Form 8-K - Current report

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): June 12, 2024

 

 

EYENOVIA, INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

Delaware		001-38365		47-1178401
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

 

295 Madison Avenue, Suite 2400, New York, NY 10017

(Address of Principal Executive Offices, and Zip Code)

 

[phone]

Registrant’s Telephone Number, Including Area Code 

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

(Title of each class)		(Trading Symbol)		(Name of each exchange on which registered)
Common stock, par value $0.0001 per share		EYEN		The Nasdaq Stock Market (Nasdaq Capital Market)

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).

 

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 13(a) of the Exchange Act. ¨

 

 

 

 

 

 

Item 3.03.

Material Modification to Right of Security Holders.

 

On June 12, 2024, Eyenovia, Inc. (“Eyenovia”) filed a certificate of amendment to its Third Amended and Restated Certificate of Incorporation, as amended (the “Charter Amendment”) with the Secretary of State of Delaware to increase the total number of shares of common stock, par value $0.0001 per share, that Eyenovia will have authority to issue from 90,000,000 shares to 300,000,000 shares.

 

The foregoing description of the Charter Amendment does not purport to be complete and is qualified in its entirety by reference to Exhibit 3.1, which is incorporated herein by reference.

 

Item 5.07.

Submission of Matters to a Vote of Security Holders.

 

The 2024 Annual Meeting of Stockholders (the “Annual Meeting”) of Eyenovia was held in a virtual format on June 12, 2024 at 10:00 AM EDT. Of Eyenovia’s 50,957,869 shares of common stock issued and eligible to vote as of the record date of April 16, 2024, a quorum of 29,150,513 shares, or approximately 57.20% of the eligible shares, was present virtually or represented by proxy at the Annual Meeting. The actions set forth below were taken at the Annual Meeting. Each of the matters set forth below is described in detail in Eyenovia’s definitive proxy statement on Schedule 14A related to the Annual Meeting, filed on May 3, 2024.

 

1. Election of the following directors of Eyenovia, to serve one-year terms expiring in 2025 or until their successors have been elected and qualified.

 

Nominee		Shares Voted For				Shares Voted to Withhold Authority				Broker Non-Votes
Tsontcho Ianchulev, M.D., M.P.H			12,869,660				668,480				15,612,373
Michael Geltzeiler			12,834,087				704,053				15,612,373
Rachel Jacobson			12,245,524				1,292,616				15,612,373
Charles E. Mather IV			12,219,189				1,318,951				15,612,373
Ram Palanki, Pharm.D.			12,680,408				857,732				15,612,373
Michael Rowe			12,800,958				737,182				15,612,373
Ellen Strahlman, M.D.			12,808,982				729,158				15,612,373

 

2. Ratification of the appointment of Marcum LLP as Eyenovia’s independent registered public accounting firm for the fiscal year ending December 31, 2024.

 

Shares Voted For				Shares Voted Against				Shares Abstaining				Broker Non-Votes
	27,980,022				897,793				272,698				0

 

3. Approval, on an advisory basis, of the compensation of Eyenovia’s named executive officers.

 

Shares Voted For				Shares Voted Against				Shares Abstaining				Broker Non-votes
	12,152,261				1,188,271				197,608				15,612,373

 

4. Recommendation, on an advisory basis, of the preferred frequency of future stockholder advisory votes on the compensation of Eyenovia’s named executive officers.

 

1 Year				2 Years				3 Years				Shares Abstaining				Broker Non-votes
	12,834,147				239,676				172,326				291,991				15,612,373

 

 

 

 

The Board of Directors of Eyenovia (the “Board”) had recommended a vote for holding future stockholder advisory votes on the compensation of Eyenovia’s named executive officers on an annual basis. In light of the voting result, Eyenovia has determined to hold such future stockholder advisory votes on an annual basis until the next advisory vote on the frequency of stockholder advisory votes on compensation of named executive officers, which is required to occur no later than Eyenovia’s 2030 Annual Meeting of Stockholders.

 

5. Approval of an amendment to Eyenovia’s Third Amended and Restated Certificate of Incorporation, as amended, to, at the discretion of the Board, increase the number of shares of common stock authorized for issuance thereunder from 90,000,000 shares to 300,000,000 shares.

 

Shares Voted For				Shares Voted Against				Shares Abstaining				Broker Non-votes
	19,587,343				6,891,522				2,671,648				15,612,373

 

Item 9.01.

Financial Statements and Exhibits.

 

(d)

Exhibits

 

Exhibit No.		Description
3.1		Certificate of Amendment of Third Amended and Restated Certificate of Incorporation of Eyenovia, Inc.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	EYENOVIA, INC.
Date: June 14, 2024	/s/ John Gandolfo
	John Gandolfo
	Chief Financial Officer

 

 

 

 

Exhibit 3.1

 

CERTIFICATE OF AMENDMENT
OF THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF EYENOVIA, INC.

 

(Pursuant to Section 242 of the
General Corporation Law of the State of Delaware)

 

Eyenovia, Inc. (the “Corporation”), a corporation duly organized and existing under the General Corporation Law of the State of Delaware (the “General Corporation Law”), does hereby certify that:

 

1.

The name of the Corporation is Eyenovia, Inc.

 

2.

The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on July 23, 2014. An Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on October 10, 2014, and was further amended on October 6, 2016. A Second Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on July 31, 2017. A Third Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on January 29, 2018 and was further amended on June 12, 2018.

 

3.

A resolution was duly adopted by the Board of Directors of the Corporation pursuant to Section 242 of the General Corporation Law proposing this Amendment of Third Amended and Restated Certificate of Incorporation, as amended, and declaring the advisability of this Amendment of Third Amended and Restated Certificate of Incorporation, as amended, and authorizing the appropriate officers of the Corporation to solicit the approval of the stockholders therefor, which resolution setting forth the proposed amendment is as follows:

 

RESOLVED: that Section 4.1 of the Third Amended and Restated Certificate of Incorporation of the Corporation, as amended, be and it hereby is, deleted in its entirety and the following paragraph is inserted in lieu thereof:

 

“Section 4.1 Authorized Capital Stock.   The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 306,000,000 shares, consisting of 300,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), and 6,000,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”).”

 

4.

This Certificate of Amendment of Third Amended and Restated Certificate of Incorporation, as amended, has been duly adopted by the stockholders of the Corporation in accordance with the provisions of Section 242 of the General Corporation Law.

 

 

 

 

IN WITNESS WHEREOF, this Corporation has caused this Certificate of Amendment of Third Amended and Restated Certificate of Incorporation, as amended, to be signed by its Chief Executive Officer this 12^th day of June, 2024.

 

	EYENOVIA, INC.
	By:	/s/ Michael Rowe
	Name:	Michael Rowe
	Title:	Chief Executive Officer

 

 

 

Cover	Jun. 12, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jun. 12, 2024
Entity File Number	001-38365
Entity Registrant Name	EYENOVIA, INC.
Entity Central Index Key	0001682639
Entity Tax Identification Number	47-1178401
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	295 Madison Avenue
Entity Address, Address Line Two	Suite 2400
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10017
City Area Code	833
Local Phone Number	393-6684
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common stock, par value $0.0001 per share
Trading Symbol	EYEN
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

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