Securities Registration: Employee Benefit Plan (s-8)
15 August 2019 - 6:38AM
Edgar (US Regulatory)
As filed with the Securities and Exchange
Commission on August 14, 2019
Registration Statement No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
Eyenovia,
Inc.
(Exact name of registrant as specified
in its charter)
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Delaware
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47-1178401
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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295 Madison Avenue, Suite 2400
New York, New York 10017
(Address, including zip code, of registrant’s
principal executive offices)
Eyenovia, Inc. 2018 Omnibus Stock Incentive
Plan, as amended
(Full title of the plan)
Tsontcho Ianchulev
Chief Executive Officer
295 Madison Avenue, Suite 2400
New York, NY 10017
917-289-1117
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Donald R. Reynolds, Esq.
S. Halle Vakani, Esq.
Lorna A. Knick, Esq.
Wyrick Robbins Yates & Ponton LLP
4101 Lake Boone Trail, Suite 300
Raleigh, North Carolina 27607
(919) 781-4000
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging growth company
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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 the Securities Act.
¨
CALCULATION OF REGISTRATION FEE
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Title of Securities to
be Registered
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Amount
to be
Registered (1)(2)
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Proposed
Maximum
Offering Price
Per Share (3)
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Proposed
Maximum
Aggregate
Offering Price (3)
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Amount of
Registration Fee
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Common Stock, $0.0001 par value per share
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500,000
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$3.245
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$1,622,500.00
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$196.65
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(1)
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Consists of 500,000 additional shares reserved for issuance under the Eyenovia, Inc. 2018 Omnibus Stock Incentive Plan, as amended (the “2018 Stock Plan”). Previously, 750,000 shares under the 2018 Stock Plan were registered under Registration Statement No. 333-227049.
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(2)
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Pursuant to Rule 416(a) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers any additional shares of the Registrant’s common stock that become issuable under the 2018 Stock Plan by reason of any stock dividend, stock split, recapitalization, or other similar transaction that results in an increase in the number of outstanding shares of the Registrant’s common stock.
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(3)
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Estimated in accordance with Rules 457(c) and (h) of the Securities Act solely for the purpose of calculating the registration fee based upon the average of the high and low prices of the Registrant’s common stock on the Nasdaq Capital Market on August 7, 2019.
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EXPLANATORY NOTE
This Registration Statement is being filed to register an additional
500,000 shares of Eyenovia, Inc. (the “Registrant”) common stock, securities of the same class for which a Registration
Statement on Form S-8 relating to the 2018 Stock Plan is effective. Accordingly, the contents of the previous Registration Statement
on Form S-8 filed by the Registrant with the Securities and Exchange Commission (the “Commission”) on August 27,
2018 (File No. 333-227049), including periodic reports filed after the previous Form S-8 to maintain current information about
the Registrant, are incorporated by reference into this Registration Statement pursuant to General Instruction E of Form S-8.
Item
3. Incorporation of Documents by Reference.
The following documents previously filed by the Registrant with
the Commission are incorporated herein by reference:
(a) The Registrant’s Annual Report on
Form 10-K
for the fiscal year ended December 31, 2018, filed with the Commission pursuant to Section 13(a) of the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) on March 27, 2019;
(b) The Registrant’s Quarterly Reports on Form
10-Q for the quarters ended March 31, 2019 and June 30, 2019, filed with the Commission pursuant to Section 13(a) of the Exchange
Act on
May 14, 2019
and
August 13, 2019
, respectively;
(c) The Registrant’s Current Reports on Form
8-K, filed with the Commission pursuant to Section 13(a) of the Exchange Act on
January 30
,
February 6
,
February 13
,
February 19
,
February 25
,
June 4
,
June 12
,
June 28
, and
July 15, 2019
;
(d) The Registrant’s proxy statement on
Schedule 14A
for its 2019 Annual Meeting of Stockholders, filed with the Commission on April 30, 2019; and
(e) The description of the Registrant’s common
stock contained in the Registrant’s Registration Statement on Form S-1, which description is incorporated by reference into
the
Form 8-A
filed with the Commission on January 24, 2018, pursuant to the Exchange Act and any amendment or report filed for
the purpose of updating such description.
All documents filed, but not furnished, by the Registrant pursuant
to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date hereof and prior to the filing of a post-effective amendment
that indicates that all securities offered under this Registration Statement have been sold or which deregisters all securities
then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of
such documents. In no event, however, will any of the information, including exhibits, that the Registrant discloses under Item
2.02 and Item 7.01 of any report on Form 8-K that has been or may be, from time to time, furnished to the Commission, be incorporated
by reference into or otherwise become a part of this Registration Statement.
Any statement contained in a document incorporated by reference
herein shall be deemed to be modified or superseded for purposes hereof to the extent that a statement contained herein (or in
any other subsequently filed document that also is or is deemed to be incorporated by reference herein) modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof except as so modified or
superseded.
Item
5. Interests of Named Experts and Counsel.
The validity of the securities being offered hereby has been
passed upon for us by Wyrick Robbins Yates & Ponton LLP, Raleigh, North Carolina. Certain partners of Wyrick Robbins Yates & Ponton LLP own an aggregate of 43,165 shares of the Registrant’s common stock as of the date of the filing of this
Registration Statement.
Item
8. Exhibits.
The following exhibits are filed as part of this Registration
Statement:
Exhibit No.
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Description
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4.1
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Third Amended and Restated Certificate of Incorporation of Eyenovia, Inc. (incorporated by reference to Registrant’s Form 8-K filed with the Commission on January 29, 2018).
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4.2
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Certificate of Amendment of Third Amended and Restated Certificate of Incorporation of Eyenovia, Inc. (incorporated by reference to Registrant’s Form 8-K filed with the Commission on June 14, 2018).
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4.3
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Amended and Restated Bylaws of Eyenovia, Inc. (incorporated by reference to Registrant’s Form 8-K filed with the Commission on March 12, 2018).
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5.1
*
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Opinion of Wyrick Robbins Yates & Ponton LLP.
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10.
20
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Eyenovia, Inc. 2018 Omnibus Stock Incentive Plan, as amended (incorporated by reference to Registrant’s Form 8-K filed with the Commission on June 12, 2019).
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23.1*
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Consent of Marcum LLP, Independent Registered Public Accounting Firm.
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23.2
*
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Consent of Wyrick Robbins Yates & Ponton LLP (included in Exhibit 5.1).
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24.1
*
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Power of Attorney (included on the signature page to this Registration Statement on Form S-8).
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________________________
*Filed herewith.
[THE NEXT PAGE IS THE SIGNATURE PAGE.]
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-8
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 14
th
day of August, 2019.
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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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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Tsontcho Ianchulev and John Gandolfo, and each of his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and his name, place and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power
and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and
agent, 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 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
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August 14, 2019
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Tsontcho Ianchulev
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(principal executive officer) and Director
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/s/ John Gandolfo
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Chief Financial Officer
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August 14, 2019
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John Gandolfo
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(principal financial and accounting officer)
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/s/ Fredric N. Eshelman
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Chairman of the Board and Director
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August 14, 2019
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Fredric N. Eshelman
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/s/ Curt H. LaBelle
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Director
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August 14, 2019
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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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August 14, 2019
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Kenneth B. Lee, Jr.
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/s/ Ernest Mario
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Director
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August 14, 2019
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Ernest Mario
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/s/ Charles E. Mather IV
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Director
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August 14, 2019
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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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August 14, 2019
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Anthony Y. Sun
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