As filed with
the Securities and Exchange Commission on October 1, 2024
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 |
001-38365 |
47-1178401 |
(State or other jurisdiction of
incorporation
or organization) |
(Commission File Number) |
(I.R.S. Employer
Identification Number) |
295 Madison Avenue, Suite 2400
New York, New York 10017
(917) 289-1117
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Michael Rowe
Chief Executive Officer
295 Madison Avenue, Suite 2400
New York, New York 10017
Tel: (833) 393-6684
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
Megan Gates
Julie M. Plyler
Covington & Burling LLP
One International Place
Boston, Massachusetts 02110-2627
Tel: (617) 603-8800
Approximate date of commencement of proposed
sale to the public: From time to time after the effective date of this registration statement.
If the only securities being registered on this
Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered on this
Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the following box. 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, 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. (Check one:)
| Large
accelerated filer |
¨ |
Accelerated filer |
¨ |
| Non-accelerated
filer |
x |
Smaller reporting company |
x |
| |
|
Emerging growth company |
¨ |
If an emerging growth company, indicate by check
mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
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
Eyenovia,
Inc. (the “Company”) is registering under this registration statement an aggregate of $100,000,000 of securities, including,
in accordance with Rule 415(a)(6) under the Securities Act of 1933, as amended (the “Securities Act”), $22,965,013.58
of unsold securities previously registered under the Company’s registration statement on Form S-3 (File No. 333-261638), which
was originally filed with the SEC on December 14, 2021 and declared effective by the SEC on December 23, 2021 (the “Prior Registration
Statement). The aggregate filing fee paid in connection with such unsold securities was $2,128.86. Pursuant to Rules 415(a)(5)(ii)
and 415(a)(6) under the Securities Act, by filing this registration statement on Form S-3, the Company may issue and sell securities
under the Prior Registration Statement until the earlier of the effective date of this registration statement or 180 days after December
23, 2024.
This registration statement contains two prospectuses:
| · | a base prospectus which
covers the offering, issuance and sale by us of up to $100,000,000 in the aggregate of our
common stock, preferred stock, debt securities, warrants, units and rights from time to time
in one or more offerings; and |
| · | a sales agreement prospectus,
which covers the offering, issuance and sale by us of up to a maximum aggregate offering
price of $25,000,000 of our common stock that may be issued and sold from time to time under
a Sales Agreement (the “Sales Agreement”), dated as of December 14, 2021, with
Leerink Partners LLC (“Leerink Partners”). |
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 $25,000,000 of common stock that
may be offered, issued and sold by us 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 Leerink Partners, any portion
of the $25,000,000 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. These securities may not be sold until the registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell nor is it soliciting an offer to buy these securities in any jurisdiction
where such offer or sale is not permitted.
Subject to completion, dated October
1, 2024
PROSPECTUS
$100,000,000
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
Rights
From time to time, we may offer and sell up to
$100,000,000 of the securities described in this prospectus separately or together in any combination, in one or more classes or series,
in amounts, at prices and on terms that we will determine at the time of the offering.
This prospectus may not be used to sell securities
unless accompanied by a prospectus supplement, which will describe the method and specific terms of the offering, including the amount,
price and terms of the applicable offered securities. You should carefully read this prospectus, the information incorporated by reference
in this prospectus, the prospectus supplement, including any information incorporated by reference in such prospectus supplement, and
any free writing prospectus before you purchase any of the securities offered hereby.
These securities may be offered and sold in the
same offering or in separate offerings, to or through underwriters, dealers or agents or directly to purchasers. The names of any underwriters,
dealers or agents involved in the sale of our securities, their compensation and any options held by them to purchase additional securities
will be described in the applicable prospectus supplement. See “Plan of Distribution.”
Our common stock is listed on The Nasdaq Capital
Market under the symbol “EYEN.” On September 30, 2024, the last reported sale price of our common stock was $0.5166 per share.
We are 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. Before buying our securities, you should carefully consider the risks described under the caption “Risk Factors”
beginning on page 4 of this prospectus, in the documents incorporated by reference into this prospectus, and in the applicable prospectus
supplement.
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 ,
2024.
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, from time to time, offer or sell any combination of the securities described in this prospectus
in one or more offerings, up to a total amount of $100,000,000.
This prospectus provides you with a general description
of the securities we may offer. Each time we offer securities pursuant to this prospectus, we will provide a prospectus supplement, which
will be delivered with this prospectus, that will contain specific information about the offering and the terms of the particular securities
offered. The prospectus supplement may also add, update or change the information contained in this prospectus. This prospectus may not
be used to consummate sales of our securities, unless it is accompanied by a prospectus supplement. Before purchasing any securities,
you should carefully read both this prospectus and the accompanying prospectus supplement and any free writing prospectus prepared by
or on behalf of us, together with the additional information described under “Where You Can Find More Information.”
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. Those exhibits may be filed with the registration statement or may be incorporated by
reference to earlier SEC filings listed in the registration statement or in subsequent filings that we may make under the Securities
Exchange Act of 1934 (the “Exchange Act”).
We have not authorized anyone to provide you
with information that is different from or in addition to that contained or incorporated by reference in this prospectus. We do not take
any responsibility for, and can provide no assurance as to the reliability of, any information that others may give. We are not making
an offer to sell or soliciting an offer to buy our securities under any circumstance in any jurisdiction where the offer or solicitation
is not permitted. You should assume that the information contained in this prospectus, any prospectus supplement or any free writing
prospectus prepared by us or on our behalf is accurate only as of the date of the respective document in which the information appears,
and that any information in documents that we have incorporated 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 prospectus supplement or any sale of a security. Our business,
financial condition, results of operations and prospects may have changed 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 this 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.
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.
All references in this prospectus to “Eyenovia,”
“EYEN,” “the company,” “we,” “us,” “our,” or similar references, refer to
Eyenovia, Inc., except where the context otherwise requires or as otherwise indicated.
ABOUT
EYENOVIA
Overview
We are an ophthalmic technology company focused
on the late-stage development of MicroPine in the multi-billion dollar pediatric progressive myopia market while commercializing Mydcombi™
(tropicamide and phenylephrine HCL ophthalmic spray) for inducing mydriasis for routine diagnostic procedures and in conditions where
short term pupil dilation is desired, and clobetasol propionate ophthalmic suspension, for the treatment of post-operative pain and inflammation
following ocular surgery. We are also developing the Optejet® delivery system both for use in combination with our own drug-device
therapeutic programs and for out-licensing for use in combination with therapeutics for additional indications. Our aim is to improve
the delivery of topical ophthalmic medication through the ergonomic design of the Optejet which facilitates ease-of-use and delivery
of more physiologically appropriate medication volume, with the goal to reduce side effects and improve tolerability, and introduce digital
health technology to improve therapy compliance and ultimately medical outcomes.
The ergonomic and functional design of the Optejet
allows for horizontal drug delivery and eliminates the need to tilt the head back or the manual dexterity to squeeze a bottle to administer
medications. Drug is delivered in a microscopic array of droplets faster than the blink reflex to help ensure instillation success. The
precise delivery of a low-volume columnar spray by the Optejet device minimizes contamination risk with a non-protruding nozzle and self-closing
shutter. In clinical trials, the Optejet has demonstrated that its targeted delivery achieves a high rate of successful administration,
with 98% of sprays being accurately delivered upon first attempt compared to the established rate reported with traditional eye drops
of approximately 50%.
A more physiologically appropriate volume of medication
in the range of seven to nine microliters is delivered by the Optejet, which is approximately one-fifth of the 35 to 50 microliter dose
typically delivered in a single eye drop. Lower volume of medication exposes the ocular surface to less active ingredient and preservatives,
potentially reducing ocular stress and surface damage and improving tolerability. The lower volume also minimizes the potential for drug
to enter systemic circulation, with the goal of avoiding some common side effects that are related to overdosing of the eye.
We are developing versions of the Optejet with
on-board digital technology that records the date and time of each use. These data may be used to provide reminders via Bluetooth to
smart devices and to allow healthcare practitioners to monitor usage. This information can then be used by practitioners and health care
systems to measure treatment compliance and improve medical decision making. In this way, the Optejet could serve as an extension of
the physician’s office by providing information that is not currently possible to collect except through the use of diaries.
We have also successfully expanded our manufacturing
capabilities through a partnership with Coastline International, Inc. located in Tijuana, Mexico, as well as the construction of our
new manufacturing facility in Reno, Nevada and the construction of our own fill and finish facility in Redwood City, California. The
U.S. Food and Drug Administration (“FDA”) approved the use of both Coastline International, Inc. and our Redwood City facility
for the production of Mydcombi cartridges, and the use of our Reno facility for the production of technical elements such as the base
unit for the Optejet device.
MicroLine is our investigational pharmacologic
treatment for presbyopia, a non-preventable, age-related hardening of the lens, which causes the gradual loss of the eye’s ability
to focus on near objects and impairs near visual acuity. We have completed two Phase III studies using our Optejet® device.
In these studies, patients reported high satisfaction with using the device, and a strong preference over using an eye dropper bottle.
Since completing these studies, the market opportunity has markedly deteriorated, and we have chosen to put this program on hold and
reallocate our resources towards larger opportunities. When and if the market improves, we have kept open the option to continue development
of MicroLine which would include a meeting with the FDA to review our clinical data to date.
Mydcombi is the only FDA-approved fixed combination
of the two leading mydriatic agents, tropicamide and phenylephrine in the United States and our first FDA-approved product. As an ophthalmic
spray delivered with Optejet technology, Mydcombi may present a number of benefits for ophthalmic surgical centers, optometric and ophthalmic
offices and patients. Those benefits may include improved cost-effectiveness in centers that employ single-use bottles for mydriasis,
more efficient use of office time and resources, and an overall improved doctor-patient experience. We have begun the commercialization
of Mydcombi, with the first commercial sale of the product occurring on August 3, 2023 as part of a targeted launch, and expanded our
launch with the hiring and onboarding of nine sales representatives through August 1, 2024. We received FDA approval for our primary
Mydcombi manufacturing facility in February 2024, which we believe will allow us to expand and continue to build our manufacturing operations.
On July 24, 2024, we received written comments from the FDA outlining the design of a clinical bridging study to transition Mydcombi
into our new Gen-2 Optejet device, which has a significantly lower cost to manufacture than the currently approved product.
We are in active discussions with manufacturers
of existing and late-stage ophthalmic medications to explore whether development with the Optejet technology can solve unmet medical
and business needs. Some of those business needs could include extension of exclusivity under the Optejet patents, improvement in a drug’s
tolerability profile, or potential improvement in treatment compliance.
On August 15, 2023, we entered into a license
agreement (the “Formosa License”) with Formosa Pharmaceuticals Inc. (“Formosa”), whereby we acquired the exclusive
U.S. rights to commercialize any product related to a novel formulation of clobetasol propionate ophthalmic suspension 0.05% (the “Licensed
Product”), which was approved by the FDA for post-operative pain and inflammation after ocular surgery on March 4, 2024. The Formosa
License will remain in effect for ten years from the date of the first commercial sale of a Licensed Product, unless earlier terminated.
We paid Formosa an upfront payment in an aggregate amount of $2.0 million which consisted of (a) cash in the amount of $1.0 million and
(b) 487,805 shares of common stock valued at $1.0 million. We also capitalized $122,945 of transaction costs in connection with the Formosa
License. In addition, we must pay Formosa up to $4.0 million upon the achievement of certain development milestones and up to $80.0 million
upon the achievement of certain sales milestones. The trigger for the initial $2.0 million development milestone payments was FDA approval
of the Licensed Product and the effective date of the acceptance by the Company of the transfer and assignment of the FDA approval, which
occurred on March 14, 2024. Based on the achievement of this milestone, we paid Formosa the aggregate amount of $2.0 million, consisting
of (a) cash in the amount of $1.0 million on April 26, 2024 and (b) 613,496 shares of common stock (calculated pursuant to the Formosa
License at $1.0 million using a five-day volume-weighted average price on March 14, 2024). The remaining $2.0 million development milestone
(to be fully paid in cash) was earned and accrued upon FDA approval, but payment will be triggered on the earlier of twelve months after
FDA approval of the Licensed Product or six months following the first commercial sale of the Licensed Product.
On July 23, 2024, we entered into a collaboration
agreement with Senju Pharmaceutical Co., Ltd. (“Senju”), under which the companies intend to work to develop EYEN-520, a
combination of Senju’s corneal epithelial wound healing candidate with our Optejet dispensing technology, as a potential treatment
for chronic dry eye disease. The companies anticipate a meeting with the FDA in late 2024, to be followed by execution of a definitive
agreement related to the further development of the product and anticipated completion of a Phase 2b study in 2025. If successful, the
collaboration agreement could be expanded to bring the product into two Phase 3 studies by 2026.
On August 7, 2024, we entered into a collaboration
agreement with Formosa under which the companies intend to work to develop EYEN-530, a combination of Formosa’s clobetasol propionate
ophthalmic solution with our Optejet dispensing technology, as a potential treatment for acute dry eye flare-ups. The companies anticipate
meeting with the FDA in late 2024, to be followed by execution of a definitive agreement related to further development of the product
and anticipated initiation of two Phase 3 studies by 2026.
On September 26, 2024, we announced the U.S. launch and commercial availability of clobetasol propionate ophthalmic suspension 0.05%.
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 (833) 393-6684. We maintain
a website at 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.
Implications of Being a Smaller Reporting Company
We are a “smaller reporting company”
as defined under the Exchange Act. We may take advantage of certain of the scaled disclosures available to smaller reporting companies
until the last day of the fiscal year in which (i) the market value of our common stock held by non-affiliates exceeds $250 million as
of the end of that year’s second fiscal quarter and our annual revenue exceeds $100 million during such completed fiscal year,
or (ii) the market value of our common stock held by non-affiliates exceeds $700 million, regardless of our annual revenue, as of the
end of that year’s second fiscal quarter.
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 our securities. 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 and in any of our filings with
the SEC that are incorporated by reference herein and therein. The risks and uncertainties described in any applicable prospectus supplement
and in our SEC filings 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 we have filed
with the SEC that are incorporated by reference herein contain, and any prospectus supplement or free writing prospectus that we may
authorize for use in connection with this offering may contain, “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”). These statements relate to future events or to our future operating or financial performance
and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to
be materially different from any future results, performances or achievements expressed or implied by the forward-looking statements.
Forward-looking statements may include, but are not limited to, statements about:
| · | 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; |
| · | our expectations related
to the use of proceeds from our financings, including this offering; |
| · | risks of our and our
licensees’ clinical trials including, but not limited to, the costs, design, initiation
and enrollment, 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 Mydcombi, clobetasol propionate and our product candidates; |
| · | the production and
commercialization of Mydcombi and clobetasol propionate; |
| · | reliance on third
parties to develop and commercialize Mydcombi, clobetasol propionate and certain of our product
candidates; |
| · | our and our partners’
ability to timely develop, implement and maintain manufacturing, commercialization and marketing
capabilities and strategies for Mydcombi, clobetasol propionate and certain of our product
candidates; |
| · | our estimates regarding
the potential market opportunities for Mydcombi, clobetasol propionate and our product candidates; |
| · | the potential advantages
of Mydcombi, clobetasol propionate and our product candidates and platform technology and
potential revenues from licensing transactions; |
| · | the rate and degree
of market acceptance and clinical utility of Mydcombi, clobetasol propionate and 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. |
In some cases, you can identify forward-looking
statements by terms such as “anticipate,” “believe,” “can,” “continue,” “could,”
“estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,”
“project,” “seek,” “should,” “target,” “will,” “would” and similar
expressions or variations intended to identify forward- looking statements. These statements reflect our current views with respect to
future events, are based on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should not place undue
reliance on these forward-looking statements. More information on factors that could cause actual results to differ materially from those
anticipated is included from time to time in our reports filed with the SEC, including, but not limited to, those described in the section
titled “Risk Factors” in our Annual Report on Form 10-K for our most recent fiscal year, as updated by our subsequent filings
under the Exchange Act, which are incorporated herein by reference, and as may be updated or superseded by the risks and uncertainties
described under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this
prospectus. Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing
the applicable statement.
You should read this prospectus, the documents
we have filed with the SEC that are incorporated by reference herein and any prospectus supplement or free writing prospectus that we
have authorized for use in connection with this offering completely and with the understanding that our actual future results may be
materially different from what we expect. We qualify all of the forward-looking statements in the foregoing documents by these cautionary
statements.
Unless required by law, we undertake no obligation
to update or revise any forward-looking statements to reflect new information or future events or developments. Thus, you should not
assume that our silence over time means that actual events are bearing out as expressed or implied in such forward-looking statements.
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, repayment of debt obligations,
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. We will set forth in the applicable
prospectus supplement our intended use for the net proceeds received from the sale of any securities. 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.
DESCRIPTION OF CAPITAL
STOCK
The following summary of certain provisions of
our capital stock does not purport to be complete and is subject to, and is qualified in its entirety by reference to, our Third Amended
and Restated Certificate of Incorporation, as amended (the “Charter”), Second Amended and Restated Bylaws (the “Bylaws”),
and applicable provisions of the Delaware General Corporation Law (the “DGCL”). Therefore, you should carefully consider
the actual provisions of our Charter and Bylaws as well as relevant portions of the DGCL.
General
Our authorized capital stock consists of (i) 300,000,000
shares of common stock, par value $0.0001 per share, and (ii) 6,000,000 shares of preferred stock, par value $0.0001 per share. As of
June 30, 2024, 55,817,921 shares of common stock were outstanding and no shares of preferred stock were outstanding. All outstanding
shares of our common stock are fully paid and nonassessable.
Common Stock
Voting Rights and Cumulative Voting
The holders of our common stock are entitled to
one vote per share on all matters to be voted on by the stockholders. Our Charter provide that stockholders are not entitled to cumulate
votes in the election of directors.
Dividend Rights
Subject to preferences that may be applicable
to any outstanding shares of preferred stock, holders of common stock are entitled to receive ratably such dividends as may be declared
by the board of directors out of funds legally available therefor.
Preemptive Rights; Redemption or Sinking
Fund
Holders of common stock have no preemptive, conversion
or subscription rights. There are no redemption or sinking fund provisions applicable to our common stock.
Liquidation Rights
If we liquidate, dissolve or wind up, holders
of our common stock are entitled to share ratably in all assets remaining after payment of liabilities and the liquidation preferences
of any outstanding shares of preferred stock.
Listing; Transfer Agent and Registrar
Our common stock is listed on The Nasdaq Capital
Market (“Nasdaq”) under the symbol “EYEN.” The transfer agent and registrar for our common stock is Equiniti
Trust Company, LLC. Its address is 55 Challenger Road, 2nd Floor, Ridgefield Park, New Jersey 07660.
Warrants
As
of September 30, 2024, we had outstanding pre-funded warrants to purchase 65,653 shares of common stock with a nominal ($0.0001)
exercise price and other warrants to purchase 28,947,744 shares of our common stock, with a weighted average exercise price of $0.68 per
share. Our pre-funded warrants will remain outstanding until exercised in full. Our outstanding warrants will expire no later than the
third quarter of 2030.
Preferred Stock
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.
We will fix the voting rights, designations, preferences
and rights of the preferred stock of each series, as well as the qualifications, limitations or restrictions thereof, in the certificate
of designation relating to such series that we file pursuant to the DGCL. We will file an exhibit to the registration statement of which
this prospectus forms a part, or will incorporate by reference from reports that we file with the SEC, the form of any certificate of
designation that describes the terms of the series of preferred stock we are offering before the issuance of that series of preferred
stock. This description will include:
| · | the
title and stated value; |
| · | the
number of shares offered; |
| · | the
liquidation preference per share; |
| · | the
purchase price per share; |
| · | the
dividend rate(s), period(s) and/or payment date(s) or method(s) of calculation for dividends; |
| · | whether
dividends are cumulative or non-cumulative and, if cumulative, the date from which dividends
will accumulate; |
| · | our
right, if any, to defer payment of dividends and the maximum length of such deferral period; |
| · | the
procedures for auction and remarketing, if any; |
| · | the
provisions for a sinking fund, if any; |
| · | the
provision for redemption or repurchase, if applicable, and any restrictions on our ability
to exercise those redemption and repurchase rights; |
| · | any
listing of the preferred stock on any securities exchange or market; |
| · | the
terms and conditions, if applicable, upon which the preferred stock will be convertible into
common stock, including the conversion price (or manner of calculation) and conversion period; |
| · | whether
the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange
price, or how it will be calculated, and the exchange period; |
| · | preemptive
rights, if any; |
| · | restrictions
on transfer, sale or other assignment, if any; |
| · | whether
interests in the preferred stock will be represented by depositary shares; |
| · | a
discussion of any material and/or special U.S. federal income tax considerations applicable
to the preferred stock; |
| · | the
relative ranking and preferences of the preferred stock as to dividend rights and rights
upon the liquidation, dissolution or winding up of our affairs; |
| · | any
limitations on issuance of any class or series of preferred stock ranking senior to or on
a parity with the class or series of preferred stock as to dividend rights and rights upon
liquidation, dissolution or winding up of our affairs; and |
| · | any
other specific terms, preferences, rights, limitations or restrictions of the preferred stock. |
Our board of directors could authorize the issuance
of shares of preferred stock with terms and conditions that could have the effect of discouraging a takeover or other transaction that
might involve a premium price for holders of the shares or which holders might believe to be in their best interests. The issuance of
preferred stock could adversely affect the voting power, conversion or other rights of holders of common stock and reduce the likelihood
that common stockholders will receive dividend payments and payments upon liquidation.
The DGCL provides that the holders of preferred
stock will have the right to vote separately as a class on any proposal involving fundamental changes to the rights of holders of such
preferred stock. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
The transfer agent and registrar for any series
of preferred stock will be set forth in the applicable prospectus supplement.
Anti-Takeover Effects of Delaware Law and Our Charter and Bylaws
Some provisions of the DGCL, our Charter and our
Bylaws could make the following transactions more difficult: an acquisition of us by means of a tender offer; an acquisition of us by
means of a proxy contest or otherwise; or the removal of our incumbent officers and directors. It is possible that these provisions could
make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest
or in our best interest, including transactions which provide for payment of a premium over the market price for our shares.
These provisions, summarized below, are intended
to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking
to acquire control of us to first negotiate with our board of directors. We believe that the benefits of the increased protection of
our potential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh
the disadvantages of discouraging these proposals because negotiation of these proposals could result in an improvement of their terms.
Undesignated Preferred Stock. The
ability of our board of directors, without action by the stockholders, to issue up to 6,000,000 shares of undesignated preferred stock
with voting or other rights or preferences as designated by our board of directors could impede the success of any attempt to effect
a change in control of us. These and other provisions may have the effect of deferring hostile takeovers or delaying changes in control
or management of our company.
Stockholder Meetings. Our Bylaws
provide that a special meeting of stockholders may be called only by our board of directors, president, chief executive officer or such
other persons that the board of directors may designate.
Requirements for Advance Notification of
Stockholder Nomination. Our Bylaws establish advance notice procedures with respect to the nomination of candidates
for election as directors, other than nominations made by or at the direction of the board of directors or the nominating committee of
the board of directors.
Removal of Directors. Our Charter
provides that no member of our board of directors may be removed from office by our stockholders except for cause and upon the affirmative
vote of holders of a majority of the outstanding shares of our common stock entitled to vote generally in the election of directors,
voting together as a single class.
Stockholders Not Entitled to Cumulative
Voting. Our Charter does not permit stockholders to cumulate their votes in the election of directors. Accordingly, the holders
of a majority of the outstanding shares of our common stock entitled to vote in any election of directors can elect all of the directors
standing for election, if they choose, other than any directors that holders of our preferred stock may be entitled to elect.
Delaware Anti-Takeover Statute. We
are subject to Section 203 of the DGCL, which prohibits persons deemed to be “interested stockholders” from engaging in a
“business combination” with a publicly held Delaware corporation for three years following the date these persons become
interested stockholders unless the business combination is, or the transaction in which the person became an interested stockholder was,
approved in a prescribed manner or another prescribed exception applies. Generally, an “interested stockholder” is a person
who, together with affiliates and associates, owns, or within three years prior to the determination of interested stockholder status
did own, 15% or more of a corporation’s voting stock. Generally, a “business combination” includes a merger, asset
or stock sale, or other transaction resulting in a financial benefit to the interested stockholder. The existence of this law may have
an anti-takeover effect with respect to transactions not approved in advance by the board of directors.
Choice of Forum. Our Charter provides
that, unless we consent in writing to the selection of an alternative form, the Court of Chancery of the State of Delaware will be the
sole and exclusive forum for: (1) any derivative action or proceeding brought on our behalf; (2) any action asserting a claim of breach
of a fiduciary duty or other wrongdoing by any of our directors, officers, employees or agents to us or our stockholders; (3) any action
asserting a claim against us arising pursuant to any provision of the DGCL or our Charter or Bylaws; (4) any action to interpret, apply,
enforce or determine the validity of our Charter or Bylaws; or (5) any action asserting a claim governed by the internal affairs doctrine.
Our Charter also provides that any person or entity purchasing or otherwise acquiring any interest in shares of our capital stock will
be deemed to have notice of and to have consented to this choice of forum provision. It is possible that a court of law could rule that
the choice of forum provision contained in our Charter is inapplicable or unenforceable if it is challenged in a proceeding or otherwise.
The provisions of the DGCL, our Certificate and
our Bylaws could have the effect of discouraging others from attempting hostile takeovers and, as a consequence, they may also inhibit
temporary fluctuations in the market price of our common stock that often result from actual or rumored hostile takeover attempts. These
provisions may also have the effect of preventing changes in the composition of our board and management. It is possible that these provisions
could make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interest.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional
information we include in any applicable prospectus supplement or free writing prospectus, summarizes certain general terms and provisions
of the debt securities that we may offer under this prospectus. When we offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this prospectus. We will also indicate in the supplement to what extent
the general terms and provisions described in this prospectus apply to a particular series of debt securities.
We may issue debt securities either separately,
or together with, or upon the conversion or exercise of or in exchange for, other securities described in this prospectus. Debt securities
may be our senior, senior subordinated or subordinated obligations and, unless otherwise specified in a supplement to this prospectus,
the debt securities will be our direct, unsecured obligations and may be issued in one or more series.
The debt securities will be issued under an indenture
between us and a trustee to be named in the applicable indenture. We have summarized select portions of the indenture below. The summary
is not complete. The form of the indenture has been filed as an exhibit to the registration statement and you should read the indenture
for provisions that may be important to you. In the summary below, we have included references to the section numbers of the indenture
so that you can easily locate these provisions. Capitalized terms used in the summary and not defined herein have the meanings specified
in the indenture.
General
The terms of each series of debt securities will
be established by or pursuant to a resolution of our board of directors and set forth or determined in the manner provided in a resolution
of our board of directors, in an officer’s certificate or by a supplemental indenture. The particular terms of each series of debt
securities will be described in a prospectus supplement relating to such series (including any pricing supplement or term sheet).
We can issue an unlimited amount of debt securities
under the indenture that may be in one or more series with the same or various maturities, at par, at a premium, or at a discount. We
will set forth in a prospectus supplement (including any pricing supplement or term sheet) relating to any series of debt securities
being offered, the aggregate principal amount and the following terms of the debt securities, if applicable:
| · | the title and ranking
of the debt securities (including the terms of any subordination provisions); |
| · | the price or prices
(expressed as a percentage of the principal amount) at which we will sell the debt securities; |
| · | any limit on the aggregate
principal amount of the debt securities; |
| · | the date or dates
on which the principal of the securities of the series is payable; |
| · | the rate or rates
(which may be fixed or variable) per annum or the method used to determine the rate or rates
(including any commodity, commodity index, stock exchange index or financial index) at which
the debt securities will bear interest, the date or dates from which interest will accrue,
the date or dates on which interest will commence and be payable and any regular record date
for the interest payable on any interest payment date; |
| · | the place or places
where principal of, and interest, if any, on the debt securities will be payable (and the
method of such payment), where the securities of such series may be surrendered for registration
of transfer or exchange, and where notices and demands to us in respect of the debt securities
may be delivered; |
| · | the period or periods
within which, the price or prices at which and the terms and conditions upon which we may
redeem the debt securities; |
| · | any obligation we
have to redeem or purchase the debt securities pursuant to any sinking fund or analogous
provisions or at the option of a holder of debt securities and the period or periods within
which, the price or prices at which and in the terms and conditions upon which securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation; |
| · | the dates on which
and the price or prices at which we will repurchase debt securities at the option of the
holders of debt securities and other detailed terms and provisions of these repurchase obligations; |
| · | the denominations
in which the debt securities will be issued, if other than denominations of $1,000 and any
integral multiple thereof; |
| · | whether the debt securities
will be issued in the form of certificated debt securities or global debt securities; |
| · | the portion of principal
amount of the debt securities payable upon declaration of acceleration of the maturity date,
if other than the principal amount; |
| · | the currency of denomination
of the debt securities, which may be United States Dollars or any foreign currency, and if
such currency of denomination is a composite currency, the agency or organization, if any,
responsible for overseeing such composite currency; |
| · | the designation of
the currency, currencies or currency units in which payment of principal of, premium and
interest on the debt securities will be made; |
| · | if payments of principal
of, premium or interest on the debt securities will be made in one or more currencies or
currency units other than that or those in which the debt securities are denominated, the
manner in which the exchange rate with respect to these payments will be determined; |
| · | the manner in which
the amounts of payment of principal of, premium, if any, or interest on the debt securities
will be determined, if these amounts may be determined by reference to an index based on
a currency or currencies or by reference to a commodity, commodity index, stock exchange
index or financial index; |
| · | any provisions relating
to any security provided for the debt securities; |
| · | any addition to, deletion
of or change in the Events of Default described in this prospectus or in the indenture with
respect to the debt securities and any change in the acceleration provisions described in
this prospectus or in the indenture with respect to the debt securities; |
| · | any addition to, deletion
of or change in the covenants described in this prospectus or in the indenture with respect
to the debt securities; |
| · | any depositaries,
interest rate calculation agents, exchange rate calculation agents or other agents with respect
to the debt securities; |
| · | the provisions, if
any, relating to conversion or exchange of any debt securities of such series, including
if applicable, the conversion or exchange price and period, provisions as to whether conversion
or exchange will be mandatory, the events requiring an adjustment of the conversion or exchange
price and provisions affecting conversion or exchange; |
| · | any other terms of
the debt securities, which may supplement, modify or delete any provision of the indenture
as it applies to that series, including any terms that may be required under applicable law
or regulations or advisable in connection with the marketing of the securities; and |
| · | whether any of our
direct or indirect subsidiaries will guarantee the debt securities of that series, including
the terms of subordination, if any, of such guarantees. |
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.
If we denominate the purchase price of any of
the debt securities in a foreign currency or currencies or a foreign currency unit or units, or if the principal of and any premium and
interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will
provide you with information on the restrictions, elections, general tax considerations, specific terms and other information with respect
to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the applicable prospectus
supplement.
Transfer and Exchange
Each debt security will be represented by either
one or more global securities registered in the name of The Depository Trust Company, or the Depositary, or a nominee of the Depositary
(we will refer to any debt security represented by a global debt security as a “book-entry debt security”), or a certificate
issued in definitive registered form (we will refer to any debt security represented by a certificated security as a “certificated
debt security”) as set forth in the applicable prospectus supplement. Except as set forth under the heading “Global Debt
Securities and Book-Entry System” below, book-entry debt securities will not be issuable in certificated form.
Certificated Debt Securities. You
may transfer or exchange certificated debt securities at any office we maintain for this purpose in accordance with the terms of the
indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of
a sum sufficient to cover any tax or other governmental charge payable in connection with a transfer or exchange.
You may effect the transfer of certificated debt
securities and the right to receive the principal of, premium and interest on certificated debt securities only by surrendering the certificate
representing those certificated debt securities and either reissuance by us or the trustee of the certificate to the new holder or the
issuance by us or the trustee of a new certificate to the new holder.
Global Debt Securities and Book-Entry System.
Each global debt security representing book-entry debt securities will be deposited with, or on behalf of, the Depositary, and
registered in the name of the Depositary or a nominee of the Depositary. Please see “Global Securities.”
Covenants
We will set forth in the applicable prospectus
supplement any restrictive covenants applicable to any issue of debt securities.
No Protection in the Event of a Change of Control
Unless we state otherwise in the applicable prospectus
supplement, the debt securities will not contain any provisions which may afford holders of the debt securities protection in the event
we have a change in control or in the event of a highly leveraged transaction (whether or not such transaction results in a change in
control) which could adversely affect holders of debt securities.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge with or into,
or convey, transfer or lease all or substantially all of our properties and assets to any person (a “successor person”) unless:
| · | we are the surviving
corporation or the successor person (if other than Eyenovia) is a corporation organized and
validly existing under the laws of any U.S. domestic jurisdiction and expressly assumes our
obligations on the debt securities and under the indenture; and |
| · | immediately after
giving effect to the transaction, no Default or Event of Default, shall have occurred and
be continuing. |
Notwithstanding the above, any of our subsidiaries
may consolidate with, merge into or transfer all or part of its properties to us.
Events of Default
“Event of Default” means with respect
to any series of debt securities, any of the following:
| · | default in the payment
of any interest upon any debt security of that series when it becomes due and payable, and
continuance of such default for a period of 30 days (unless the entire amount of the payment
is deposited by us with the trustee or with a paying agent prior to the expiration of the
30-day period); |
| · | default in the payment
of principal of any security of that series at its maturity; |
| · | default in the performance
or breach of any other covenant or warranty by us in the indenture (other than a covenant
or warranty that has been included in the indenture solely for the benefit of a series of
debt securities other than that series), which default continues uncured for a period of
60 days after we receive written notice from the trustee or Eyenovia and the trustee receive
written notice from the holders of not less than 25% in principal amount of the outstanding
debt securities of that series as provided in the indenture; |
| · | certain voluntary
or involuntary events of bankruptcy, insolvency or reorganization of Eyenovia; and |
| · | any other Event of
Default provided with respect to debt securities of that series that is described in the
applicable prospectus supplement. |
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 certain Events of Default or an acceleration under
the indenture may constitute an event of default under certain indebtedness of ours or our subsidiaries outstanding from time to time.
We will provide the trustee written notice of
any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice
will describe in reasonable detail the status of such Default or Event of Default and what action we are taking or propose to take in
respect thereof.
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 25% in principal amount
of the outstanding debt securities of that series may, by a notice in writing to us (and to the trustee if given by the holders), declare
to be due and payable immediately the principal of (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) and accrued and unpaid interest, if any, on all debt securities
of that series. In the case of an Event of Default resulting from certain events of bankruptcy, insolvency or reorganization, the principal
(or such specified amount) of and accrued and unpaid interest, if any, on all outstanding debt securities will become and be immediately
due and payable without any declaration or other act on the part of the trustee or any holder of outstanding debt securities. At any
time after a declaration of acceleration with respect to debt securities of any series has been made, but before a judgment or decree
for payment of the money due has been obtained by the trustee, the holders of a majority in principal amount of the outstanding debt
securities of that series may rescind and annul the acceleration if all Events of Default, other than the non-payment of accelerated
principal and interest, if any, with respect to debt securities of that series, have been cured or waived as provided in the indenture.
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.
The indenture provides that the trustee may refuse
to perform any duty or exercise any of its rights or powers under the indenture unless the trustee receives indemnity satisfactory to
it against any cost, liability or expense which might be incurred by it in performing such duty or exercising such right or power. Subject
to certain rights of the trustee, 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 trustee or exercising
any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security of any series will
have any right to institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver
or trustee, or for any remedy under the indenture, unless:
| · | that holder has previously
given to the trustee written notice of a continuing Event of Default with respect to debt
securities of that series; and |
| · | the holders of not
less than 25% in principal amount of the outstanding debt securities of that series have
made written request, and offered indemnity or security satisfactory to the trustee, to the
trustee to institute the proceeding as trustee, and the trustee has not received from the
holders of not less than a majority in principal amount of the outstanding debt securities
of that series a direction inconsistent with that request and has failed to institute the
proceeding within 60 days. |
Notwithstanding any other provision in the indenture,
the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any
interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of
payment.
The indenture requires us, within 120 days after
the end of our fiscal year, to furnish to the trustee a statement as to compliance with the indenture. If a Default or Event of Default
occurs and is continuing with respect to the securities of any series and if it is known to a responsible officer of the trustee, the
trustee shall send to each Securityholder of the securities of that series notice of a Default or Event of Default within 90 days after
it occurs or, if later, after a responsible officer of the trustee has knowledge of such Default or Event of Default. The indenture provides
that the trustee may withhold notice to the holders of debt securities of any series of any Default or Event of Default (except in payment
on any debt securities of that series) with respect to debt securities of that series if the trustee determines in good faith and in
compliance with the indenture that withholding notice is in the interest of the holders of those debt securities.
Modification and Waiver
We and the trustee may modify, amend or supplement
the indenture or the debt securities of any series without the consent of any holder of any debt security:
| · | to cure any ambiguity,
defect or inconsistency; |
| · | to comply with covenants
in the indenture described above under the heading “Consolidation, Merger and Sale
of Assets”; |
| · | to provide for uncertificated
securities in addition to or in place of certificated securities; |
| · | to add guarantees
with respect to debt securities of any series or secure debt securities of any series; |
| · | to surrender any of
our rights or powers under the indenture; |
| · | to add covenants or
events of default for the benefit of the holders of debt securities of any series; |
| · | to comply with the
applicable procedures of the applicable depositary; |
| · | to make any change
that does not adversely affect the rights of any holder of debt securities; |
| · | to provide for the
issuance of and establish the form and terms and conditions of debt securities of any series
as permitted by the indenture; |
| · | to effect the appointment
of a successor trustee with respect to the debt securities of any series and to add to or
change any of the provisions of the indenture to provide for or facilitate administration
by more than one trustee; or |
| · | to comply with requirements
of the SEC in order to effect or maintain the qualification of the indenture under the Trust
Indenture Act. |
We may also modify and amend the indenture with
the consent of the holders of at least a majority in principal amount of the outstanding debt securities of each series affected by the
modifications or amendments. We may not make any modification or amendment without the consent of the holders of each affected debt security
then outstanding if that amendment will:
| · | reduce the amount
of debt securities whose holders must consent to an amendment, supplement or waiver; |
| · | reduce the rate of
or extend the time for payment of interest (including default interest) on any debt security; |
| · | reduce the principal
of or premium on or change the fixed maturity of any debt security or reduce the amount of,
or postpone the date fixed for, the payment of any sinking fund or analogous obligation with
respect to any series of debt securities; |
| · | reduce the principal
amount of discount securities payable upon acceleration of maturity; |
| · | waive a default in
the payment of the principal of, premium or interest on any debt security (except a rescission
of acceleration of the debt securities of any series by the holders of at least a majority
in aggregate principal amount of the then outstanding debt securities of that series and
a waiver of the payment default that resulted from such acceleration); |
| · | make the principal
of or premium or interest on any debt security payable in currency other than that stated
in the debt security; |
| · | make any change to
certain provisions of the indenture relating to, among other things, the right of holders
of debt securities to receive payment of the principal of, premium and interest on those
debt securities and to institute suit for the enforcement of any such payment and to waivers
or amendments; or |
| · | waive a redemption
payment with respect to any debt security. |
Except for certain specified provisions, the holders
of at least a majority in principal amount of the outstanding debt securities of any series 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; 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.
Defeasance of Debt Securities and Certain Covenants in Certain
Circumstances
Legal Defeasance. The indenture
provides that, unless otherwise provided by the terms of the applicable series of debt securities, we may be discharged from any and
all obligations in respect of the debt securities of any series (subject to certain exceptions). We will be so discharged upon the irrevocable
deposit with the trustee, in trust, of money and/or U.S. government obligations or, in the case of debt securities denominated in a single
currency other than U.S. Dollars, government obligations of the government that issued or caused to be issued such currency, that, through
the payment of interest and principal in accordance with their terms, will provide money or U.S. government obligations in an amount
sufficient in the opinion of a nationally recognized firm of independent public accountants or investment bank to pay and discharge each
installment of principal, premium and interest on and any mandatory sinking fund payments in respect of the debt securities of that series
on the stated maturity of those payments in accordance with the terms of the indenture and those debt securities.
This discharge may occur only if, among other
things, we have delivered to the trustee an opinion of counsel stating that we have received from, or there has been published by, the
United States Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the holders
of the debt securities of that series will not recognize income, gain or loss for United States federal income tax purposes as a result
of the deposit, defeasance and discharge and will be subject to United States federal income tax on the same amounts and in the same
manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred.
Defeasance of Certain Covenants.
The indenture provides that, unless otherwise provided by the terms of the applicable series of debt securities, upon compliance with
certain conditions:
| · | we may omit to comply
with the covenant described under the heading “Consolidation, Merger and Sale of Assets”
and certain other covenants set forth in the indenture, as well as any additional covenants
which may be set forth in the applicable prospectus supplement; and |
| · | any omission to comply
with those covenants will not constitute a Default or an Event of Default with respect to
the debt securities of that series (“covenant defeasance”). |
The conditions include:
| · | depositing with the
trustee money and/or U.S. government obligations or, in the case of debt securities denominated
in a single currency other than U.S. Dollars, government obligations of the government that
issued or caused to be issued such currency, that, through the payment of interest and principal
in accordance with their terms, will provide money in an amount sufficient in the opinion
of a nationally recognized firm of independent public accountants or investment bank to pay
and discharge each installment of principal of, premium and interest on and any mandatory
sinking fund payments in respect of the debt securities of that series on the stated maturity
of those payments in accordance with the terms of the indenture and those debt securities;
and |
| · | delivering to the
trustee an opinion of counsel to the effect that the holders of the debt securities of that
series will not recognize income, gain or loss for United States federal income tax purposes
as a result of the deposit and related covenant defeasance and will be subject to United
States federal income tax on the same amounts and in the same manner and at the same times
as would have been the case if the deposit and related covenant defeasance had not occurred. |
No Personal Liability of Directors, Officers, Employees or Securityholders
None of our past, present or future directors,
officers, employees or securityholders, as such, will have any liability for any of our obligations under the debt securities or the
indenture or for any claim based on, or in respect or by reason of, such obligations or their creation. By accepting a debt security,
each holder waives and releases all such liability. This waiver and release is part of the consideration for the issue of the debt securities.
However, this waiver and release may not be effective to waive liabilities under U.S. federal securities laws, and it is the view of
the SEC that such a waiver is against public policy.
Governing Law
The indenture and the debt securities, including
any claim or controversy arising out of or relating to the indenture or the securities, will be governed by the laws of the State of
New York.
The indenture will provide that we, the trustee
and the holders of the debt securities (by their acceptance of the debt securities) irrevocably waive, to the fullest extent permitted
by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the indenture, the debt securities
or the transactions contemplated thereby.
The indenture will provide that any legal suit,
action or proceeding arising out of or based upon the indenture or the transactions contemplated thereby may be instituted in the federal
courts of the United States of America located in the City of New York or the courts of the State of New York in each case located in
the City of New York, and we, the trustee and the holder of the debt securities (by their acceptance of the debt securities) irrevocably
submit to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. The indenture will further provide that
service of any process, summons, notice or document by mail (to the extent allowed under any applicable statute or rule of court) to
such party’s address set forth in the indenture will be effective service of process for any suit, action or other proceeding brought
in any such court. The indenture will further provide that we, the trustee and the holders of the debt securities (by their acceptance
of the debt securities) irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding
in the courts specified above and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other
proceeding has been brought in an inconvenient forum.
DESCRIPTION OF WARRANTS
We may issue warrants independently or together
with other securities, and the warrants may be attached to or separate from any offered securities. Each series of warrants will be issued
under a separate warrant agreement to be entered into between us and the investors or a warrant agent. The following summary of material
provisions of the warrants and warrant agreements are subject to, and qualified in their entirety by reference to, all the provisions
of the warrant agreement and warrant certificate applicable to a particular series of warrants. The terms of any warrants offered under
a prospectus supplement may differ from the terms described below. We urge you to read the applicable prospectus supplement and any related
free writing prospectus, as well as the complete warrant agreements and warrant certificates that contain the terms of the warrants.
The particular terms of any issue of warrants
will be described in the prospectus supplement relating to the issue. Those terms may include:
| · | the number of shares
of common stock or preferred stock purchasable upon the exercise of warrants to purchase
such shares and the price at which such number of shares may be purchased upon such exercise; |
| · | the designation, stated
value and terms (including, without limitation, liquidation, dividend, conversion and voting
rights) of the series of preferred stock purchasable upon exercise of warrants to purchase
preferred stock; |
| · | the principal amount
of debt securities that may be purchased upon exercise of a debt warrant and the exercise
price for the warrants, which may be payable in cash, securities or other property; |
| · | the date, if any,
on and after which the warrants and the related debt securities, preferred stock or common
stock will be separately transferable; |
| · | the terms of any rights
to redeem or call the warrants; |
| · | the date on which
the right to exercise the warrants will commence and the date on which the right will expire; |
| · | a discussion of any
material and/or special U.S. federal income tax considerations applicable to the warrants;
and |
| · | any additional terms
of the warrants, including terms, procedures, and limitations relating to the exchange, exercise
and settlement of the warrants. |
Holders of equity warrants will not be entitled to:
| · | vote, consent or receive
dividends; |
| · | receive notice as
stockholders with respect to any meeting of stockholders for the election of our directors
or any other matter; or |
| · | exercise any rights
as stockholders of Eyenovia. |
Each warrant will entitle its holder to purchase
the principal amount of debt securities or the number of shares of preferred stock or common stock at the exercise price set forth in,
or calculable as set forth in, the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement,
holders of the warrants may exercise the warrants at any time up to the specified time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
A holder of warrant certificates may exchange
them for new warrant certificates of different denominations, present them for registration of transfer and exercise them at the corporate
trust office of the warrant agent or any other office indicated in the applicable prospectus supplement. Until any warrants to purchase
debt securities are exercised, the holder of the warrants will not have any rights of holders of the debt securities that can be purchased
upon exercise, including any rights to receive payments of principal, premium or interest on the underlying debt securities or to enforce
covenants in the applicable indenture. Until any warrants to purchase common stock or preferred stock are exercised, the holders of the
warrants will not have any rights of holders of the underlying common stock or preferred stock, including any rights to receive dividends
or payments upon any liquidation, dissolution or winding up on the common stock or preferred stock, if any.
DESCRIPTION OF UNITS
We may issue units consisting of any combination
of the other types of securities offered under this prospectus in one or more series. We may evidence each series of units by unit certificates
that we will issue under a separate agreement. We may enter into unit agreements with a unit agent. Each unit agent will be a bank or
trust company that we select. We will indicate the name and address of the unit agent in the applicable prospectus supplement relating
to a particular series of units.
The following description, together with the additional
information included in any applicable prospectus supplement, summarizes the general features of the units that we may offer under this
prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related
to the series of units being offered, as well as the complete unit agreements that contain the terms of the units. Specific unit agreements
will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from another report that we file with the SEC, the form of each unit agreement relating to
units offered under this prospectus.
If we offer any units, certain terms of that series
of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
| · | the title of the series
of units; |
| · | identification and
description of the separate constituent securities comprising the units; |
| · | the price or prices
at which the units will be issued; |
| · | the date, if any,
on and after which the constituent securities comprising the units will be separately transferable; |
| · | a discussion of any
material and/or special U.S. federal income tax considerations applicable to the units; and |
| · | any other terms of
the units and their constituent securities. |
DESCRIPTION OF RIGHTS
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, together with the additional
information included in any applicable prospectus supplement, summarizes the general features of the rights that we may offer under this
prospectus. You should read any prospectus supplement and any free writing prospectus that we may authorize to be provided to you related
to the rights being offered, as well as the complete rights agreements that contain the terms of the rights. Specific rights agreements
will contain additional important terms and provisions and we will file as an exhibit to the registration statement of which this prospectus
is a part, or will incorporate by reference from another report that we file with the SEC, the form of each rights agreement relating
to rights offered under this prospectus.
If we offer any rights, certain terms of that
series of units will be described in the applicable prospectus supplement, including, without limitation, the following, as applicable:
| · | the date of determining
the stockholders entitled to the rights distribution; |
| · | the aggregate number
of shares of common stock, preferred stock or other securities purchasable upon exercise
of the rights; |
| · | the exercise price; |
| · | the aggregate number
of rights issued; |
| · | whether the rights
are transferrable and the date, if any, on and after which the rights may be separately transferred; |
| · | 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; |
| · | the method by which
holders of rights will be entitled to exercise; |
| · | the conditions to
the completion of the offering, if any; |
| · | the withdrawal, termination
and cancellation rights, if any; |
| · | whether there are
any backstop or standby purchaser or purchasers and the terms of their commitment, if any; |
| · | whether stockholders
are entitled to oversubscription rights, if any; |
| · | any applicable material
U.S. federal income tax considerations; and |
| · | any other terms of
the rights, including terms, procedures and limitations relating to the distribution, exchange
and exercise of the rights, as applicable. |
PLAN OF DISTRIBUTION
We may sell the securities offered under this
prospectus from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these
methods or through underwriters, dealers or agents or directly to one or more purchasers. The securities may be distributed from time
to time in one or more transactions (or in any combination) at:
| · | a
fixed price or prices, which may be changed; |
| · | market
prices prevailing at the time of sale; |
| · | prices
related to the prevailing market prices; or |
For each type and series of securities offered,
the applicable prospectus supplement will set forth the terms of the offering, including, without limitation:
| · | the public offering
price; |
| · | the names of any underwriters,
dealers or agents and the amount of securities underwritten or purchased by each of them,
if any; |
| · | any delayed delivery
arrangements; |
| · | the proceeds from the
sale of securities to us and the use of proceeds from the sale of the securities; |
| · | any underwriting discounts,
concessions, commissions, agency fees or other compensation payable to underwriters, dealers
or agents; |
| · | any discounts or concessions
allowed or re-allowed or repaid to dealers; |
| · | estimated offering expenses;
and |
| · | the securities exchanges
on which the securities will be listed, if any. |
We may grant underwriters options to purchase
additional securities at the public offering price, with additional underwriting commissions or discounts, as applicable, set forth in
the prospectus supplement. The terms of any such option will be set forth in the prospectus supplement for those securities.
Underwriters or agents may make sales in privately
negotiated transactions and/or any other method permitted by law, including sales deemed to be an “at-the-market” offering
as defined in Rule 415 under the Securities Act, which includes sales made directly on Nasdaq, the existing trading market for our common
stock, or sales made to or through a market maker other than on an exchange.
We may issue to our existing security holders,
though a dividend or similar distribution, rights to purchase shares of our common stock or preferred stock, which may or may not be
transferable. In any distribution of rights to our existing security holders, if all of the underlying securities are not subscribed
for, we may then sell the unsubscribed securities directly to third parties or may engage the services of one or more underwriters, dealers
or agents, including standby underwriters, to facilitate the distribution of the unsubscribed securities. The applicable prospectus supplement
will describe the specific terms of any offering of our common stock or preferred stock through the issuance of rights including, if
applicable, the material terms of any standby underwriting agreement or purchase agreement.
Sales Through Underwriters, Dealers or Agents; Direct Sales
If we use underwriters in any sale of securities
offered under this prospectus, the underwriters will buy the securities for their own account, including through underwriting, purchase,
security lending or repurchase agreements with us. The underwriters may then resell the securities in one or more transactions at a fixed
public offering price or at varying prices determined at the time of sale or thereafter. Unless otherwise indicated in the prospectus
supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions and the underwriters
will be obligated to purchase all the securities offered if they purchase any securities. The public offering price for the securities
and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
If we use dealers in any sale of securities offered
under this prospectus, the securities will be sold to such dealers as principals. The dealers may then resell the securities to the public
at varying prices to be determined by such dealers at the time of resale.
If agents are used in any sale of securities offered
under this prospectus, they will use their reasonable best efforts to solicit purchases for the period of their appointment or to sell
our securities on a continuing basis. If required, the prospectus supplement relating to any particular offering of securities will name
any agents designated to solicit offers and will include information about any commissions they may be paid in that offering.
If securities offered under this prospectus are
sold directly, no underwriters, dealers or agents would be involved.
We are not making an offer of securities in any
state that does not permit such an offer. If we sell securities through dealers or agents, or directly, the terms of any such sales will
be described in the applicable prospectus supplement.
Delayed Delivery Contracts
We may authorize underwriters, dealers or agents
to solicit offers from certain institutions whereby the institution contractually agrees to purchase the securities offered under this
prospectus from us on a future date at a specific price. This type of contract may be made only with institutions that we specifically
approve. Such institutions could include banks, insurance companies, pension funds, investment companies and educational and charitable
institutions. The underwriters, dealers or agents will not be responsible for the validity or performance of these contracts. The prospectus
supplement relating to the contracts will set forth the price to be paid for offered securities pursuant to such contracts, the commission
payable for solicitation of the contracts and the date or dates in the future for delivery of offered securities pursuant to the contracts.
Market Making, Stabilization and Other Transactions
Each issue of a new series of securities, other
than issuances of our common stock, will not have an established trading market, except as indicated in the applicable prospectus supplement.
Unless indicated in the applicable prospectus supplement, we do not expect to list the offered securities on a securities exchange, except
for our common stock, which is listed on Nasdaq. We can provide no assurance as to whether any of our securities will have a liquid trading
market.
In order to facilitate the offering of any of
the securities offered under this prospectus, the underwriters with respect to any such offering may, as described in the prospectus
supplement and in accordance with applicable law, engage in transactions that stabilize, maintain or otherwise affect the price of the
securities or any other securities the prices of which may be used to determine payments on these securities. Stabilizing transactions
involve bids to purchase the underlying security in the open market for the purpose of preventing or delaying a decline in the price
of the securities. Syndicate covering transactions involve purchases of the securities in the open market after the distribution has
been completed in order to cover syndicate short positions. Penalty bids permit the underwriters to reclaim a selling concession from
a syndicate member when the securities originally sold by the syndicate member are purchased in a stabilizing or syndicate covering transaction
to cover syndicate short positions. Any of these activities may have the effect of raising or maintaining the market price of our securities
or preventing or delaying a decline in the market price of our securities. As a result, the market price of the securities may be higher
than it otherwise would be in the absence of these transactions. The underwriters are not required to engage in these activities, and
may end any of these activities at any time, all as described in the applicable prospectus supplement.
Any person participating in the distribution of
securities will be subject to applicable provisions of the Exchange Act and the rules and regulations under the Exchange Act, including
Regulation M, which may limit the timing of transactions involving the securities offered under this prospectus. Furthermore, Regulation
M may restrict the ability of any person engaged in the distribution of such securities to engage in market-making activities with respect
to the particular securities being distributed. All of the above may affect the marketability of the securities offered under this prospectus
and the ability of any person or entity to engage in market-making activities with respect to such securities.
Derivative Transactions and Hedging
We, the underwriters or other agents engaged by
us may engage in derivative transactions involving the securities. These derivatives may consist of short sale transactions and other
hedging activities. The underwriters or agents may acquire a long or short position in the securities, hold or resell securities acquired
and purchase options or futures on the securities and other derivative instruments with returns linked or related to changes in the price
of the securities. In order to facilitate these derivative transactions, we may enter into security lending or repurchase agreements
with the underwriters or agents. The underwriters or agents may effect the derivative transactions through sales of the securities to
the public, including short sales, or by lending the securities in order to facilitate short sale transactions by others. The underwriters
or agents may also use the securities purchased or borrowed from us or others (or, in the case of derivatives, securities received from
us in settlement of those derivatives) to directly or indirectly settle sales of the securities or close out any related open borrowings
of the securities.
Electronic Auctions
We may also make sales through the Internet or
through other electronic means. Since we may from time to time elect to offer securities directly to the public, with or without the
involvement of agents, underwriters or dealers, utilizing the Internet or other forms of electronic bidding or ordering systems for the
pricing and allocation of such securities, you will want to pay particular attention to the description of that system, which we will
provide in a prospectus supplement.
Such electronic system may allow bidders to directly
participate, through electronic access to an auction site, by submitting conditional offers to buy that are subject to acceptance by
us, and which may directly affect the price or other terms and conditions at which such securities are sold. These bidding or ordering
systems may present to each bidder, on a so-called “real-time” basis, relevant information to assist in making a bid, such
as the clearing spread at which the offering would be sold, based on the bids submitted, and whether a bidder’s individual bids
would be accepted, prorated or rejected. For example, in the case of debt security, the clearing spread could be indicated as a number
of “basis points” above an index treasury note.
Upon completion of such an electronic auction
process, securities will be allocated based on prices bid, terms of bid or other factors. The final offering price at which securities
would be sold and the allocation of securities among bidders would be based in whole or in part on the results of the Internet or other
electronic bidding process or auction.
General Information
We expect that any agreements we may have with
underwriters, dealers and agents will include provisions indemnifying them against certain civil liabilities, including certain liabilities
under the Securities Act, or providing for contribution with respect to payments that they may be required to make. An underwriter, dealer
or agent, or any of their affiliates, may be a customer of, or otherwise engage in transactions with or perform services for us in the
ordinary course of business.
The specific terms of any lock-up provisions with
respect to any given offering will be described in the applicable prospectus supplement.
Under the securities laws of various states, the
securities offered under this prospectus may be sold in those states only through registered or licensed brokers or dealers. In addition,
in various states the securities offered under this prospectus may not be offered and sold unless such securities have been registered
or qualified for sale in the state or an exemption from such registration or qualification is available. We are not making an offer of
securities in any state that does not permit such an offer.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus
supplement, the validity of the securities will be passed upon for us by Covington & Burling LLP, Boston, Massachusetts. If legal
matters are passed upon by counsel for the underwriters, dealers or agents, if any, such counsel will be named in the prospectus supplement
relating to such offering.
EXPERTS
The financial statements of Eyenovia, Inc. as
of December 31, 2023 and 2022 and for each of the two years in the period ended December 31, 2023, 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 website at 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 www.eyenovia.com,
through which you can access our SEC filings. The information contained on, or that can be accessed through, our website is not a part
of this prospectus. We have included our website in this prospectus solely as an inactive textual reference.
INCORPORATION
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 :
| · | our Annual Report
on Form 10-K for the fiscal year ended December 31, 2023 that we filed with the SEC on March
18, 2024, as amended by Amendment No. 1, which we filed with the SEC on April
26, 2024; |
| · | our Quarterly Reports
on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30, 2024, that we filed
with the SEC on May
15, 2024 and August
14, 2024, respectively; |
| · | our Current Reports
on Form 8-K that we filed with the SEC on January
16, 2024, April
8, 2024, April
9, 2024, April
10, 2024, May
16, 2024, June
14, 2024, July
1, 2024, July
5, 2024, July
29, 2024, August
22, 2024, September
3, 2024, September
20, 2024 and September 30, 2024 (except for the information furnished under Items 2.02
or 7.01 and the exhibits furnished thereto); |
| · | 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 |
| · | 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. |
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, 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.
The
information in this prospectus is not complete and may be changed. These securities may not be sold until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell nor is it soliciting an offer
to buy these securities in any jurisdiction where such offer or sale is not permitted.
Subject to completion, dated October
1, 2024
PROSPECTUS
Up
to $25,000,000
Common
Stock
We have previously entered into an open market
sales agreement (the “Sales Agreement”) with Leerink Partners LLC (“Leerink Partners”), relating to the sale
of shares of our common stock, $0.0001 par value per share, offered by this prospectus. In accordance with the terms of the Sales Agreement,
pursuant to this prospectus, we may offer and sell shares of our common stock having an aggregate offering price of up to $25,000,000
from time to time through or to Leerink Partners, acting as our agent.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “EYEN”. On September 30, 2024, the last reported sale price of our common stock on The Nasdaq Capital
Market was $0.5166 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 (the “Securities Act”). Leerink Partners 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 Leerink Partners and us. There is no arrangement for funds to be received in any escrow,
trust or similar arrangement.
The compensation to Leerink Partners 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 13
of this prospectus for additional information regarding the compensation to be paid to Leerink Partners. In connection with the sale
of the common stock on our behalf, Leerink Partners will be deemed to be an “underwriter” within the meaning of the Securities
Act and the compensation of Leerink Partners will be deemed to be underwriting commissions. We have also agreed to provide indemnification
and contribution to Leerink Partners with respect to certain liabilities, including liabilities under the Securities Act.
We are 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
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 is truthful or complete.
Any representation to the contrary is a criminal offense.
Leerink Partners
The date of this prospectus
is , 2024.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we filed with the Securities and Exchange Commission (the “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 $25,000,000 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, as well as the
additional information described under the headings “Where You Can Find More Information” and “Incorporation 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.
We have not, and Leerink Partners has not,
authorized anyone to provide you with information that is different from or in addition to that contained or incorporated by reference
in this prospectus and in any related free writing prospectus filed by us with the SEC. Neither we nor Leerink Partners takes any responsibility
for, and can provide no assurance as to the reliability of, any information that others may give. We are not making an offer to sell
or soliciting an offer to buy our securities under any circumstance in any jurisdiction where the offer or solicitation is not permitted.
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 herein 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 this 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.
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.
All references in this prospectus to “Eyenovia,”
“EYEN,” “the company,” “we,” “us,” “our,” or similar references, refer to
Eyenovia, Inc., except where the context otherwise requires or as otherwise indicated.
PROSPECTUS
SUMMARY
This summary
highlights certain information about us, this offering and selected information contained elsewhere in or incorporated by reference into
this prospectus. This summary is not complete and does not contain all of the information that you should consider before deciding whether
to invest in our securities. For a more complete understanding of the company and this offering, you should read and consider carefully
the more detailed information in this prospectus, including the information incorporated by reference herein. If you invest in our securities,
you are assuming a high degree of risk. See “Risk Factors” beginning on page 8 of this prospectus and in the documents incorporated
by reference herein.
Overview
We are an ophthalmic
technology company focused on the late-stage development of MicroPine in the multi-billion dollar pediatric progressive myopia market
while commercializing Mydcombi™ (tropicamide and phenylephrine HCL ophthalmic spray) for inducing mydriasis for routine diagnostic
procedures and in conditions where short term pupil dilation is desired, and clobetasol propionate ophthalmic suspension, for the treatment
of post-operative pain and inflammation following ocular surgery. We are also developing the Optejet® delivery system both for use
in combination with our own drug-device therapeutic programs and for out-licensing for use in combination with therapeutics for additional
indications. Our aim is to improve the delivery of topical ophthalmic medication through the ergonomic design of the Optejet which facilitates
ease-of-use and delivery of more physiologically appropriate medication volume, with the goal to reduce side effects and improve tolerability,
and introduce digital health technology to improve therapy compliance and ultimately medical outcomes.
The ergonomic and
functional design of the Optejet allows for horizontal drug delivery and eliminates the need to tilt the head back or the manual dexterity
to squeeze a bottle to administer medications. Drug is delivered in a microscopic array of droplets faster than the blink reflex to help
ensure instillation success. The precise delivery of a low-volume columnar spray by the Optejet device minimizes contamination risk with
a non-protruding nozzle and self-closing shutter. In clinical trials, the Optejet has demonstrated that its targeted delivery achieves
a high rate of successful administration, with 98% of sprays being accurately delivered upon first attempt compared to the established
rate reported with traditional eye drops of approximately 50%.
A more physiologically
appropriate volume of medication in the range of seven to nine microliters is delivered by the Optejet, which is approximately one-fifth
of the 35 to 50 microliter dose typically delivered in a single eye drop. Lower volume of medication exposes the ocular surface to less
active ingredient and preservatives, potentially reducing ocular stress and surface damage and improving tolerability. The lower volume
also minimizes the potential for drug to enter systemic circulation, with the goal of avoiding some common side effects that are related
to overdosing of the eye.
We are developing
versions of the Optejet with on-board digital technology that records the date and time of each use. These data may be used to provide
reminders via Bluetooth to smart devices and to allow healthcare practitioners to monitor usage. This information can then be used by
practitioners and health care systems to measure treatment compliance and improve medical decision making. In this way, the Optejet could
serve as an extension of the physician’s office by providing information that is not currently possible to collect except through
the use of diaries.
We have also successfully
expanded our manufacturing capabilities through a partnership with Coastline International, Inc. located in Tijuana, Mexico, as well
as the construction of our new manufacturing facility in Reno, Nevada and the construction of our own fill and finish facility in Redwood
City, California. The U.S. Food and Drug Administration (“FDA”) approved the use of both Coastline International, Inc. and
our Redwood City facility for the production of Mydcombi cartridges, and the use of our Reno facility for the production of technical
elements such as the base unit for the Optejet device.
MicroLine is our
investigational pharmacologic treatment for presbyopia, a non-preventable, age-related hardening of the lens, which causes the gradual
loss of the eye’s ability to focus on near objects and impairs near visual acuity. We have completed two Phase III studies using
our Optejet® device. In these studies, patients reported high satisfaction with using the device, and a strong preference over
using an eye dropper bottle. Since completing these studies, the market opportunity has markedly deteriorated, and we have chosen to
put this program on hold and reallocate our resources towards larger opportunities. When and if the market improves, we have kept open
the option to continue development of MicroLine which would include a meeting with the FDA to review our clinical data to date.
Mydcombi is the
only FDA-approved fixed combination of the two leading mydriatic agents, tropicamide and phenylephrine in the United States and our first
FDA-approved product. As an ophthalmic spray delivered with Optejet technology, Mydcombi may present a number of benefits for ophthalmic
surgical centers, optometric and ophthalmic offices and patients. Those benefits may include improved cost-effectiveness in centers that
employ single-use bottles for mydriasis, more efficient use of office time and resources, and an overall improved doctor-patient experience.
We have begun the commercialization of Mydcombi, with the first commercial sale of the product occurring on August 3, 2023 as part of
a targeted launch, and expanded our launch with the hiring and onboarding of nine sales representatives through August 1, 2024. We received
FDA approval for our primary Mydcombi manufacturing facility in February 2024, which we believe will allow us to expand and continue
to build our manufacturing operations. On July 24, 2024, we received written comments from the FDA outlining the design of a clinical
bridging study to transition Mydcombi into our new Gen-2 Optejet device, which has a significantly lower cost to manufacture than the
currently approved product.
We are in active
discussions with manufacturers of existing and late-stage ophthalmic medications to explore whether development with the Optejet technology
can solve unmet medical and business needs. Some of those business needs could include extension of exclusivity under the Optejet patents,
improvement in a drug’s tolerability profile, or potential improvement in treatment compliance.
On August 15, 2023,
we entered into a license agreement (the “Formosa License”) with Formosa Pharmaceuticals Inc. (“Formosa”), whereby
we acquired the exclusive U.S. rights to commercialize any product related to a novel formulation of clobetasol propionate ophthalmic
suspension 0.05% (the “Licensed Product”), which was approved by the FDA for post-operative pain and inflammation after ocular
surgery on March 4, 2024. The Formosa License will remain in effect for ten years from the date of the first commercial sale of a Licensed
Product, unless earlier terminated. We paid Formosa an upfront payment in an aggregate amount of $2.0 million which consisted of (a)
cash in the amount of $1.0 million and (b) 487,805 shares of common stock valued at $1.0 million. We also capitalized $122,945 of transaction
costs in connection with the Formosa License. In addition, we must pay Formosa up to $4.0 million upon the achievement of certain development
milestones and up to $80.0 million upon the achievement of certain sales milestones. The trigger for the initial $2.0 million development
milestone payments was FDA approval of the Licensed Product and the effective date of the acceptance by the Company of the transfer and
assignment of the FDA approval, which occurred on March 14, 2024. Based on the achievement of this milestone, we paid Formosa the aggregate
amount of $2.0 million, consisting of (a) cash in the amount of $1.0 million on April 26, 2024 and (b) 613,496 shares of common stock
(calculated pursuant to the Formosa License at $1.0 million using a five-day volume-weighted average price on March 14, 2024). The remaining
$2.0 million development milestone (to be fully paid in cash) was earned and accrued upon FDA approval, but payment will be triggered
on the earlier of twelve months after FDA approval of the Licensed Product or six months following the first commercial sale of the Licensed
Product.
On July 23, 2024,
we entered into a collaboration agreement with Senju Pharmaceutical Co., Ltd. (“Senju”), under which the companies intend
to work to develop EYEN-520, a combination of Senju’s corneal epithelial wound healing candidate with our Optejet dispensing technology,
as a potential treatment for chronic dry eye disease. The companies anticipate a meeting with the FDA in late 2024, to be followed by
execution of a definitive agreement related to the further development of the product and anticipated completion of a Phase 2b study
in 2025. If successful, the collaboration agreement could be expanded to bring the product into two Phase 3 studies by 2026.
On August 7, 2024,
we entered into a collaboration agreement with Formosa under which the companies intend to work to develop EYEN-530, a combination of
Formosa’s clobetasol propionate ophthalmic solution with our Optejet dispensing technology, as a potential treatment for acute
dry eye flare-ups. The companies anticipate meeting with the FDA in late 2024, to be followed by execution of a definitive agreement
related to further development of the product and anticipated initiation of two Phase 3 studies by 2026.
On September 26, 2024, we announced the U.S. launch and commercial availability of clobetasol propionate ophthalmic suspension 0.05%.
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 (833) 393-6684. We maintain a website at 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.
Implications of Being a Smaller Reporting
Company
We are a “smaller
reporting company” as defined under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). We may take
advantage of certain of the scaled disclosures available to smaller reporting companies until the last day of the fiscal year in which
(i) the market value of our common stock held by non-affiliates exceeds $250 million as of the end of that year’s second fiscal
quarter and our annual revenue exceeds $100 million during such completed fiscal year, or (ii) the market value of our common stock held
by non-affiliates exceeds $700 million, regardless of our annual revenue, as of the end of that year’s second fiscal quarter.
THE
OFFERING
| Common stock offered by us |
Shares of our common stock having an aggregate offering price of up to $25,000,000. |
| |
|
| Common stock to be outstanding after this offering |
Up to 134,769,299 shares, assuming sales of 48,393,341 shares of common stock are made in this offering at an offering price of $0.5166 per share, which was the last reported sale price of shares of our common stock on The Nasdaq Capital Market (“Nasdaq”) on September 30, 2024. 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 or other existing trading market for shares of our common stock through or to Leerink Partners. See the section entitled “Plan of Distribution” on page 13 of this prospectus. |
| |
|
| Use of proceeds |
We intend to use the net proceeds, if any, of this offering to fund commercialization activities for Mydcombi and clobetasol propionate, complete the CHAPERONE pediatric myopia clinical study, and for working capital and general corporate purposes. Proceeds may also be used to repay amounts outstanding under the Loan and Security Agreement with Avenue Capital Management II, L.P. and related entities (together, “Avenue”). See the section titled “Use of Proceeds” on page 11 of this prospectus. |
| |
|
| Risk factors |
Investing in our common stock involves a high degree of risk. See “Risk Factors” beginning on page 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 |
Our shares of common stock are traded on the Nasdaq under the symbol “EYEN”. |
The number of shares of common stock outstanding
immediately after this offering is based on 55,817,921 shares of common stock outstanding as of June 30, 2024 (86,375,958 on a pro forma
basis to include 1,502,280 shares of common stock issued since June 30, 2024 pursuant to our at-the-market offering facility, 16,205,757
shares of common stock issued in registered direct offerings in July and September 2024 (the “Registered Direct Offerings”)
and 12,850,000 shares of common stock issued in a registered public offering in August 2024 (the “Public Offering”)).
This number excludes:
| · | 6,599,389
shares of our common stock underlying outstanding options to purchase common stock under
our 2014 Equity Incentive Plan, as amended (the “2014 Plan”) and our Amended
and Restated 2018 Omnibus Stock Incentive Plan (the “2018 Plan”) with a weighted
average exercise price of $2.91 per share; |
| · | 610,650
shares of our common stock issuable in connection with restricted stock units under the 2014
Plan and the 2018 Plan; |
| · | 322,228
shares of our common stock reserved for future issuance under the 2014 Plan and the 2018
Plan; |
| · | 2,327,747
shares of our common stock issuable upon conversion of outstanding convertible notes; and |
| |
· |
pre-funded warrants to purchase 65,653 shares of common stock with a nominal ($0.0001) exercise price and other warrants to purchase 28,947,744 shares of our common stock, with a weighted average exercise price of $0.68 per share. |
Unless
otherwise noted, the information in this prospectus reflects and assumes no exercise of outstanding options or 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, 2023, as amended by Amendment No. 1 thereto, 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. 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
If you purchase shares of common
stock in this offering, you will experience immediate and substantial dilution.
The offering price per share of common stock in
this offering may exceed the net tangible book value per share of our common stock outstanding prior to this offering. Assuming the sale
of an aggregate of 48,393,341 shares of our common stock at a price of $0.5166 per share, the last reported sale price of our common stock
on the Nasdaq on September 30, 2024, if you purchase shares of common stock in this offering, you would experience immediate dilution
of $0.30 per share, representing the difference between the price paid in this offering per share and our pro forma as adjusted net tangible
book value per share as of June 30, 2024 after giving effect to this offering. The exercise of outstanding stock options and warrants
will result in further dilution of your investment. See the section titled “Dilution” below for a more detailed illustration
of the dilution you would incur if you participate in this offering.
You may experience future dilution
as a result of future equity offerings.
In order to raise
additional capital, we may in the future offer additional shares of our common stock or other securities convertible into or exchangeable
for our common stock at prices that may not be the same as the price per share paid by any investor in this offering. We may sell shares
or other securities in any other offering at a price per share that is less than the price per share paid by investors in this offering,
and investors purchasing shares or other securities in the future could have rights superior to existing stockholders. The price per
share at which we sell additional shares of our common stock, or securities convertible or exchangeable into common stock, in future
transactions may be higher or lower than the price per share paid by investors in this offering.
If securities or industry analysts
do not publish research or reports about our business, or publish negative reports about our business, our stock price and trading volume
could decline.
The trading market
for our common stock will be influenced by the research and reports that securities or industry analysts publish about us or our business.
We do not have any control over these analysts. If one or more of the analysts who cover us downgrade our stock or change their opinion
of our stock in a negative manner, our stock price would likely decline. If one or more of these analysts cease coverage of our company
or fail to regularly publish reports on us, we could lose visibility in the financial markets, which could cause our stock price or trading
volume to decline.
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.
Our failure to meet the continued
listing requirements of Nasdaq could result in a delisting of our securities.
We currently do
not satisfy Nasdaq’s minimum stock price requirement. If we are unable to satisfy this requirement in the future, or if we fail
to satisfy any other continued listing requirements of Nasdaq, Nasdaq may take steps to delist our securities. Such a delisting would
likely have a negative effect on the price of our securities and would impair your ability to sell or purchase our securities when you
wish to do so. In the event of a delisting, we can provide no assurance that any action taken by us to restore compliance with listing
requirements would allow our securities to become listed again, stabilize the market price or improve the liquidity of our securities,
prevent our securities from dropping below the Nasdaq minimum stock price requirement or prevent future non-compliance with Nasdaq’s
listing requirements. Additionally, if our securities are not listed on, or become delisted from, Nasdaq for any reason, and are quoted
on the OTC Bulletin Board, an inter-dealer automated quotation system for equity securities that is not a national securities exchange,
the liquidity and price of our securities may be more limited than if we were quoted or listed on Nasdaq or another national securities
exchange. You may be unable to sell your securities unless a market can be established or sustained.
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 $25,000,000 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 Leerink
Partners at any time throughout the term of the Sales Agreement. The number of shares that are sold through Leerink Partners 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 Leerink Partners 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 11 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.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus
and the documents we have filed with the SEC that are incorporated by reference herein contain, and any prospectus supplement or free
writing prospectus that we may authorize for use in connection with this offering may contain “forward-looking statements”
within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. These statements relate to future events
or to our future operating or financial performance and involve known and unknown risks, uncertainties and other factors that may cause
our actual results, performance or achievements to be materially different from any future results, performances or achievements expressed
or implied by the forward-looking statements. Forward-looking statements may include, but are not limited to, statements about:
| · | 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; |
| · | our
expectations related to the use of proceeds from our financings, including this offering; |
| · | risks
of our and our licensees’ clinical trials including, but not limited to, the costs,
design, initiation and enrollment, 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 Mydcombi, clobetasol propionate and our product candidates; |
| · | the
production and commercialization of Mydcombi and clobetasol propionate; |
| · | reliance
on third parties to develop and commercialize Mydcombi, clobetasol propionate and certain
of our product candidates; |
| · | our
and our partners’ ability to timely develop, implement and maintain manufacturing,
commercialization and marketing capabilities and strategies for Mydcombi, clobetasol propionate
and certain of our product candidates; |
| · | our
estimates regarding the potential market opportunities for Mydcombi, clobetasol propionate
and our product candidates; |
| · | the
potential advantages of Mydcombi, clobetasol propionate and our product candidates and platform
technology and potential revenues from licensing transactions; |
| · | the
rate and degree of market acceptance and clinical utility of Mydcombi, clobetasol propionate
and 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. |
In some cases, you
can identify forward-looking statements by terms such as “anticipate,” “believe,” “can,” “continue,”
“could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,”
“potential,” “project,” “seek,” “should,” “target,” “will,” “would”
and similar expressions or variations intended to identify forward- looking statements. These statements reflect our current views with
respect to future events, are based on assumptions and are subject to risks and uncertainties. Given these uncertainties, you should
not place undue reliance on these forward-looking statements. We discuss in greater detail, and incorporate by reference into this prospectus
in their entirety, many of these risks under the headings “Risk Factors” on page 8 of this prospectus and in our Annual Report
on Form 10-K for the year ended December 31, 2023, as amended by Amendment No. 1 thereto, as updated by our subsequent filings under
the Exchange Act, which are incorporated herein by reference, and as may be updated or superseded by the risks and uncertainties described
under similar headings in the other documents that are filed after the date hereof and incorporated by reference into this prospectus.
Also, these forward-looking statements represent our estimates and assumptions only as of the date of the document containing the applicable
statement.
You
should read this prospectus, the documents we have filed with the SEC that are incorporated by reference herein and any prospectus supplement
or free writing prospectus that we have authorized for use in connection with this offering completely and with the understanding that
our actual future results may be materially different from what we expect. We qualify all of the forward-looking statements in the foregoing
documents by these cautionary statements.
Unless required
by law, we undertake no obligation to update or revise any forward-looking statements to reflect new information or future events or
developments. Thus, you should not assume that our silence over time means that actual events are bearing out as expressed or implied
in such forward-looking statements.
USE
OF PROCEEDS
We may issue and
sell up to $25,000,000 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 Leerink Partners as a source of
financing.
We currently intend
to use the net proceeds, if any, from the sale of securities in this offering to fund commercialization activities for Mydcombi and clobetasol
propionate, complete the CHAPERONE pediatric myopia clinical study, and for working capital and general corporate purposes. Proceeds
may also be used to repay amounts outstanding under the Loan and Security Agreement with Avenue. The Avenue loan bears interest at an
annual rate equal to the greater of (a) 7.0% and (b) the prime rate as reported in The Wall Street Journal plus 4.45%. The maturity date
is November 1, 2025.
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.
DILUTION
If you invest in
our common stock in this offering, your ownership interest will be diluted to the extent of the difference between the offering price
per share of common stock paid by the purchasers in this offering and our pro forma as adjusted net tangible book value per share immediately
after this offering.
Our historical net
tangible book deficit as of June 30, 2024 was approximately $(8.5) million, or $(0.15) per share of common stock. We calculate tangible
book value (deficit) per share by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock
outstanding as of June 30, 2024.
Our pro forma net
tangible book value as of June 30, 2024 was approximately $5.0 million, or $0.06 per share of common stock. We calculate pro forma net
tangible book value per share by dividing (a) the total of (i) our historical net tangible book value, (ii) the net proceeds received
after June 30, 2024 from our at-the-market offering, (iii) the net proceeds received in the Registered Direct Offerings and (iv) the net
proceeds received in the Public Offering, by (b) the sum of (i) the total number of shares of our common stock outstanding as of June
30, 2024, (ii) the number of shares of our common stock issued after June 30, 2024 in our at-the-market offering, (iii) the number of
shares issued in the Registered Direct Offerings and (iv) the number of shares issued in the Public Offering.
After giving effect to the sale by us of shares
of our common stock in this offering in the aggregate amount of $25.0 million, at an assumed public offering price of $0.5166 per share
of common stock, the last reported sale price of our common stock on the Nasdaq on September 30, 2024, and after deducting the fees of
Leerink Partners and estimated offering expenses payable by us, our pro forma as adjusted net tangible book value as of June 30, 2024
would have been approximately $29.1 million, or $0.22 per share. This represents an immediate increase in net tangible book value of $0.16
per share to existing stockholders and immediate dilution in net tangible book value of $0.30 per share to new investors in this offering
at the offering price. The following table illustrates this dilution on a per share basis:
| Offering price per share of common stock |
|
|
|
|
$ |
0.5166 |
|
| Historical net tangible book deficit per share as of June 30, 2024 |
|
$ |
(0.15 |
) |
|
|
|
|
| Pro forma increase in net tangible book value per share |
|
|
0.21 |
|
|
|
|
|
| Pro forma net tangible book deficit per share as of June 30, 2024 |
|
|
0.06 |
|
|
|
|
|
| Increase per share attributable to investors in this offering |
|
|
0.16 |
|
|
|
|
|
| Pro forma as adjusted net tangible book value per share after this offering |
|
|
|
|
|
|
0.22 |
|
| Dilution per share to investors in this offering |
|
|
|
|
|
$ |
0.30 |
|
The number of shares of common stock outstanding
immediately after this offering is based on 55,817,921 shares of common stock outstanding as of June 30, 2024 (86,375,958 on a pro forma
basis, which includes 1,502,280 shares of common stock issued since June 30, 2024 pursuant to our at-the-market offering facility, 16,205,757
shares of common stock issued in the Registered Direct Offerings and 12,850,000 shares of common stock issued in the Public Offering).
This number excludes:
| · | 6,599,389
shares of our common stock underlying outstanding options to purchase common stock under
the 2014 Plan and the 2018 Plan with a weighted average exercise price of $2.91 per share; |
| · | 610,650
shares of our common stock issuable in connection with restricted stock units under the 2014
Plan and the 2018 Plan; |
| · | 322,228
shares of our common stock reserved for future issuance under the 2014 Plan and the 2018
Plan; |
| · | 2,327,747
shares of our common stock issuable upon conversion of outstanding convertible notes; and |
| |
· |
pre-funded warrants to purchase 65,653 shares of common stock with a nominal ($0.0001) exercise price and other warrants to purchase 28,947,744 shares of our common stock, with a weighted average exercise price of $0.68 per share. |
In addition, the
amounts in the table above assume no exercise of outstanding options or warrants.
PLAN
OF DISTRIBUTION
We have entered into a Sales Agreement with Leerink
Partners 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 Leerink Partners as our sales agent. As of the date of this prospectus, an aggregate of approximately $16,413,442.14 of
shares of common stock have been sold pursuant to the Sales Agreement. Up to $25,000,000 of shares of common stock may be sold pursuant
to this prospectus. 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 or any other trading market for our common stock. If authorized by us in writing, Leerink Partners may purchase shares
of our common stock as principal.
Leerink Partners
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 Leerink Partners. We will designate the maximum amount of common stock to be sold through Leerink Partners on a daily
basis or otherwise determine such maximum amount together with Leerink Partners. Subject to the terms and conditions of the Sales Agreement,
Leerink Partners 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 Leerink Partners 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. Leerink Partners or we may suspend the offering
of shares of our common stock being made through Leerink Partners under the Sales Agreement upon proper notice to the other party. Leerink
Partners 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 Leerink Partners 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 previously reimbursed Leerink Partners $75,000 of Leerink Partners’ actual outside legal expenses incurred
by Leerink Partners in connection with prior sales under the Sales Agreement. We have also agreed to reimburse Leerink Partners for certain
ongoing fees of its legal counsel. We estimate that the total expenses of the offering payable by us, excluding commissions payable to
Leerink Partners under the Sales Agreement, will be approximately $75,000.
Leerink Partners
will provide written confirmation to us following the close of trading on the Nasdaq 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 first 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 Leerink Partners under the Sales Agreement and the net proceeds to
us 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, Leerink Partners may be deemed to be an “underwriter” within the meaning
of the Securities Act, and the compensation paid to Leerink Partners may be deemed to be underwriting commissions or discounts. We have
agreed in the Sales Agreement to provide indemnification and contribution to Leerink Partners against certain liabilities, including
liabilities under the Securities Act. As sales agent, Leerink Partners will not engage in any transactions that stabilize our common
stock.
LEGAL
MATTERS
The validity of
the common stock offered by this prospectus will be passed upon for us by Covington & Burling LLP, Boston, Massachusetts. Paul Hastings
LLP, New York, New York, is representing Leerink Partners in connection with this offering.
EXPERTS
The financial statements
of Eyenovia, Inc. as of December 31, 2023 and 2022 and for each of the two years in the period ended December 31, 2023, 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 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 www.eyenovia.com, through which you can access our SEC filings. The information contained on, or that can be accessed through,
our website is not a part of this prospectus. We have included our website in this prospectus solely as an inactive textual reference.
INCORPORATION
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:
| · | our
Annual Report on Form 10-K for the fiscal year ended December 31, 2023 that we filed with
the SEC on March
18, 2024, as amended by Amendment No. 1, which we filed with the SEC on April
26, 2024; |
| · | our
Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30,
2024, that we filed with the SEC on May
15, 2024 and August
14, 2024, respectively; |
| · | our
Current Reports on Form 8-K that we filed with the SEC on January
16, 2024, April
8, 2024, April
9, 2024, April
10, 2024, May
16, 2024, June
14, 2024, July
1, 2024, July
5, 2024, July
29, 2024, August
22, 2024, September
3, 2024, September
20, 2024 and September 30, 2024 (except for the information furnished under Items 2.02
or 7.01 and the exhibits furnished thereto); |
| · | 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 |
| · | 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. |
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, 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.
Up to $25,000,000
Common Stock
Prospectus
Leerink Partners
,
2024
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance
and Distribution.
The following table
sets forth the various expenses payable by us in connection with the sale and distribution of the securities being registered hereby.
| |
|
Amount to
be paid |
|
| SEC registration fee |
|
$ |
11,794.06 |
|
| FINRA filing fee |
|
$ |
15,500.00 |
|
| Legal fees and expenses |
|
|
* |
|
| Accounting fees and expenses |
|
|
* |
|
| Printing and engraving expenses |
|
|
* |
|
| Transfer agent fees and expenses |
|
|
* |
|
| Listing fees and expenses |
|
|
* |
|
| Miscellaneous |
|
|
* |
|
| Total |
|
$ |
* |
|
* These fees are calculated based on
the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors
and Officers.
Section 145 of the
General Corporation Law of the State of Delaware (the “DGCL”) permits a corporation to indemnify any director or officer
of a corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with any action, suit or proceeding brought by reason of the fact that such person is or was a director or officer
of the corporation, if such person acted in good faith and in a manner that such 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, if such person had no reason to believe
their conduct was unlawful. In a derivative action (i.e., one brought by or on behalf of the corporation), however, indemnification may
be made only for expenses, actually and reasonably incurred by any director or officer in connection with the defense or settlement of
such action or suit, if such person acted in good faith and in a manner that such person reasonably believed to be in or not opposed
to the best interests of the corporation, except that no indemnification shall be made if such person shall have been adjudged to be
liable to the corporation, unless and only to the extent that the Delaware Court of Chancery or the court in which the action or suit
was brought shall determine that the defendant is fairly and reasonably entitled to indemnity for such expenses despite such adjudication
of liability.
The Company’s
Third Amended and Restated Certificate of Incorporation, as amended (the “Charter”) and Second Amended and Restated Bylaws
(the “Bylaws”) contain provisions that provide for the indemnification of directors and officers consistent with the applicable
provisions of the DGCL. If a present or former director or officer successfully defends against any claim subject to indemnification
by the Company, they shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred in connection
therewith.
In accordance with Section 102(b)(7)
of the DGCL, the Charter provides that no director of the Company shall be liable to the Company or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted
under the DGCL.
The Company maintains
a general liability insurance policy which covers certain liabilities of directors and officers of the Company arising out of claims
based on acts or omissions in their capacities as directors or officers.
Item 16. Exhibits.
* To be filed by amendment or
incorporated by reference in connection with the offering of the securities.
Item 17. Undertakings.
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;
(ii) To reflect in
the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration
Fee” table in the effective registration statement; 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 the undertakings set forth in paragraphs (1)(i),
(1)(ii) and (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 SEC by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act
of 1934 that are incorporated by reference in this 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, 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 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 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 to any purchaser in the initial distribution of the securities,
the undersigned registrant undertakes that 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 such 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.
(6) That, for purposes
of determining any liability under the Securities Act, 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.
(7) Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant
to the foregoing provisions, or otherwise, the registrant has 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. 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 Securities Act and will be governed by the final adjudication of such issue.
(8) 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 in
accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Trust Indenture 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 October 1, 2024.
| |
EYENOVIA, INC. |
| |
|
| |
By: |
/s/ Michael Rowe |
| |
Name: |
Michael Rowe |
| |
Title: |
Chief Executive Officer and Director |
POWER OF ATTORNEY
KNOW ALL PERSONS
BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints each of Michael Rowe and Andrew Jones his
or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her
name, place and stead, in any and all capacities, to sign any and all amendments, including post-effective amendments, to the Registration
Statement, and any registration statement relating to any offering covered by the Registration Statement and filed pursuant to Rule 462(b)
under the Securities Act, and to file the same, with exhibits thereto and other documents in connection therewith, with the SEC, 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
and necessary to be done, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming
all that each of said attorneys-in-fact and agents or their substitute or substitutes may lawfully so 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.
| Name |
|
Position |
|
Date |
| |
|
|
|
|
| /s/ Michael Rowe |
|
Chief Executive Officer and Director |
|
October 1, 2024 |
| Michael Rowe |
|
(Principal Executive Officer) |
|
|
| |
|
|
|
|
| /s/ Andrew Jones |
|
Chief Financial Officer |
|
October 1, 2024 |
| Andrew Jones |
|
(Principal Financial and Accounting Officer) |
|
|
| |
|
|
|
|
| /s/ Michael Geltzeiler |
|
Director |
|
October 1, 2024 |
| Michael Geltzeiler |
|
|
|
|
| |
|
|
|
|
| /s/ Tsontcho
Ianchulev |
|
Director |
|
October 1, 2024 |
| Tsontcho Ianchulev |
|
|
|
|
| |
|
|
|
|
| /s/ Rachel Jacobson |
|
Director |
|
October 1, 2024 |
| Rachel Jacobson |
|
|
|
|
| |
|
|
|
|
| /s/ Charles E.
Mather IV |
|
Director |
|
October 1, 2024 |
| Charles E. Mather IV |
|
|
|
|
| |
|
|
|
|
| /s/ Ram Palanki |
|
Director |
|
October 1, 2024 |
| Ram Palanki |
|
|
|
|
| |
|
|
|
|
| /s/ Ellen Strahlman |
|
Director |
|
October 1, 2024 |
| Ellen Strahlman |
|
|
|
|
Exhibit 4.1
EYENOVIA, INC.
INDENTURE
Dated as of ___________, 20___
[_________]
Trustee
TABLE OF CONTENTS
| ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
| Section 1.1. | |
Definitions. |
1 |
| Section 1.2. | |
Other Definitions. |
3 |
| Section 1.3. | |
Incorporation by Reference of
Trust Indenture Act. |
4 |
| Section 1.4. | |
Rules of Construction. |
4 |
| | |
|
|
| ARTICLE II.
THE SECURITIES |
4 |
| Section 2.1. | |
Issuable in Series. |
4 |
| Section 2.2. | |
Establishment of Terms of Series of
Securities. |
4 |
| Section 2.3. | |
Execution and Authentication. |
6 |
| Section 2.4. | |
Registrar and Paying Agent. |
7 |
| Section 2.5. | |
Paying Agent to Hold Money in
Trust. |
7 |
| Section 2.6. | |
Securityholder Lists. |
8 |
| Section 2.7. | |
Transfer and Exchange. |
8 |
| Section 2.8. | |
Mutilated, Destroyed, Lost and
Stolen Securities. |
8 |
| Section 2.9. | |
Outstanding Securities. |
9 |
| Section 2.10. | |
Treasury Securities. |
9 |
| Section 2.11. | |
Temporary Securities. |
9 |
| Section 2.12. | |
Cancellation. |
9 |
| Section 2.13. | |
Defaulted Interest. |
10 |
| Section 2.14. | |
Global Securities. |
10 |
| Section 2.15. | |
CUSIP Numbers. |
11 |
| | |
|
|
| ARTICLE III.
REDEMPTION |
11 |
| Section 3.1. | |
Notice to Trustee. |
11 |
| Section 3.2. | |
Selection of Securities to be
Redeemed. |
11 |
| Section 3.3. | |
Notice of Redemption. |
12 |
| Section 3.4. | |
Effect of Notice of Redemption. |
12 |
| Section 3.5. | |
Deposit of Redemption Price. |
12 |
| Section 3.6. | |
Securities Redeemed in Part. |
12 |
| | |
|
|
| ARTICLE IV.
COVENANTS |
13 |
| Section 4.1. | |
Payment of Principal and Interest. |
13 |
| Section 4.2. | |
SEC Reports. |
13 |
| Section 4.3. | |
Compliance Certificate. |
13 |
| Section 4.4. | |
Stay, Extension and Usury Laws. |
13 |
| | |
|
|
| ARTICLE V.
SUCCESSORS |
14 |
| Section 5.1. | |
When Company May Merge,
Etc. |
14 |
| Section 5.2. | |
Successor Corporation Substituted. |
14 |
| | |
|
|
| ARTICLE VI.
DEFAULTS AND REMEDIES |
14 |
| Section 6.1. | |
Events of Default. |
14 |
| Section 6.2. | |
Acceleration of Maturity; Rescission
and Annulment. |
15 |
| Section 6.3. | |
Collection of Indebtedness and
Suits for Enforcement by Trustee. |
16 |
| Section 6.4. | |
Trustee May File Proofs of
Claim. |
16 |
| Section 6.5. | |
Trustee May Enforce Claims
Without Possession of Securities. |
17 |
| Section 6.6. | |
Application of Money Collected. |
17 |
| Section 6.7. | |
Limitation on Suits. |
17 |
| Section 6.8. | |
Unconditional Right of Holders
to Receive Principal and Interest. |
18 |
| Section 6.9. | |
Restoration of Rights and Remedies. |
18 |
| Section 6.10. | |
Rights and Remedies Cumulative. |
18 |
| Section 6.11. | |
Delay or Omission Not Waiver. |
18 |
| Section 6.12. | |
Control by Holders. |
18 |
| Section 6.13. | |
Waiver of Past Defaults. |
19 |
| Section 6.14. | |
Undertaking for Costs. |
19 |
| | |
|
|
| ARTICLE VII.
TRUSTEE |
19 |
| Section 7.1. | |
Duties of Trustee. |
19 |
| Section 7.2. | |
Rights of Trustee. |
20 |
| Section 7.3. | |
Individual Rights of Trustee. |
20 |
| Section 7.4. | |
Trustee’s Disclaimer. |
21 |
| Section 7.5. | |
Notice of Defaults. |
21 |
| Section 7.6. | |
Reports by Trustee to Holders. |
21 |
| Section 7.7. | |
Compensation and Indemnity. |
21 |
| Section 7.8. | |
Replacement of Trustee. |
22 |
| Section 7.9. | |
Successor Trustee by Merger,
Etc. |
22 |
| Section 7.10. | |
Eligibility; Disqualification. |
22 |
| Section 7.11. | |
Preferential Collection of Claims
Against Company. |
23 |
| | |
|
|
| ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE |
23 |
| Section 8.1. | |
Satisfaction and Discharge of
Indenture. |
23 |
| Section 8.2. | |
Application of Trust Funds;
Indemnification. |
23 |
| Section 8.3. | |
Legal Defeasance of Securities
of any Series. |
24 |
| Section 8.4. | |
Covenant Defeasance. |
25 |
| Section 8.5. | |
Repayment to Company. |
26 |
| Section 8.6. | |
Reinstatement. |
26 |
| | |
|
|
| ARTICLE IX.
AMENDMENTS AND WAIVERS |
26 |
| Section 9.1. | |
Without Consent of Holders. |
26 |
| Section 9.2. | |
With Consent of Holders. |
26 |
| Section 9.3. | |
Limitations. |
27 |
| Section 9.4. | |
Compliance with Trust Indenture
Act. |
27 |
| Section 9.5. | |
Revocation and Effect of Consents. |
27 |
| Section 9.6. | |
Notation on or Exchange of Securities. |
28 |
| Section 9.7. | |
Trustee Protected. |
28 |
| | |
|
|
| ARTICLE X.
MISCELLANEOUS |
28 |
| Section 10.1. | |
Section 10.1. Trust Indenture
Act Controls. |
28 |
| Section 10.2. | |
Notices. |
28 |
| Section 10.3. | |
Communication by Holders with
Other Holders. |
29 |
| Section 10.4. | |
Certificate and Opinion as to
Conditions Precedent. |
29 |
| Section 10.5. | |
Statements Required in Certificate
or Opinion. |
29 |
| Section 10.6. | |
Rules by Trustee and
Agents. |
30 |
| Section 10.7. | |
Legal Holidays. |
30 |
| Section 10.8. | |
No Recourse Against Others. |
30 |
| Section 10.9. | |
Counterparts. |
30 |
| Section 10.10. | |
Governing Law; Waiver of Jury
Trial; Consent to Jurisdiction. |
30 |
| Section 10.11. | |
No Adverse Interpretation of
Other Agreements. |
31 |
| Section 10.12. | |
Successors. |
31 |
| Section 10.13. | |
Severability. |
31 |
| Section 10.14. | |
Table of Contents, Headings,
Etc. |
31 |
| Section 10.15. | |
Securities in a Foreign Currency. |
31 |
| Section 10.16. | |
Judgment Currency. |
32 |
| Section 10.17. | |
Force Majeure. |
32 |
| | |
|
|
| ARTICLE XI.
SINKING FUNDS |
32 |
| Section 11.1. | |
Applicability of Article. |
32 |
| Section 11.2. | |
Satisfaction of Sinking Fund
Payments with Securities. |
33 |
| Section 11.3. | |
Redemption of Securities for
Sinking Fund. |
33 |
EYENOVIA, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of ____________, 20__
| §310(a)(1) |
|
|
|
7.10 |
| (a)(2) |
|
|
|
7.10 |
| (a)(3) |
|
|
|
Not
Applicable |
| (a)(4) |
|
|
|
Not
Applicable |
| (a)(5) |
|
|
|
7.10 |
| (b) |
|
|
|
7.10 |
| §311(a) |
|
|
|
7.11 |
| (b) |
|
|
|
7.11 |
| (c) |
|
|
|
Not
Applicable |
| §312(a) |
|
|
|
2.6 |
| (b) |
|
|
|
10.3 |
| (c) |
|
|
|
10.3 |
| §313(a) |
|
|
|
7.6 |
| (b)(1) |
|
|
|
7.6 |
| (b)(2) |
|
|
|
7.6 |
| (c)(1) |
|
|
|
7.6 |
| (d) |
|
|
|
7.6 |
| §314(a) |
|
|
|
4.2, 10.5 |
| (b) |
|
|
|
Not
Applicable |
| (c)(1) |
|
|
|
10.4 |
| (c)(2) |
|
|
|
10.4 |
| (c)(3) |
|
|
|
Not
Applicable |
| (d) |
|
|
|
Not
Applicable |
| (e) |
|
|
|
10.5 |
| (f) |
|
|
|
Not
Applicable |
| §315(a) |
|
|
|
7.1 |
| (b) |
|
|
|
7.5 |
| (c) |
|
|
|
7.1 |
| (d) |
|
|
|
7.1 |
| (e) |
|
|
|
6.14 |
| §316(a) |
|
|
|
1.1 |
| (a)(1)(A) |
|
|
|
6.12 |
| (a)(1)(B) |
|
|
|
6.13 |
| (a)(2) |
|
|
|
Not Applicable |
| (b) |
|
|
|
6.8 |
| |
|
|
|
|
| §317(a)(1) |
|
|
|
6.3 |
| (a)(2) |
|
|
|
6.4 |
| (b) |
|
|
|
2.5 |
| §318(a) |
|
|
|
10.1 |
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
Indenture dated as of __________, 20__ between
Eyenovia, Inc., a company incorporated under the laws of Delaware (“Company”), and [______] (“Trustee”).
Each party agrees as follows for the benefit of
the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
“Affiliate” of any specified
person means any other person directly or indirectly controlling or controlled by or under common control with such specified person.
For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by”
and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities
or by agreement or otherwise.
“Agent” means any Registrar,
Paying Agent or Notice Agent.
“Board of Directors” means
the board of directors of the Company or any duly authorized committee thereof.
“Board Resolution” means a
copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of Directors
or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered
to the Trustee.
“Business Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York, New York (or in connection with any payment, the place of payment)
on which banking institutions are authorized or required by law, regulation or executive order to close.
“Capital Stock” means any and
all shares, interests, participations, rights or other equivalents (however designated) of corporate stock.
“Company” means the party named
as such above until a successor replaces it and thereafter means the successor.
“Company Order” means a written
order signed in the name of the Company by an Officer.
“Corporate Trust Office” means
the office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.
“Default” means any event which
is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” means, with respect
to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person designated
as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and
if at any time there is more than one such person, “Depositary” as used with respect to the Securities of any Series shall
mean the Depositary with respect to the Securities of such Series.
“Discount Security” means any
Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.2.
“Dollars” and “$”
means the currency of The United States of America.
“Exchange Act” means the Securities
Exchange Act of 1934, as amended.
“Foreign Currency” means any
currency or currency unit issued by a government other than the government of The United States of America.
“Foreign Government Obligations”
means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations
guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith and
credit is pledged and which are not callable or redeemable at the option of the issuer thereof.
“GAAP”
means accounting principles generally accepted in the United States of America set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.
“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing
all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of
such Depositary or nominee.
“Holder” or “Securityholder”
means a person in whose name a Security is registered.
“Indenture” means this Indenture
as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities established
as contemplated hereunder.
“interest” with respect to
any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Maturity,” when used with
respect to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Officer” means the Chief Executive
Officer, President, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant Secretary, and
any Vice President of the Company.
“Officer’s Certificate”
means a certificate signed by any Officer.
“Opinion of Counsel” means
a written opinion of legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company. The
opinion may contain customary limitations, conditions and exceptions.
“person” means any individual,
corporation, partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“principal” of a Security means
the principal of the Security plus, when appropriate, the premium, if any, on the Security.
“Responsible Officer” means
any officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with a particular subject.
“SEC” means the Securities
and Exchange Commission.
“Securities” means the debentures,
notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of
Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1
and 2.2 hereof.
“Stated Maturity” when used
with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest
is due and payable.
“Subsidiary” of any specified
person means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or
a combination thereof.
“TIA” means the Trust Indenture
Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however, that
in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such amendment,
the Trust Indenture Act as so amended.
“Trustee” means the person
named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each person who is then a Trustee
hereunder, and if at any time there is more than one such person, “Trustee” as used with respect to the Securities of any
Series shall mean the Trustee with respect to Securities of that Series.
“U.S. Government Obligations”
means securities which are direct obligations of, or guaranteed by, The United States of America for the payment of which its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary
receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided
that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such
depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such depositary
receipt.
Section 1.2. Other
Definitions.
| TERM | |
DEFINED IN
SECTION | |
| “Bankruptcy Law” | |
| 6.1 | |
| “Custodian” | |
| 6.1 | |
| “Event of Default” | |
| 6.1 | |
| “Judgment Currency” | |
| 10.16 | |
| “Legal Holiday” | |
| 10.7 | |
| “mandatory sinking fund payment” | |
| 11.1 | |
| “New York Banking Day” | |
| 10.16 | |
| “Notice Agent” | |
| 2.4 | |
| “optional sinking fund payment” | |
| 11.1 | |
| “Paying Agent” | |
| 2.4 | |
| “Registrar” | |
| 2.4 | |
| “Required Currency” | |
| 10.16 | |
| “Specified Courts” | |
| 10.10 | |
| “successor person” | |
| 5.1 | |
Section 1.3. Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture
have the following meanings:
“Commission” means the SEC.
“indenture securities” means
the Securities.
“indenture security holder”
means a Securityholder.
“indenture to be qualified”
means this Indenture.
“indenture trustee” or “institutional
trustee” means the Trustee.
“obligor” on the indenture
securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined herein
are used herein as so defined.
Section 1.4. Rules of
Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural,
and in the plural include the singular; and
(e) provisions apply to successive events
and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Issuable
in Series.
The aggregate principal amount of Securities that
may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series. All Securities
of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution, a supplemental
indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution.
In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s Certificate or supplemental
indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method
by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined.
Securities may differ between Series in respect of any matters, provided that all Series of Securities shall be equally and
ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment
of Terms of Series of Securities.
At or prior to the issuance of any Securities
within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to
such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant
to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officer’s
Certificate:
2.2.1. the title (which shall distinguish the
Securities of that particular Series from the Securities of any other Series) and ranking (including the terms of any subordination
provisions) of the Series;
2.2.2. the price or prices (expressed as a percentage
of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. any limit upon the aggregate principal
amount of the Securities of the Series which may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the Series pursuant to Section 2.7,
2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal
of the Securities of the Series is payable;
2.2.5. the rate or rates (which may be fixed or
variable) per annum or, if applicable, the method used to determine such rate or rates (including, but not limited to, any commodity,
commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the
date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if any, shall commence and be
payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the place or places where the principal
of and interest, if any, on the Securities of the Series shall be payable, where the Securities of such Series may be surrendered
for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and
this Indenture may be delivered, and the method of such payment, if by wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within
which, the price or prices at which and the terms and conditions upon which the Securities of the Series may be redeemed, in whole
or in part, at the option of the Company;
2.2.8. the obligation, if any, of the Company
to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the
Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9. the dates, if any, on which and the price
or prices at which the Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other
detailed terms and provisions of such repurchase obligations;
2.2.10. if other than denominations of $1,000
and any integral multiple thereof, the denominations in which the Securities of the Series shall be issuable;
2.2.11. the forms of the Securities of the Series and
whether the Securities will be issuable as Global Securities;
2.2.12. if other than the principal amount thereof,
the portion of the principal amount of the Securities of the Series that shall be payable upon declaration of acceleration of the
maturity thereof pursuant to Section 6.2;
2.2.13. the currency of denomination of the Securities
of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination is a composite currency, the agency
or organization, if any, responsible for overseeing such composite currency;
2.2.14. the designation of the currency, currencies
or currency units in which payment of the principal of and interest, if any, on the Securities of the Series will be made;
2.2.15. if payments of principal of or interest,
if any, on the Securities of the Series are to be made in one or more currencies or currency units other than that or those in which
such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;
2.2.16. the manner in which the amounts of payment
of principal of or interest, if any, on the Securities of the Series will be determined, if such amounts may be determined by reference
to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
2.2.17. the provisions, if any, relating to any
security provided for the Securities of the Series;
2.2.18. any addition to, deletion of or change
in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19. any addition to, deletion of or change
in the covenants set forth in Articles IV or V which applies to Securities of the Series;
2.2.20. any Depositaries, interest rate calculation
agents, exchange rate calculation agents or other agents with respect to Securities of such Series if other than those appointed
herein;
2.2.21. the provisions, if any, relating to conversion
or exchange of any Securities of such Series, including if applicable, the conversion or exchange price, the conversion or exchange period,
provisions as to whether conversion or exchange will be mandatory, at the option of the Holders thereof or at the option of the Company,
the events requiring an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange if such Series of
Securities are redeemed;
2.2.22. any other terms of the Series (which
may supplement, modify or delete any provision of this Indenture insofar as it applies to such Series), including any terms that may be
required under applicable law or regulations or advisable in connection with the marketing of Securities of that Series; and
2.2.23. whether any of the Company’s direct
or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of subordination, if any, of such guarantees.
All Securities of any one Series need not
be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or pursuant
to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.
Section 2.3. Execution
and Authentication.
An Officer shall sign the Securities for the Company
by manual or facsimile signature.
If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall at any time, and from time to
time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto
or Officer’s Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date of its authentication.
The aggregate principal amount of Securities of
any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the
Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as provided
in Section 2.8.
Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities
within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s
Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4.
The Trustee shall have the right to decline to
authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action
may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee or a trust
committee of directors and/or vice-presidents or a committee of Responsible Officers shall determine that such action would expose the
Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar
and Paying Agent.
The Company shall maintain, with respect to each
Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office or
agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities
of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and
demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice
Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange.
The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar,
Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent
or shall fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands; provided, however, that any appointment of the Trustee as the Notice Agent shall exclude
the appointment of the Trustee or any office of the Trustee as an agent to receive the service of legal process on the Company.
The Company may also from time to time designate
one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain a Registrar,
Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes.
The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the name or address
of any such co-registrar, additional paying agent or additional notice agent. The term “Registrar” includes any co-registrar;
the term “Paying Agent” includes any additional paying agent; and the term “Notice Agent” includes
any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
The Company hereby appoints the Trustee the initial
Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent, as the case may
be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5. Paying
Agent to Hold Money in Trust.
The Company shall require each Paying Agent other
than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities,
and will notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as
Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Company, the Trustee shall serve as Paying
Agent for the Securities.
Section 2.6. Securityholder
Lists.
The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of
Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee
at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form
and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.
Section 2.7. Transfer
and Exchange.
Where Securities of a Series are presented
to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met.
To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s request. No service
charge shall be made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Neither the Company nor the Registrar shall be
required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at the opening
of business fifteen days immediately preceding the sending of a notice of redemption of Securities of that Series selected for redemption
and ending at the close of business on the day such notice is sent, or (b) to register the transfer of or exchange Securities of
any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
Section 2.8. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same Series and
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity
bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence of notice to the Company or
the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon receipt of a Company Order
the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
Upon the issuance of any new Security under this
Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 2.9. Outstanding
Securities.
The Securities outstanding at any time are all
the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions
in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as
not outstanding.
If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent (other than the Company, a
Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity of Securities of a Series money sufficient to pay
such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest
on them ceases to accrue.
The Company may purchase or otherwise acquire
the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be outstanding because
the Company or an Affiliate of the Company holds the Security (but see Section 2.10 below).
In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon a declaration of acceleration of the Maturity thereof
pursuant to Section 6.2.
Section 2.10. Treasury
Securities.
In determining whether the Holders of the required
principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver,
Securities of a Series owned by the Company or any Affiliate of the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or
waiver only Securities of a Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary
Securities.
Until definitive Securities are ready for delivery,
the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company considers appropriate for temporary Securities. Without
unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall authenticate definitive Securities
of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have
the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation.
The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered to them for
registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement
or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of the Exchange Act and the Trustee)
and deliver a certificate of such cancellation to the Company upon written request of the Company. The Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted
Interest.
If the Company defaults in a payment of interest
on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The Company shall fix
the record date and payment date. At least 10 days before the special record date, the Company shall send to the Trustee and to each Securityholder
of the Series a notice that states the special record date, the payment date and the amount of interest to be paid. The Company may
pay defaulted interest in any other lawful manner.
Section 2.14. Global
Securities.
2.14.1. Terms of Securities. A Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate shall establish whether the Securities of a Series shall be issued
in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
2.14.2. Transfer and Exchange. Notwithstanding
any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto, any Global Security shall be exchangeable
pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depositary for such Security
or its nominee only if (i) such Depositary notifies the Company that it is unwilling or unable to continue as Depositary for such
Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case,
the Company fails to appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event
or (ii) the Company executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall
be so exchangeable. Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered
in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global Security
with like tenor and terms.
Except as provided in this Section 2.14.2,
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.
2.14.3. Legends. Any Global Security issued
hereunder shall bear a legend in substantially the following form:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY,
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY.”
In addition, so long as the Depository Trust Company
(“DTC”) is the Depositary, each Global Note registered in the name of DTC or its nominee shall bear a legend in substantially
the following form:
“UNLESS THIS GLOBAL NOTE IS PRESENTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY GLOBAL NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.”
2.14.4. Acts of Holders. The Depositary,
as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5. Payments. Notwithstanding the other
provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the principal of and interest,
if any, on any Global Security shall be made to the Holder thereof.
2.14.6. Consents, Declaration and Directions.
The Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented
by a Global Security as shall be specified in a written statement of the Depositary or by the applicable procedures of such Depositary
with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given
by the Holders pursuant to this Indenture.
Section 2.15. CUSIP
Numbers.
The Company in issuing the Securities may use
“CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such
numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission
of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1. Notice
to Trustee.
The Company may, with respect to any Series of
Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities
or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities. If a Series of
Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount
of Series of Securities to be redeemed. The Company shall give the notice at least 15 days before the redemption date, unless a shorter
period is satisfactory to the Trustee.
Section 3.2. Selection
of Securities to be Redeemed.
Unless otherwise indicated for a particular Series by
a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, if less than all the Securities of a Series are
to be redeemed, the Securities of the Series to be redeemed will be selected as follows: (a) if the Securities are in the form
of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities are listed on any national securities
exchange, in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are listed,
or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems fair and appropriate,
including by lot or other method, unless otherwise required by law or applicable stock exchange requirements, subject, in the case of
Global Securities, to the applicable rules and procedures of the Depositary. The Securities to be redeemed shall be selected from
Securities of the Series outstanding not previously called for redemption. Portions of the principal of Securities of the Series that
have denominations larger than $1,000 may be selected for redemption. Securities of the Series and portions of them it selected for
redemption shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other
denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and the authorized integral multiples
thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities
of that Series called for redemption.
Section 3.3. Notice
of Redemption.
Unless otherwise indicated for a particular Series by
Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but not more than 60 days before
a redemption date, the Company shall send or cause to be sent by first-class mail or electronically, in accordance with the procedures
of the Depositary, a notice of redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities of the
Series to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) if any Securities are being redeemed
in part, the portion of the principal amount of such Securities to be redeemed and that, after the redemption date and upon surrender
of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original Security shall be issued
in the name of the Holder thereof upon cancellation of the original Security;
(e) that Securities of the Series called
for redemption must be surrendered to the Paying Agent to collect the redemption price;
(f) that interest on Securities of the Series called
for redemption ceases to accrue on and after the redemption date unless the Company defaults in the deposit of the redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may be required
by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request, the Trustee shall
give the notice of redemption in the Company’s name and at its expense, provided, however, that the Company has delivered to the
Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the notice date, an Officer’s Certificate
requesting that the Trustee give such notice and setting forth the information to be stated in such notice.
Section 3.4. Effect
of Notice of Redemption.
Once notice of redemption is sent as provided
in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption
price. Except as otherwise provided in the supplemental indenture, Board Resolution or Officer’s Certificate for a Series, a notice
of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued
interest to the redemption date.
Section 3.5. Deposit
of Redemption Price.
On or before 11:00 a.m., New York City time, on
the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date.
Section 3.6. Securities
Redeemed in Part.
Upon surrender of a Security that is redeemed
in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1. Payment
of Principal and Interest.
The Company covenants and agrees for the benefit
of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities
of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m., New York City time, on
the applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and interest, if
any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
Section 4.2. SEC
Reports.
To the extent any Securities of a Series are
outstanding, the Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and
of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and documents filed with the SEC via
the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information and documents
to the Trustee under this Section 4.2 are for informational purposes only and the Trustee’s receipt of the foregoing shall
not constitute constructive or actual notice of any information contained therein or determinable from information contained therein,
including the Company’s compliance with any of their covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officer’s Certificates).
Section 4.3. Compliance
Certificate.
To the extent any Securities of a Series are
outstanding, the Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, an Officer’s
Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled
its obligations under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her
knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have
occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
Section 4.4. Stay,
Extension and Usury Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
ARTICLE V.
SUCCESSORS
Section 5.1. When
Company May Merge, Etc.
The Company shall not consolidate with or merge
with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a “successor
person”) unless:
(a) the Company is the surviving corporation
or the successor person (if other than the Company) is a corporation organized and validly existing under the laws of any U.S. domestic
jurisdiction and expressly assumes the Company’s obligations on the Securities and under this Indenture; and
(b) immediately after giving effect to the
transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior
to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of Counsel stating
that the proposed transaction and any supplemental indenture comply with this Indenture.
Notwithstanding the above, any Subsidiary of the
Company may consolidate with, merge into or transfer all or part of its properties to the Company. Neither an Officer’s Certificate
nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor
Corporation Substituted.
Upon any consolidation or merger, or any sale,
lease, conveyance or other disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the
successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance
or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor person has been named as the Company herein; provided, however, that
the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations
and covenants under this Indenture and the Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events
of Default.
“Event of Default,” wherever
used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution,
supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event of
Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior
to 11:00 a.m., New York City time, on the 30th day of such period); or
(b) default in the payment of principal of
any Security of that Series at its Maturity; or
(c) default in the performance or breach
of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to paragraphs (a) or (b) above or
pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other
than that Series), which default continues uncured for a period of 60 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding
Securities of that Series a written notice specifying such default or breach and requiring it to be remedied and stating that such
notice is a “Notice of Default” hereunder; or
(d) the Company pursuant to or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for
relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit
of its creditors, or
(v) generally is unable to pay its debts
as the same become due; or
(e) a court of competent jurisdiction enters
an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in
an involuntary case,
(ii) appoints a Custodian of the Company
or for all or substantially all of its property, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days;
or
(f) any other Event of Default provided with
respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture hereto or an Officer’s
Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy Law” means
title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
The Company will provide the Trustee written notice
of any Default or Event of Default within 30 days of becoming aware of the occurrence of such Default or Event of Default, which notice
will describe in reasonable detail the status of such Default or Event of Default and what action the Company is taking or proposes to
take in respect thereof.
Section 6.2. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities
of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d) or
(e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of the outstanding Securities of that
Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal
amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any, on all of the Securities of that
Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon
any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(d) or (e) shall occur, the principal amount (or specified
amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration
with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of that Series,
by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if all Events of Default
with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which
have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 6.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any
interest on any Security when such interest becomes due and payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal
of any Security at the Maturity thereof, or
(c) default is made in the deposit of any
sinking fund payment, if any, when and as due by the terms of a Security,
then,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities for principal and interest and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal and any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the compensation, reasonable
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection
of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the same against the Company
or any other obligor upon such Securities and collect the moneys adjudged or deemed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any Securities
of any Series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such Series by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee
May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or
any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal and interest owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for the compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or
other property payable or deliverable on any such claims and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due
it for the compensation, reasonable expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts
due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
Section 6.5. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment of the compensation, reasonable expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. Application
of Money Collected.
Any money or property collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money or property on account of principal or interest, upon presentation of the Securities and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee
under Section 7.7; and
Second: To the payment of the amounts then due
and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and interest,
respectively; and
Third: To the Company.
Section 6.7. Limitation
on Suits.
No Holder of any Security of any Series shall
have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of not less than 25% in principal
amount of the outstanding Securities of that Series shall have made written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to
the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by the
Trustee in compliance with such request;
(d) the Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the outstanding Securities
of that Series;
it being understood, intended and expressly covenanted by the Holder
of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any manner whatever
by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders,
or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture,
except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable Series.
Section 6.8. Unconditional
Right of Holders to Receive Principal and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest,
if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of
redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9. Restoration
of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 6.10. Rights
and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing
at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not, to the extent
permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay
or Omission Not Waiver.
No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 6.12. Control
by Holders.
The Holders of a majority in principal amount
of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of
such Series, provided that
(a) such direction shall not be in conflict
with any rule of law or with this Indenture,
(b) the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction,
(c) subject to the provisions of Section 7.1,
the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer
of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability, and
(d) prior to taking any action as directed
under this Section 6.12, the Trustee shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver
of Past Defaults.
The Holders of not less than a majority in principal
amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series, by written
notice to the Trustee and the Company, waive any past Default hereunder with respect to such Series and its consequences, except
a Default in the payment of the principal of or interest on any Security of such Series (provided, however, that the Holders of a
majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including
any related payment default that resulted from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking
for Costs.
All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the outstanding Securities of any Series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Maturity of such Security,
including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties
of Trustee.
(a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill
in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b) Except during the continuance of an Event
of Default:
(i) The Trustee need perform only those duties
that are specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon Officer’s
Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in
the case of any such Officer’s Certificates or Opinions of Counsel which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine such Officer’s Certificates and Opinions of Counsel to determine whether or
not they conform to the form requirements of this Indenture.
(c) The Trustee may not be relieved from
liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect
of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining
the pertinent facts.
(iii) The Trustee shall not be liable with
respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance
with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the
time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with Section 6.12.
(d) Every provision of this Indenture that
in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any
duty or exercise any right or power unless it receives indemnity satisfactory to it against the costs, expenses and liabilities which
might be incurred by it in performing such duty or exercising such right or power.
(f) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall
require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the
exercise of any of its rights or powers, if adequate indemnity against such risk is not assured to the Trustee in its satisfaction.
(h) The Paying Agent, the Registrar and any
authenticating agent shall be entitled to the protections and immunities as are set forth in paragraphs (e), (f) and (g) of
this Section and in Section 7.2, each with respect to the Trustee.
Section 7.2. Rights
of Trustee.
(a) The Trustee may rely on and shall be
protected in acting or refraining from acting upon any document (whether in its original or facsimile form) believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from
acting, it may require an Officer’s Certificate or an Opinion of Counsel or both. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and
shall not be responsible for the misconduct or negligence of any agent appointed with due care. No Depositary shall be deemed an agent
of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable for any
action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers, provided that the Trustee’s
conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel
and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder without willful misconduct or negligence, and in reliance thereon.
(f) The Trustee shall be under no obligation
to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction.
(g) The Trustee shall not be bound to make
any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed to have
notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice
of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities generally or the Securities of a particular Series and this Indenture.
(i) In no event shall the Trustee be liable
to any person for special, punitive, indirect, consequential or incidental loss or damage of any kind whatsoever (including but not limited
to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The permissive right of the Trustee to
take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so.
Section 7.3. Individual
Rights of Trustee.
The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights
it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. Trustee’s
Disclaimer.
The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Company’s use of the proceeds from
the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.
Section 7.5. Notice
of Defaults.
If a Default or Event of Default occurs and is
continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee shall
send to each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs
or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default
or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if and so
long as its corporate trust committee or a committee of its Responsible Officers in good faith determines that withholding the notice
is in the interests of Securityholders of that Series.
Section 7.6. Reports
by Trustee to Holders.
Within 60 days after each [ ] commencing [ ],
[ ], the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar,
a brief report dated as of such anniversary date, in accordance with, and to the extent required under, TIA § 313.
A copy of each report at the time of its mailing
to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the Securities of that
Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed on any
national securities exchange.
Section 7.7. Compensation
and Indemnity.
The Company shall pay to the Trustee from time
to time compensation for its services as the Company and the Trustee shall from time to time agree upon in writing. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
upon request for all reasonable out of pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses
of the Trustee’s agents and counsel.
The Company shall indemnify each of the Trustee
and any predecessor Trustee (including for the cost of defending itself) against any cost, expense or liability, including taxes (other
than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph
in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of any claim
for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder,
unless and to the extent that the Company is materially prejudiced thereby. The Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have one separate counsel and the Company shall pay the reasonable fees and expenses of such counsel.
The Company need not pay for any settlement made without its consent, which consent will not be unreasonably withheld. This indemnification
shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee
through willful misconduct or negligence.
To secure the Company’s payment obligations
in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held or collected by
the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section shall survive
the termination of this Indenture.
Section 7.8. Replacement
of Trustee.
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities
of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation. The Holders of
a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying
the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or
an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge
of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within one year after the successor
Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee
to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities
of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance
of its appointment to the retiring Trustee and to the Company. Immediately after that, the retiring Trustee shall transfer all property
held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect
to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall mail a notice of its
succession to each Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the
Company’s obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to expenses
and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture
prior to such replacement.
Section 7.9. Successor
Trustee by Merger, Etc.
If the Trustee consolidates with, merges or converts
into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation without
any further act shall be the successor Trustee, subject to Section 7.10.
Section 7.10. Eligibility;
Disqualification.
This Indenture shall always have a Trustee who
satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of
at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply with TIA § 310(b).
Section 7.11. Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA § 311(a), excluding
any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to
the extent indicated.
ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction
and Discharge of Indenture.
This Indenture shall upon Company Order be discharged
with respect to the Securities of any Series and cease to be of further effect as to all Securities of such Series (except as
hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities of such Series theretofore
authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities of such Series not
theretofore delivered to the Trustee for cancellation
(1) have become due and payable by reason
of sending a notice of redemption or otherwise, or
(2) will become due and payable at their
Stated Maturity within one year, or
(3) have been called for redemption or are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, or
(4) are deemed paid and discharged pursuant
to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, shall
have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations,
which amount shall be sufficient for the purpose of paying and discharging each installment of principal (including mandatory sinking
fund or analogous payments) of and interest on all the Securities of such Series on the dates such installments of principal or interest
are due;
(b) the Company has paid or caused to be
paid all other sums payable hereunder by the Company; and
(c) the Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to
the satisfaction and discharge contemplated by this Section have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Company to the Trustee under Section 7.7, and, if money shall have been deposited with
the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall survive.
Section 8.2. Application
of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5,
all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.1, 8.3
or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited with
the Trustee pursuant to Section 8.1, 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for whose payment such money has been
deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous payments as contemplated by Sections
8.1, 8.3 or 8.4.
(b) The Company shall pay and shall indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against U.S. Government Obligations or Foreign Government Obligations
deposited pursuant to Sections 8.1, 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable
by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the
Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government Obligations or money held by it as
provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants or investment
bank expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would
have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money
were deposited or received. This provision shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government
Obligations held under this Indenture.
Section 8.3. Legal
Defeasance of Securities of any Series.
Unless this Section 8.3 is otherwise specified,
pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged
the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit referred to
in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall
no longer be in effect (and the Trustee, at the expense of the Company, shall, upon receipt of a Company Order, execute instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of
such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and
each installment of principal of and interest on the outstanding Securities of such Series on the Maturity of such principal or installment
of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on
the day on which such payments are due and payable in accordance with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.5,
2.7, 2.8, 7.7, 8.2, 8.3, 8.5 and 8.6; and
(c) the rights, powers, trusts and immunities
of the Trustee hereunder and the Company’s obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have irrevocably deposited
or caused to be deposited (except as provided in Section 8.2(c)) with the Trustee as trust funds specifically pledged as security
for and dedicated solely to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated
in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in
the opinion of a nationally recognized firm of independent public accountants or investment bank expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, on and any mandatory sinking fund
payments in respect of all the Securities of such Series on the dates such installments of principal or interest and such sinking
fund payments are due;
(e) such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or
by which it is bound;
(f) no Default or Event of Default with respect
to the Securities of such Series shall have occurred and be continuing on the date of such deposit or during the period ending on
the 91st day after such date;
(g) the Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that (i) the Company has received from, or there has
been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the
Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(i) the Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to
the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance.
Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with respect to the Securities
of any Series with any term, provision or condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 and, unless otherwise specified
therein, any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an
Officer’s Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute
a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a
supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to
Section 2.2 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the
Securities of such Series, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby;
provided that the following conditions shall have been satisfied:
(a) with reference to this Section 8.4,
the Company has irrevocably deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the Trustee
as trust funds in trust for the purpose of making the following payments specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars
and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other
than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect
thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee),
not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized
firm of independent certified public accountants or investment bank expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including mandatory sinking fund or analogous payments) of and interest on all the
Securities of such Series on the dates such installments of principal or interest are due;
(b) such deposit will not result in a breach
or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or
by which it is bound;
(c) no Default or Event of Default with respect
to the Securities of such Series shall have occurred and be continuing on the date of such deposit;
(d) the Company shall have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel to the effect that the Holders of the Securities of such Series will
not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and covenant defeasance and will be subject
to Federal income tax on the same amount and in the same manner and at the same times as would have been the case if such deposit and
covenant defeasance had not occurred;
(e) The Company shall have delivered to the
Trustee an Officer’s Certificate stating the deposit was not made by the Company with the intent of defeating, hindering, delaying
or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the
Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5. Repayment
to Company.
Subject to applicable abandoned property law,
the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal and interest
that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
the obligations of the Company under this Indenture with respect to the Securities of such Series and under the Securities of such
Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee
or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided, however, that if
the Company has made any payment of principal of or interest on any Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or Paying Agent after payment in full to the Holders.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without
Consent of Holders.
The Company and the Trustee may amend or supplement
this Indenture or the Securities of one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities
in addition to or in place of certificated Securities;
(d) to add guarantees with respect to Securities
of any Series or secure Securities of any Series;
(e) to surrender any of the Company’s
rights or powers under this Indenture;
(f) to add covenants or events of default
for the benefit of the holders of Securities of any Series;
(g) to comply with the applicable procedures
of the applicable depositary;
(h) to make any change that does not adversely
affect the rights of any Securityholder;
(i) to provide for the issuance of and establish
the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance
of appointment hereunder by a successor Trustee with respect to the Securities of one or more Series and to add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee; or
(k) to comply with requirements of the SEC
in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With
Consent of Holders.
The Company and the Trustee may enter into a supplemental
indenture with the written consent of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected
by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of
such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture
or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such Series. Except as provided
in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by notice
to the Trustee (including consents obtained in connection with a tender offer or exchange offer for the Securities of such Series) may
waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the
Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or waiver, but
it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under this section becomes
effective, the Company shall send to the Holders of Securities affected thereby, a notice briefly describing the supplemental indenture
or waiver. Any failure by the Company to send such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected,
an amendment or waiver may not:
(a) reduce the principal amount of Securities
whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time
for payment of interest (including default interest) on any Security;
(c) reduce the principal or change the Stated
Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount
Securities payable upon acceleration of the maturity thereof;
(e) waive a Default or Event of Default in
the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration of the Securities of any Series by
the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default
that resulted from such acceleration);
(f) make the principal of or interest, if
any, on any Security payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13
or 9.3 (this sentence); or
(h) waive a redemption payment with respect
to any Security, provided that such redemption is made at the Company’s option.
Section 9.4. Compliance
with Trust Indenture Act.
Every amendment to this Indenture or the Securities
of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5. Revocation
and Effect of Consents.
Until an amendment is set forth in a supplemental
indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation
of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or
portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture or the date the waiver
becomes effective.
Any amendment or waiver once effective shall bind
every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses (a) through
(h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or
required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the second immediately preceding
paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled
to give such consent or to revoke any consent previously given or take any such action, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
Section 9.6. Notation
on or Exchange of Securities.
The Company or the Trustee may place an appropriate
notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities
of that Series may issue and the Trustee shall authenticate upon receipt of a Company Order in accordance with Section 2.3 new
Securities of that Series that reflect the amendment or waiver.
Section 9.7. Trustee
Protected.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Officer’s
Certificate or an Opinion of Counsel or both complying with Section 10.4. The Trustee shall sign all supplemental indentures upon
delivery of such an Officer’s Certificate or Opinion of Counsel or both, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights, duties, liabilities or immunities under this Indenture.
ARTICLE X.
MISCELLANEOUS
Section 10.1. Section 10.1.
Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision
shall control.
Section 10.2. Notices.
Any notice or communication by the Company or
the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed
by first-class mail (registered or certified, return receipt requested), facsimile transmission, email or overnight air courier guaranteeing
next day delivery, to the others’ address:
if to the Company:
Eyenovia, Inc.
295 Madison Avenue, Suite 2400
New York, NY 10017
Attention: Chief Financial Officer
with a copy to:
Covington & Burling LLP
One International Place, Suite 1020
Boston, MA 02110
Attention: Megan Gates
if to the Trustee:
[_____]
Attention: [____]
Telephone: [____]
with a copy to:
[_____]
Attention: [____]
Telephone: [____]
The Company or the Trustee by notice to the other
may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder
shall be sent electronically or by first-class mail to his, her or its address shown on the register kept by the Registrar, in accordance
with the procedures of the Depositary. Failure to send a notice or communication to a Securityholder of any Series or any defect
in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
If a notice or communication is sent or published
in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.
If the Company sends a notice or communication
to Securityholders, it shall send a copy to the Trustee and each Agent at the same time.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder
of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for such Security (or its
designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication
by Holders with Other Holders.
Securityholders of any Series may communicate
pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and anyone else shall
have the protection of TIA § 312(c).
Section 10.4. Certificate
and Opinion as to Conditions Precedent.
Upon any request or application by the Company
to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officer’s Certificate stating
that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel stating that, in
the opinion of such counsel, all such conditions precedent have been complied with.
Section 10.5. Statements
Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall
comply with the provisions of TIA § 314(e) and shall include:
(a) a statement that the person making such
certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and
scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(d) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
Section 10.6. Rules by
Trustee and Agents.
The Trustee may make reasonable rules for
action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements
for its functions.
Section 10.7. Legal
Holidays.
A “Legal Holiday” is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8. No
Recourse Against Others.
A director, officer, employee or stockholder (past
or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by
facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be
used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed
to be their original signatures for all purposes.
Section 10.10. Governing
Law; Waiver of Jury Trial; Consent to Jurisdiction.
THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
THE COMPANY, THE TRUSTEE AND THE HOLDERS (BY
THEIR ACCEPTANCE OF THE SECURITIES) EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT
TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY.
Any legal suit, action or proceeding arising out
of or based upon this Indenture or the transactions contemplated hereby may be instituted in the federal courts of the United States of
America located in the City of New York or the courts of the State of New York in each case located in the City of New York (collectively,
the “Specified Courts”), and each party irrevocably submits to the non exclusive jurisdiction of such courts in any
such suit, action or proceeding. Service of any process, summons, notice or document by mail (to the extent allowed under any applicable
statute or rule of court) to such party’s address set forth above shall be effective service of process for any suit, action
or other proceeding brought in any such court. The Company, the Trustee and the Holders (by their acceptance of the Securities) each hereby
irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or claim any such suit, action or other proceeding has been brought in
an inconvenient forum.
Section 10.11. No
Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in
the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 10.14. Table
of Contents, Headings, Etc.
The Table of Contents, Cross Reference Table,
and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered
a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities
in a Foreign Currency.
Unless otherwise specified in a Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with respect
to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified
percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action at the time
outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one currency, then
the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking such action shall
be determined by converting any such other currency into a currency that is designated upon issuance of any particular Series of
Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate delivered
pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall be at the
spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates” section
(or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such source
as may be selected in good faith by the Company) on any date of determination. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with
any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations provided for
in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and
irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment
Currency.
The Company agrees, to the fullest extent that
it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to
convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange
used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall
not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection
(a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt,
by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected
by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day”
means any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.
Section 10.17. Force
Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software
and hardware) services, it being understood that the Trustee shall use reasonable best efforts which are consistent with accepted practices
in the banking industry to resume performance as soon as practicable under the circumstances.
Section 10.18. U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance
with Section 326 of the U.S.A. Patriot Act, the Trustee is required to obtain, verify, and record information that identifies each
person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that
they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A.
Patriot Act.
ARTICLE XI.
SINKING FUNDS
Section 11.1. Applicability
of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to Section 2.2
and except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment
provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment”
and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities of any
Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any
part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities
(1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such Securities
previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking
fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the Company pursuant to
the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional
sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such Securities have not been
previously so credited. Such Securities shall be received by the Trustee, together with an Officer’s Certificate with respect thereto,
not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption, and shall be
credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund
and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu
of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption,
except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall
from time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or
such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid
principal amount equal to the cash payment required to be released to the Company.
Section 11.3. Redemption
of Securities for Sinking Fund.
Not less than 45 days (unless otherwise indicated
in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of Securities)
prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that
Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied
by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s Certificate or supplemental indenture in respect
of a particular Series of Securities) before each such sinking fund payment date the Securities to be redeemed upon such sinking
fund payment date will be selected in the manner specified in Section 3.2 and the Company shall send or cause to be sent a notice
of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in and in accordance with
Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 3.4, 3.5 and 3.6.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed as of the day and year first above written.
| EYENOVIA, INC. |
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Exhibit 5.1
October 1, 2024
Eyenovia, Inc.
295 Madison Avenue, Suite 2400
New York, NY 10017
Ladies and Gentlemen:
We have acted as counsel to Eyenovia, Inc., a Delaware corporation
(the “Company”), in connection with the registration by the Company under the Securities Act of 1933 (the “Securities
Act”), pursuant to a Registration Statement on Form S-3 filed with the Securities and Exchange Commission (the “Commission”)
on or about the date hereof (such registration statement is herein referred to as the “Registration Statement”), of
$100,000,000 of one or more of the following securities (collectively, the “Securities”), which the Company may issue
from time to time under the Registration Statement: (i) shares of the Company’s common stock, par value $0.0001 per share (the
“Common Stock”); (ii) shares of the Company’s preferred stock, par value $0.0001 per share, to be issued
in one or more series (the “Preferred Stock”); (iii) one or more series of debt securities of the Company (the
“Debt Securities”), the terms of which will be determined by the board of directors of the Company prior to the issuance
thereof; (iv) warrants (the “Warrants”) to purchase Common Stock, Preferred Stock or Debt Securities; (v) rights
to subscribe for and to purchase Common Stock, Preferred Stock or other Securities included in the Registration Statement (the “Rights”);
and (vi) units, consisting of any combination of Common Stock, Preferred Stock, Debt Securities, Warrants or Rights, securing the
holder’s obligation to purchase the securities under the applicable stock unit agreement (the “Units”).
We have reviewed such corporate records, certificates and other documents,
and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion. We have assumed that all signatures
are genuine, that all documents submitted to us as originals are authentic and that all copies of documents submitted to us conform to
the originals.
We have assumed that, at the time of the issuance, sale and delivery
of each issue of Securities: (i) the execution, delivery and performance by the Company of any indenture, supplemental indenture,
warrant agreement, subscription agreement, rights agreement or unit agreement (collectively, the “Documents”), as applicable,
and all actions necessary for the issuance of the applicable Securities, and the forms and terms thereof, will comply with all requirements
and restrictions, if any, applicable to the Company, whether imposed by any agreement or instrument to which the Company is a party or
by which it is bound or any court or other governmental or regulatory body having jurisdiction over the Company; (ii) the Company
will have duly authorized, executed and delivered any such Document and will have duly authorized the issuance of any such Security, and
none of such authorizations will have been modified or rescinded, and there will not have occurred any change in law affecting the validity,
legally binding character and enforcement thereof; (iii) the prospectus included in the Registration Statement will describe the
Securities offered thereby or an appropriate prospectus supplement will have been prepared, delivered and filed with the Commission in
compliance with the Securities Act and the applicable rules and regulations thereunder and will describe the Securities offered thereby;
and (iv) an indenture in the form of Exhibit 4.1 to the Registration Statement and any necessary indenture supplements will
have been duly executed and delivered on behalf of the Company and a trustee qualified to act under applicable law and such indenture
will have been qualified under the Trust Indenture Act of 1939, as amended.
We have also assumed that the Securities will be offered and sold in
compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the appropriate
prospectus supplement. We have assumed further that the Documents will be governed by and construed in accordance with the laws of the
State of New York. We have further assumed that, at the time of the issuance, sale and delivery of any shares of Common Stock or Preferred
Stock, or of any other Securities which are exercisable or exchangeable for, or convertible into, Common Stock or Preferred Stock, the
Company will have a sufficient number of authorized but unissued shares of Common Stock or Preferred Stock, as the case may be, under
its certificate of incorporation. With respect to any Document executed or to be executed by any party other than the Company, we have
assumed that such party has, or will have, duly authorized, executed and delivered the Documents to which it is a party and that each
such Document is, or will be, the valid and binding obligation of such party, enforceable against it in accordance with its terms.
We have relied as to certain matters on information obtained from public
officials, officers of the Company, and other sources believed by us to be responsible.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that when, as and if:
| (1) | With respect to the shares of Common Stock: (i) the Registration Statement and any required post-effective amendments thereto
have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed
as required by such laws; (ii) all necessary corporate action has been taken by the Company to authorize the issuance and sale of
shares of Common Stock and fix or otherwise determine the consideration to be received for such shares and the terms of the offer and
sale thereof; (iii) any legally required consents, approvals, authorizations and other orders of the Commission and other regulatory
authorities have been obtained; and (iv) the shares of Common Stock have been duly issued and delivered against payment of the consideration
therefor in accordance with such corporate action and applicable law and as contemplated in the Registration Statement and the related
prospectus supplement setting forth the terms of the Common Stock and the plan of distribution, then, upon the happening of such events,
such shares of Common Stock will be validly issued, fully paid and non-assessable. |
| (2) | With respect to shares of any series of Preferred Stock: (i) the Registration Statement and any required post-effective amendments
thereto have all become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered
and filed as required by such laws; (ii) all necessary corporate action has been taken by the Company to establish the rights, preferences
and privileges of, and limitations on, such series of Preferred Stock and to authorize the issuance and sale of shares of such series
of Preferred Stock and fix or otherwise determine the consideration to be received for such shares of Preferred Stock, and the terms of
the offer and sale thereof; (iii) any legally required consents, approvals, authorizations and other orders of the Commission and
other regulatory authorities have been obtained; (iv) an appropriate certificate of designations with respect to such series of Preferred
Stock has been duly filed in accordance with applicable law; and (v) the shares of Preferred Stock have been duly issued and delivered
against payment of the consideration therefor in accordance with such corporate action and applicable law and as contemplated in the Registration
Statement and the related prospectus supplement setting forth the terms of the Preferred Stock and the plan of distribution, then, upon
the happening of such events, such shares of Preferred Stock will be validly issued, fully paid and non-assessable. |
| (3) | With respect to the Debt Securities: (i) the Registration Statement and any required post-effective amendments thereto have all
become effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required
by such laws; (ii) an indenture in the form of Exhibit 4.1 to the Registration Statement and any necessary indenture supplements
have been duly executed and delivered on behalf of the Company and a trustee qualified to act under applicable law and such indenture
has been qualified under the Trust Indenture Act of 1939, as amended; (iii) all necessary corporate action has been taken by the
Company to authorize, execute and deliver the applicable indenture and any necessary indenture supplement and to authorize the form, terms,
execution and delivery of any Debt Securities; (iv) any legally required consents, approvals, authorizations and other orders of
the Commission and other regulatory authorities have been obtained; and (v) such Debt Securities have been duly executed by the Company
and authenticated by the trustee in accordance with the applicable indenture, or any applicable indenture supplement, and have been duly
issued and delivered against payment of the consideration therefor in accordance with such corporate action and applicable law and as
contemplated in the Registration Statement and the related prospectus supplement setting forth the terms of the Debt Securities and the
plan of distribution, then, upon the happening of such events, such Debt Securities (including any Debt Securities to be issued by the
Company upon the conversion or exercise of other Securities issued by the Company pursuant to the Registration Statement) will constitute
the valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’
rights and to general equity principles. |
| (4) | With respect to the Warrants: (i) the Registration Statement and any required post-effective amendments thereto have become effective
under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required by such laws;
(ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a warrant agreement and to authorize
the form, terms, execution and delivery of any Warrants and to fix or otherwise determine the consideration to be received for such Warrants
and the terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations and other orders of the
Commission and other regulatory authorities have been obtained; (iv) any shares of Common Stock or Preferred Stock or any Debt Securities
purchasable upon the exercise of such Warrants, as applicable, have been duly and validly authorized and reserved for issuance and sale;
and (v) any warrant agreement with respect to such Warrants has been duly authorized, executed and delivered by the Company and the
warrant agent, and the Warrants have been duly executed and delivered by the Company against payment of the consideration therefor in
accordance with any applicable warrant agreement, and in accordance with such corporate action and applicable law and as contemplated
in the Registration Statement and the related prospectus supplement setting forth the terms of such Warrants and the plan of distribution,
then, upon the happening of such events, such Warrants will constitute the valid and binding obligations of the Company, enforceable against
the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (5) | With respect to the Rights: (i) the Registration Statement and any required post-effective amendments thereto all have become
effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required
by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a rights agreement
or rights certificate and to authorize the form, terms, execution and delivery of the Rights and to fix or otherwise determine the consideration
to be received for the Rights and the terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations
and other orders of the Commission and any other regulatory authorities have been obtained; (iv) any shares of Common Stock or Preferred
Stock or other Securities, as applicable, have been duly and validly authorized and, reserved for issuance and sale; and (v) any
necessary rights agreement or rights certificate has been duly authorized, executed and delivered by the Company and the rights agent,
and the Rights have been duly executed and delivered by the Company against payment of the consideration therefor in accordance with any
applicable rights agreement or rights certificate, and in accordance with such corporate action and applicable law and as contemplated
in the Registration Statement and the prospectus supplement setting forth the terms of the Rights and the plan of distribution, then,
upon the happening of such events, the Rights will constitute the valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws
of general applicability relating to or affecting creditors’ rights and to general equity principles. |
| (6) | With respect to the Units: (i) the Registration Statement and any required post-effective amendments thereto all have become
effective under the Securities Act and all prospectus supplements required by applicable law have been delivered and filed as required
by such laws; (ii) all necessary corporate action has been taken by the Company to authorize, execute and deliver a unit agreement
and to authorize the form, terms, execution and delivery of the Units and to fix or otherwise determine the consideration to be received
for the Units and the terms of the offer and sale thereof; (iii) any legally required consents, approvals, authorizations and other
orders of the Commission and any other regulatory authorities have been obtained; (iv) any shares of Common Stock or Preferred Stock,
or any Debt Securities or other Securities to be issued pursuant to such Units, have been duly and validly authorized and, with respect
to shares of Common Stock or Preferred Stock, reserved for issuance and sale; and (v) any necessary unit agreement has been duly
authorized, executed and delivered by the Company and any other party thereto, and the Units have been duly executed and delivered by
the Company against payment therefor in accordance with any applicable unit agreement, and in accordance with such corporate action and
applicable law and as contemplated in the Registration Statement and the prospectus supplement setting forth the terms of the Units and
the plan of distribution, then, upon the happening of such events, the Units will constitute the valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles. |
We express no opinion as to: (i) waivers of defenses, subrogation
and related rights, rights to trial by jury, rights to object to venue, or other rights or benefits bestowed by operation of law; (ii) releases
or waivers of unmatured claims or rights; (iii) indemnification, contribution, exculpation, or arbitration provisions, or provisions
for the non-survival of representations, to the extent they purport to indemnify any party against, or release or limit any party’s
liability for, its own breach or failure to comply with statutory obligations, or to the extent such provisions are contrary to public
policy; (iv) provisions for liquidated damages and penalties, penalty interest and interest on interest; or (v) provisions making
notices effective even if not actually received.
We are members of the bar of the State of Massachusetts and the State
of New York. We do not express any opinion herein on any laws other than the laws of the State of New York, the Delaware General Corporation
Law, and applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the Registration Statement. We also hereby consent to the reference to our firm under the heading “Legal Matters” in the
prospectus relating to the offer and sale of the Securities constituting part of the Registration Statement. In giving such consent, we
do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
| |
Very truly yours, |
| |
|
| |
/s/ Covington & Burling LLP |
Exhibit 23.2
Independent
Registered Public Accounting Firm’s Consent
We consent to the incorporation by reference
in this Registration Statement of Eyenovia, Inc. on Form S-3 of our report dated March 18, 2024, which includes an explanatory
paragraph as to the Company’s ability to continue as a going concern, with respect to our audits of the financial statements
of Eyenovia, Inc. as of December 31, 2023 and 2022 and for each of the two years in the period ended December 31, 2023, appearing in
the Annual Report on Form 10-K of Eyenovia, Inc. for the year ended December 31, 2023. We also consent to the reference to our firm under
the heading “Experts” in the Prospectus, which is part of this Registration Statement.
/s/ Marcum llp
Marcum llp
New York, NY
October 1, 2024
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Eyenovia, Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward
Securities
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Security
Type
|
|
Security
Class
Title
|
|
Fee
Calculation
or Carry
Forward
Rule
|
|
Amount
Registered(1)
|
|
Proposed
Maximum
Offering
Price Per
Unit(1)
|
|
Maximum
Aggregate
Offering
Price(1)
|
|
Fee
Rate
|
|
Amount of
Registration
Fee
|
|
Carry
Forward
Form
Type |
|
Carry
Forward
File
Number
|
|
Carry
Forward
Initial
Effective
Date |
|
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward
|
| |
| Newly
Registered Securities |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Equity |
|
Common
Stock, $0.0001 par value per share |
|
Rule
457(o) |
|
— |
|
$— |
|
$— |
|
— |
|
— |
|
—
|
|
—
|
|
—
|
|
—
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Equity |
|
Preferred
Stock, $0.0001 par value per share |
|
Rule
457(o) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
—
|
|
—
|
|
—
|
|
—
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Other |
|
Warrants |
|
Rule
457(o) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
—
|
|
—
|
|
—
|
|
—
|
| Fees
to Be Paid |
|
Debt |
|
Debt
Securities |
|
Rule
457(o) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
—
|
|
—
|
|
—
|
|
—
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
to Be Paid |
|
Other |
|
Units(2) |
|
Rule
457(o) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
—
|
|
—
|
|
—
|
|
—
|
| Fees
to Be Paid |
|
Other |
|
Rights |
|
Rule
457(o) |
|
— |
|
— |
|
— |
|
— |
|
— |
|
—
|
|
—
|
|
—
|
|
—
|
| Fees
to Be Paid |
|
Unallocated
(Universal)
Shelf
|
|
— |
|
Rule
457(o) |
|
— |
|
— |
|
$77,034,986.42 |
|
$0.0001531 |
|
$11,794.06 |
|
—
|
|
—
|
|
—
|
|
—
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Fees
Previously Paid |
|
— |
— |
— |
— |
— |
— |
— |
— |
|
—
|
|
—
|
|
—
|
|
—
|
| |
| Carry
Forward Securities |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Carry
Forward Securities |
|
Equity |
|
Common
Stock, $0.0001 par value per share |
|
Rule
415(a)(6) |
|
— |
|
|
|
$— |
|
|
|
|
|
S-3 |
|
333-261638 |
|
December
23, 2021 |
|
(3) |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Carry
Forward Securities |
|
Equity |
|
Preferred
Stock, $0.0001 par value per share |
|
Rule
415(a)(6) |
|
— |
|
|
|
— |
|
|
|
|
|
S-3 |
|
333-261638
|
|
December
23, 2021 |
|
(3) |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Carry
Forward Securities |
|
Other |
|
Warrants |
|
Rule
415(a)(6) |
|
— |
|
|
|
— |
|
|
|
|
|
S-3 |
|
333-261638 |
|
December
23, 2021 |
|
(3) |
| Carry
Forward Securities |
|
Debt |
|
Debt
Securities |
|
Rule
415(a)(6) |
|
— |
|
|
|
— |
|
|
|
|
|
S-3 |
|
333-261638 |
|
December
23, 2021 |
|
(3) |
| Carry
Forward Securities |
|
Other |
|
Units(2) |
|
Rule
415(a)(6) |
|
— |
|
|
|
— |
|
|
|
|
|
S-3 |
|
333-261638
|
|
December
23, 2021 |
|
(3) |
| Carry
Forward Securities |
|
Other |
|
Rights |
|
Rule
415(a)(6) |
|
— |
|
|
|
— |
|
|
|
|
|
S-3 |
|
333-261638
|
|
December
23, 2021 |
|
(3) |
| |
|
|
|
|
|
|
|
|
|
|
|
|
| Carry
Forward Securities |
|
Unallocated
(Universal) Shelf |
|
— |
|
Rule
415(a)(6) |
|
— |
|
|
|
$22,965,013.58
(3) |
|
|
|
|
|
S-3 |
|
333-261638 |
|
December
23, 2021 |
|
$2,128.86 |
| |
|
|
|
|
|
|
|
|
|
| |
|
Total
Offering Amounts |
|
|
|
$100,000,000 |
|
|
|
$11,794.06 |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total
Fees Previously Paid |
|
|
|
|
|
|
|
— |
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Total
Fee Offsets |
|
|
|
|
|
|
|
—
|
|
|
|
|
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
| |
|
Net
Fee Due |
|
|
|
|
|
|
|
$11,794.06 |
|
|
|
|
|
|
|
|
| (1) | An indeterminate number or aggregate principal amount, as applicable, of securities of each identified class is being registered as
may from time to time be offered under this registration statement at indeterminate prices, including an indeterminate number or amount
of securities that may be issued upon the exercise, settlement, exchange or conversion of securities offered hereunder, which together
shall have an aggregate initial offering price not to exceed $100,000,000. Separate consideration may or may not be received for securities
that are issuable upon conversion of, or in exchange for, or upon exercise of, convertible or exchangeable securities. Pursuant to Rule
416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any
additional securities of the registrant that may become issuable by reason of any stock split, stock dividend or similar transaction or
anti-dilution adjustments. |
| (2) | Each unit will represent an interest in one or more other securities registered under this registration statement, which may or may
not be separable from one another. |
| |
(3) |
The Carry Forward Securities consist of $22,965,013.58 of unsold securities (the “Unsold Securities”) previously registered under the registrant’s Registration Statement on Form S-3 (File No. 333-261638), which was declared effective on December 23, 2021 (the “Prior Registration Statement”). Pursuant to Rule 457(o) under the Securities Act, in connection with the filing of the Prior Registration Statement, the registrant paid a filing fee of $2,128.86 associated with the offering of the Unsold Securities. Pursuant to Rule 415(a)(6) under the Securities Act, the Unsold Securities are being moved to this registration statement and the previously paid registration fee (calculated with the filing fee rate in effect at the time of filing of the Prior Registration Statement) will continue to apply to such Unsold Securities, and no additional filing fee is due with respect to the Unsold Securities in connection with the filing of this registration statement. Pursuant to Rule 415(a)(6), the offering of the Unsold Securities under the Prior Registration Statement will be deemed terminated upon the effectiveness of this registration statement and prior to such time the registrant may continue to offer and sell securities under the Prior Registration Statement pursuant to Rule 415(a)(5) under the Securities Act. |
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