Trustee under the Indenture will be incorporated herein
by reference from a subsequent filing in accordance with Section 305(b)(2) of the Trust Indenture Act of 1939.
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*To be subsequently filed, if
applicable, by an amendment to this registration statement or by a Current Report on Form 8-K
Item 17. Undertakings
|
(a)
|
The undersigned registrant hereby undertakes:
|
(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 Commission 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; and
(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 paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained
in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed
pursuant to Rule 424(b) that is part of the registration statement.
(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 initial bona 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.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each
prospectus filed by the 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
(ii) 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.
(5) 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, in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless
of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means
of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) That,
for purposes of determining any liability under the Securities Act:
(i) the
information omitted from the form of prospectus filed as part of the registration statement in reliance upon Rule 430A and contained
in the 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 the registration statement as of the time it was declared effective; and
(ii) 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.
(c) The
undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing
of the registrant’s annual report pursuant to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange
Act of 1934) that is incorporated by reference in the registration statement 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.
(d) Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons
of the registrant, the 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 the registrant of expenses incurred or paid by a director, officer or controlling person
of the 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, the 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.
(e) The
undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations
prescribed by the Commission under section 305(b)(2) of the Act.
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 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of New York, State of New York, on the 14th day of December, 2021.
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EYENOVIA INC.
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By:
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/s/ Tsontcho Ianchulev
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Tsontcho Ianchulev
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Chief Executive Officer
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SIGNATURES AND POWER OF ATTORNEY
We, the undersigned
officers and directors of Eyenovia, Inc., hereby severally constitute and appoint Tsontcho Ianchulev and John Gandolfo, and each
of them singly (with full power to each of them to act alone), our true and lawful attorneys-in-fact and agents, with full power of substitution
and resubstitution in each of them for her or him and in her or his name, place and stead, and in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration statement (or any other registration statement for the
same offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933), and to file the
same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite
or necessary to be done in and about the premises, as full to all intents and purposes as she or he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of them or their or her or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of
the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates
indicated.
Signature
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Capacity
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Date
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/s/ Tsontcho Ianchulev
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Chief Executive Officer and Director
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December 14, 2021
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Tsontcho Ianchulev
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(Principal Executive Officer)
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/s/ John Gandolfo
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Chief Financial Officer
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December 14, 2021
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John Gandolfo
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(Principal Financial and Accounting Officer)
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/s/ Curt H. LaBelle
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Director
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December 14, 2021
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Curt H. LaBelle
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/s/ Kenneth B. Lee, Jr.
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Director
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December 14, 2021
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Kenneth B. Lee, Jr.
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/s/ Ernest Mario
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Director
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December 14, 2021
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Ernest Mario
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/s/ Charles E. Mather IV
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Director
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December 14, 2021
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Charles E. Mather IV
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/s/ Anthony Y. Sun
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Director
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December 14, 2021
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Anthony Y. Sun
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/s/ Julia A. Haller
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Director
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December 14, 2021
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Julia A. Haller
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Grafico Azioni Eyenovia (NASDAQ:EYEN)
Storico
Da Ago 2024 a Set 2024
Grafico Azioni Eyenovia (NASDAQ:EYEN)
Storico
Da Set 2023 a Set 2024