Filed Pursuant to Rule 424(b)(5)
Registration No. 333-231204
PROSPECTUS SUPPLEMENT
(To Prospectus dated May 13, 2019)
4,668,844 Shares of Common Stock
We are offering up to 4,668,844 shares of our
common stock, par value $0.01 per share, which we refer to as our common stock, to several institutional investors pursuant to this prospectus
supplement and the accompanying prospectus and a securities purchase agreement with such investors.
In a concurrent private placement, we are selling
to the purchasers of shares of our common stock offered under this prospectus supplement warrants to purchase up to an aggregate of 2,334,422
shares of our common stock purchased by such investor in this offering (collectively, the “Warrants”). The Warrants and the
shares of our common stock issuable upon the exercise of the Warrants are not being registered under the Securities Act of 1933, as amended,
(the “Securities Act”), are not being offered pursuant to this prospectus supplement and the accompanying prospectus and are
being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated thereunder.
Our common stock is listed on The Nasdaq Capital
Market under the symbol “EYEG.” The Warrants being issued in the concurrent private placement are not listed on any securities
exchange and we do not expect to list the Warrants. On August 6, 2021, the closing price for our common stock, as reported on The Nasdaq
Capital Market, was $2.24 per share.
As of the date of this prospectus supplement,
the aggregate market value of our outstanding voting common stock held by non-affiliates, based upon a closing sale price of our common
stock of $4.74 per share on June 14, 2021, was approximately $32.85 million. We have not offered any securities pursuant to General Instruction
I.B.6 of Form S-3 during the 12 calendar month period that ends on, and includes, the date of this prospectus supplement (but excluding
this offering). Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration
statement of which this prospectus supplement is a part in a primary offering with a value exceeding more than one-third of the aggregate
market value of the voting and non-voting common equity in any 12 calendar month period so long as our public float remains below $75
million.
We retained H.C. Wainwright & Co., LLC as
our exclusive placement agent to use its reasonable best efforts to solicit offers to arrange for the sale of the common stock offered
by this prospectus supplement. The placement agent has no obligation to buy any of the shares of common stock from us or to arrange for
the purchase or sale of any specific number or dollar amount of the shares of common stock pursuant to this prospectus supplement or the
accompanying prospectus, nor are we requiring any minimum purchase or sale of any specific number of shares of common stock.
Investing in our securities involves a high
degree of risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors” contained
in this prospectus supplement beginning on page S-6, and under similar headings in the other documents that are incorporated by reference
into this prospectus supplement.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS SUPPLEMENT IS ACCURATE,
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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Per Share of Common Stock
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Total (2)
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Offering price
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$
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2.3025
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$
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10,750,013.31
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Placement agent fees (1)
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$
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0.1612
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$
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752,500.93
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Proceeds to us (before expenses)
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$
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2.1413
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$
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9,997,512.38
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(1)
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We have also agreed to (i) issue to the placement agent (or its designees) warrants to purchase shares of common stock as described under “Plan of Distribution” on page S-13 of this prospectus supplement, (ii) pay the placement agent a management fee equal to 1.0% of the gross proceeds of this offering and (iii) pay non-accountable expenses of the placement agent in the amount of $75,000. For additional information about the compensation to be paid to the placement agent, see “Plan of Distribution.”
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(2)
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The amount of the offering proceeds to us presented
in this table does not give effect to any exercise of the Warrants being issued in the concurrent private placement.
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We expect that delivery of shares of the common stock being offered
pursuant to this prospectus supplement and the accompanying prospectus will be made on or about August 11, 2021.
H.C. Wainwright & Co.
Prospectus Supplement dated August 9, 2021.
Table of Contents
You should rely only on the information contained
in or incorporated by reference in this prospectus supplement, the accompanying prospectus and in any free writing prospectus that we
have authorized for use in connection with this offering. We have not, and the placement agent has not, authorized anyone to provide you
with different information. If anyone provides you with different or inconsistent information, you should not rely on it. We are not,
and the placement agent is not, making an offer to sell these securities in any jurisdiction where the offer or sale is not permitted.
You should assume that the information in this prospectus supplement, the accompanying prospectus, the documents incorporated by reference
in this prospectus supplement and the accompanying prospectus, and in any free writing prospectus that we have authorized for use in connection
with this offering, is accurate only as of the date of those respective documents. Our business, financial condition, results of operations
and prospects may have changed since those dates. You should read this prospectus supplement, the accompanying prospectus, the documents
incorporated by reference in this prospectus supplement and the accompanying prospectus, and any free writing prospectus that we have
authorized for use in connection with this offering, in their entirety before making an investment decision. You should also read and
consider the information in the documents to which we have referred you in the section of this prospectus supplement entitled “Incorporation
of Certain Information by Reference” and the sections of the accompanying prospectus entitled “Incorporation of Certain Information
by Reference” and “Where You Can Find More Information.”
ABOUT THIS PROSPECTUS SUPPLEMENT
This prospectus supplement and the accompanying
prospectus form part of a registration statement on Form S-3 that we filed with the Securities and Exchange Commission, or SEC, using
a “shelf” registration process. This document contains two parts. The first part consists of this prospectus supplement, which
provides you with specific information about this offering. The second part, the accompanying prospectus, provides more general information,
some of which may not apply to this offering. Generally, when we refer only to the “prospectus,” we are referring to both
parts combined. This prospectus supplement may add, update or change information contained in the accompanying prospectus. To the extent
that any statement we make in this prospectus supplement is inconsistent with statements made in the accompanying prospectus or any documents
incorporated by reference herein or therein, the statements made in this prospectus supplement will be deemed to modify or supersede those
made in the accompanying prospectus and such documents incorporated by reference herein and therein.
This prospectus
supplement and the accompanying prospectus do not constitute an offer to sell, or a solicitation of an offer to purchase, the securities
offered by this prospectus supplement and the accompanying prospectus in any jurisdiction to or from any person to whom or from
whom it is unlawful to make such offer or solicitation of an offer in such jurisdiction.
Unless the context otherwise requires, we use
the terms “EyeGate Pharmaceuticals,” “EyeGate,” “we,” “us,” “the Company”
and “our” in this prospectus supplement to refer to EyeGate Pharmaceuticals, Inc. and its subsidiaries.
All references in this prospectus supplement to
our consolidated financial statements include, unless the context indicates otherwise, the related notes.
The industry and market data and other statistical
information contained in the documents we incorporate by reference are based on management’s own estimates, independent publications,
government publications, reports by market research firms or other published independent sources, and, in each case, are believed by management
to be reasonable estimates. Although we believe these sources are reliable, we have not independently verified the information.
The information contained in this prospectus supplement
or the accompanying prospectus is accurate only as of the date of this prospectus supplement or the accompanying prospectus, regardless
of the time of delivery of this prospectus supplement, the accompanying prospectus or of any sale of the shares. 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 supplement or the accompanying 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 and covenants should not be relied on as accurately representing
the current state of our affairs.
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PROSPECTUS SUPPLEMENT SUMMARY
The following summary highlights information contained elsewhere
in or incorporated by reference into this prospectus supplement and the accompanying prospectus. It may not contain all of the information
that is important to you. You should carefully read this prospectus supplement and the accompanying prospectus, including the documents
incorporated by reference, which are described under “Incorporation of Certain Information by Reference” in this prospectus
supplement and under “Incorporation of Certain Information by Reference” and “Where You Can Find More Information”
in the accompanying prospectus. You should also carefully consider the matters discussed in the section entitled “Risk Factors”
in this prospectus supplement, in the accompanying prospectus and in other periodic reports incorporated herein by reference.
About EyeGate Pharmaceuticals
We are a clinical-stage pharmaceutical company
developing and commercializing products for treating inflammatory and immune diseases with a focus on the eye and certain systemic diseases.
In the fourth quarter of 2020, we acquired Panoptes
Pharma Ges.m.b.H., transforming our pipeline with the addition of PP-001. PP-001, is a next-generation, non-steroidal, immuno-modulatory
and small-molecule inhibitor of Dihydroorotate Dehydrogenase (“DHODH”) with what we believe to be best-in-class picomolar
potency and a validated immune modulating mechanism designed to overcome the off-target side effects and safety issues associated with
DHODH inhibitors. PP-001 has been developed in two clinical-stage ophthalmic formulations: an intravitreal injection for inflammatory
diseases of the eye including posterior uveitis, and a novel nano carrier technology eye drop for ocular surface diseases such as conjunctivitis,
dry eye disease and others. Other administration routes are also in development and IND enabling studies are underway for conditions outside
the ocular space.
In addition, we are developing Ocular Bandage
Gel (“OBG”), a modified form of the natural polymer hyaluronic acid, designed to protect the ocular surface to permit re-epithelialization
of the cornea and improve ocular surface integrity. OBG, with unique properties that help hydrate and protect the ocular surface, is in
clinical evaluation for patients undergoing PRK surgery for corneal wound repair after refractive surgery and patients with PE as a result
of dry eye. A type-B meeting was held with the U.S. Food and Drug Administration’s (“FDA”) Center for Drug Evaluation
and Research (“CDER”) division during the first quarter of 2021 to discuss eligibility of continuing OBG clinical studies
as a drug. As a result, development of OBG has shifted from a medical device to a drug, which allows for reimbursement under Medicare
Part D.
Corporate Information
Our principal executive offices are located at
271 Waverley Oaks Road, Suite 108, Waltham, MA 02452, and our telephone number is (781) 788-8869. Our website address is www.eyegatepharma.com. Our
website and the information contained in, or accessible through, our website will not be deemed to be incorporated by reference into this
prospectus and does not constitute part of this prospectus. You should not rely on any such information in making your decision whether
to purchase our securities.
Recent Developments
Appointment of President and Chief Executive
Officer
On July 23, 2021, our Board of Directors (the
“Board”) appointed Brian M. Strem, Ph.D., as President and Chief Executive Officer of the Company, effective as of July 26,
2021 (the “Effective Date”).
Dr. Strem is a co-founder of Yellowbrick Bio LLC d/b/a Bayon Therapeutics
(“Bayon”), an ophthalmological pharmaceutical company based on a novel, light responsive small molecule platform. Dr. Strem
is a co-founder of Okogen, Inc., a development stage ophthalmic company focused on a novel therapeutic for the treatment of viral infections
of the eye, and served as its CEO from May 2015 through July 2021. Prior to founding Okogen, Dr. Strem worked at Sound Pharmaceuticals,
Inc., Allergan, Inc. and Shire, Plc, where he was responsible for business development and corporate strategy in ophthalmology, otology
and regenerative medicine. Dr. Strem began his career at Cytori Therapeutics with elevating roles within the commercial and research and
development departments.
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In connection with the appointment of Dr. Strem, Franz Obermayr, Ph.D.,
who has served as our Acting Chief Executive Officer since February 2021, resumed his prior role with us as our EVP Clinical Development,
effective as of the Effective Date.
In connection with Dr. Strem’s appointment as President and Chief
Executive Officer and pursuant to the terms of the Employment Agreement, the Board, upon the recommendation of its Nominating and Corporate
Governance Committee, increased the size of the Board from seven to eight members, and appointed Dr. Strem as a Class I director to fill
the resulting vacancy, effective as of the Effective Date, to serve in office until the 2022 annual meeting of stockholders or until his
successor is duly elected and qualified or until his earlier resignation or removal. Dr. Strem will not receive any compensation in connection
with his service as a member of the Board.
Letter of Intent
On July 22, 2021, we entered into a non-binding term sheet (the “Term
Sheet”) with Bayon. Dr. Strem is a founder of Bayon and owns approximately 28%
of its equity interests. Pursuant to the Term Sheet, we intend to negotiate and enter into a definitive agreement pursuant to which we
would acquire Bayon. There can be no assurance that a definitive agreement will be entered into or that the proposed transaction will
be consummated at all or on the terms set forth in the Term Sheet.
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THE OFFERING
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Common stock offered by us
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4,668,844 shares of common stock.
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Common stock to be outstanding after this offering
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12,619,256 shares of our common stock.
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Use of proceeds
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We intend to use the net proceeds from this offering to support our operations, including for clinical trials, for working capital and for other general corporate purposes, which will include the pursuit of our other research and development efforts and could also include the acquisition or in-license of other products, product candidates or technologies. See “Use of Proceeds” on page S-9.
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Nasdaq Capital Market Symbol
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“EYEG”
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Concurrent Private Placement
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In a concurrent private placement, we are selling
to the purchasers of our common stock offered under this prospectus supplement, warrants to purchase up to an aggregate of 2,334,422 shares
of our common stock. The warrants will be exercisable immediately upon issuance at an exercise price of $2.24 per share and will expire
on the five and one-half year anniversary of the date that the warrants initially become exercisable. The warrants and the shares of our
common stock issuable upon the exercise of the warrants, are not being offered pursuant to this prospectus supplement and the accompanying
prospectus and are being offered pursuant to the exemption provided in Section 4(a)(2) under the Securities Act and Rule 506(b) promulgated
thereunder. See “Private Placement of Warrants.”
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Risk Factors
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This investment involves a high degree of risk. See the information contained in or incorporated by reference under “Risk Factors” beginning on page S-6 of this prospectus supplement and in the documents incorporated by reference into this prospectus supplement.
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The number of shares of our common stock to be
outstanding after this offering is based on 7,950,412 shares of our common stock outstanding as of August 9, 2021, and excludes as of
such date:
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471,084 shares of common stock issuable upon exercise of options outstanding under our 2005 Equity Incentive Plan and 2014 Equity Incentive Plan, at a weighted-average exercise price of approximately $12.82 per share;
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4,247,384 shares of our common stock issuable
upon the exercise of outstanding warrants to purchase shares of our common stock with a weighted-average exercise price of $7.27 per share;
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13,000 shares of our common stock issuable upon the conversion of outstanding shares of Series D Convertible Preferred Stock;
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170,191 shares of common stock reserved for future issuance under our 2014 Equity Incentive Plan;
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7,806 shares of common stock reserved under our 2014 Employee Stock Purchase Plan; and
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2,334,422 shares of common stock issuable upon the exercise of the warrants to be issued in the concurrent private placement, at an exercise price of $2.24 per share, see “Private Placement of Warrants”; and
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233,442 shares of common stock issuable
upon the exercise of the warrants to be issued to the placement agent as compensation in connection with this offering, at an exercise
price of $2.8781 per share.
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RISK FACTORS
Investing in our shares of common stock involves
a high degree of risk. You should carefully consider the risks described herein and in the documents incorporated by reference in this
prospectus supplement and the accompanying prospectus, as well as other information we include or incorporate by reference into this prospectus
supplement and the accompanying prospectus, before making an investment decision. Our business, financial condition or results of operations
could be materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline
due to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents incorporated
herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could differ materially
from those anticipated in these forward-looking statements as a result of certain factors, including the risks described herein and in
the documents incorporated herein by reference, including (i) our most recent annual report on Form 10-K and quarterly reports
on Form 10-Q, each of which is on file with the SEC and is incorporated herein by reference and (ii) other documents we file with
the SEC that are deemed incorporated by reference into this prospectus.
Risks Relating to this Offering
You will experience immediate and substantial
dilution in the book value per share of the common stock you purchase.
Since the price per share of our common stock being offered is substantially
higher than the net tangible book value per share of our common stock, you will suffer substantial dilution with respect to the net tangible
book value of the common stock you purchase in this offering. Based on the offering price of $2.3025 per
share and a net tangible book value of our common stock of $205,405, or approximately $0.03 per
share, as of March 31, 2021, if you purchase shares of common stock in this offering, you will suffer immediate and substantial dilution
of approximately $1.46 per share in the net tangible book value of the common stock. In the event that you exercise the Warrants,
you will experience additional dilution to the extent that the exercise price of these Warrants is higher than the net tangible book value
per share of our common stock. If we issue additional common stock, or securities convertible into or exchangeable or exercisable
for common stock, our stockholders, including investors who purchase shares of common stock in this offering, may experience additional
dilution, and any such issuances may result in downward pressure on the price of our common stock. We may not be able to sell shares or
other shares of common stock in any other offering at a price per share that is equal to or greater 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.
See “Dilution” on page S-11 for a more detailed discussion of the dilution you will incur in connection with this offering.
We have broad discretion to determine how
to use the proceeds raised in this offering, and we may not use the proceeds effectively.
Our management will have broad discretion over
the use of proceeds from this offering, and we could spend the proceeds from this offering in ways with which you may not agree or that
do not yield a favorable return. We intend to use the net proceeds from this offering to support our operations, including for clinical
trials, for working capital and for other general corporate purposes, which will include the pursuit of our other research and development
efforts and could also include the acquisition or in-license of other products, product candidates or technologies. If we do not invest
or apply the proceeds of this offering in ways that improve our operating results, we may fail to achieve expected financial results,
which could cause our stock price to decline.
There is no public market for the warrants
to purchase shares of common stock being offered in the concurrent private placement.
There is no established public trading market
for the warrants being offered in the concurrent private placement, and we do not expect a market to develop. In addition, we do not intend
to apply to list the warrants on any national securities exchange or other nationally recognized trading system, including The Nasdaq
Capital Market. Without an active market, the liquidity of the warrants will be limited. The warrants in the concurrent private placement
will be issued in physical form.
A substantial number of shares of our common
stock may be sold in this offering, which could cause the price of our common stock to decline.
In this offering, we are selling 4,668,844 shares
of common stock. These shares of common stock represent approximately 58.7% of our outstanding common stock as of August 9, 2021
before giving effect to the sale of the shares of common stock in this offering. In addition, the investors in this offering will receive
warrants to purchase up to an aggregate of 2,334,422 shares of our common stock and the placement agent will receive unregistered warrants
to purchase up to 5% of the aggregate number of shares of common stock sold in this offering. This sale and any future sales of a substantial
number of shares of our common stock in the public market, or the perception that such sales may occur, could adversely affect the price
of our common stock on The Nasdaq Capital Market. We cannot predict the effect, if any, that market sales of those shares of common stock
or the availability of those shares of common stock for sale will have on the market price of our common stock.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement contains, and the documents
incorporated herein by reference contain, forward-looking statements that involve risks and uncertainties. The forward-looking statements
are contained principally in the sections of this prospectus supplement, the accompanying prospectus and the documents incorporated herein
and therein by reference under the captions “Prospectus Summary,” “Risk Factors,” “Management’s Discussion
and Analysis of Financial Condition and Results of Operations” and “Business.” In some cases, you can identify forward-looking
statements by terms such as “may,” “might,” “will,” “objective,” “intend,”
“should,” “seek,” “aim,” “think,” “optimistic,” “strategy,” “goals,”
“sees,” “new,” “guidance,” “future,” “continue,” “drive,” “growth,”
“long-term,” “develop,” “possible,” “emerging,” “opportunity,” “pursue,”
“could,” “can,” “would,” “expect,” “believe,” “anticipate,” “project,”
“target,” “design,” “estimate,” “predict,” “potential,” “plan”
or the negative of these terms, and similar expressions intended to identify forward-looking statements. These statements reflect our
current views with respect to future events and are based on assumptions and subject to risks and uncertainties. Given these uncertainties,
you should not place undue reliance on these forward-looking statements. Forward-looking statements include, but are not limited to, statements
about:
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the timing and success of preclinical studies and clinical trials conducted by us and our development partners;
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the ability to obtain and maintain regulatory approval of our product candidates, and the labeling for any approved products;
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the scope, progress, expansion, and costs of developing and commercializing our product candidates;
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the size and growth of the potential markets for our product candidates and the ability to serve those markets;
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our expectations regarding our expenses and revenue, the sufficiency of our cash resources and needs for additional financing;
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the rate and degree of market acceptance of any of our product candidates;
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our expectations regarding competition;
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our anticipated growth strategies;
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our ability to attract or retain key personnel;
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our ability to establish and maintain development partnerships;
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our expectations regarding federal, state and foreign regulatory requirements;
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regulatory developments in the U.S. and foreign countries;
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our ability to obtain and maintain intellectual property protection for our product candidates;
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the anticipated trends and challenges in our business and the market in which we operate;
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the impact of the evolving COVID-19 pandemic and the global response thereto; and
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our use of proceeds from this offering.
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Forward-looking statements involve known and unknown
risks, uncertainties and other factors which 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.
Any forward-looking statement made by us in this
prospectus supplement speaks only as of the date on which it is made. Except as required by law, we assume no obligation to update these
statements publicly, or to update the reasons actual results could differ materially from those anticipated in these statements, even
if new information becomes available in the future. These forward-looking statements represent our estimates and assumptions only as of
the date of this prospectus supplement
Unless required by U.S. federal securities laws,
we do not intend to update any of these forward-looking statements to reflect circumstances or events that occur after the statement is
made.
You should read this prospectus supplement, the
accompanying prospectus and the documents that we reference in this prospectus supplement and have filed as exhibits to the registration
statement, of which this prospectus supplement is a part, completely and with the understanding that our actual future results may be
materially different from what we expect. We qualify all of our forward-looking statements by these cautionary statements.
USE OF PROCEEDS
We estimate the net
proceeds from this offering will be approximately $9.75 million, after deducting placement agent fees and
our estimated offering expenses.
We intend to use any net proceeds from this offering
and the concurrent private placement, together with other available funds, to obtain additional capital to support our operations, including
for clinical trials, for working capital and for other general corporate purposes, which will include the pursuit of our other research
and development efforts and could also include the acquisition or in-license of other products, product candidates or technologies.
Pending use of the proceeds as described above,
we intend to invest the net proceeds of this offering in short-term, interest-bearing, investment-grade securities or certificates of
deposit.
The amounts and timing of our actual expenditures
will depend on numerous factors, including the progress of our clinical trials, as well as the amount of cash used in our operations.
We may find it necessary or advisable to use the net proceeds for other purposes, and we will have broad discretion in the application
of the net proceeds and investors will be relying on the judgment of our management regarding the application of the net proceeds from
this offering.
Based upon our historical and anticipated future
growth and our financial needs, we may engage in additional financings of a character and amount that we determine as the need arises.
We may raise additional capital through additional public or private financings, the incurrence of debt and other available sources.
DIVIDEND POLICY
We have never declared or paid any cash dividends
on our capital stock. We currently intend to retain future earnings, if any, and all currently available funds for use in the operation
of our business and do not anticipate paying any cash dividends in the foreseeable future. Any future determination related to our dividend
policy will be made at the discretion of our board of directors after considering our financial condition, results of operations, capital
requirements, business prospects and other factors the board of directors deems relevant, and subject to the restrictions contained in
our current or future financing instruments.
DESCRIPTION OF SECURITIES WE ARE OFFERING
We are offering up to 4,668,844 shares of common
stock pursuant to this prospectus supplement and accompanying prospectus.
General
As of the date of this prospectus supplement,
our authorized capital stock consists of 50,000,000 shares of common stock, par value $0.01 per share, and 10,000,000 shares of preferred
stock, par value $0.01 per share, of which 3,750 shares have been designated as Series A
Convertible Preferred Stock, 10,000 shares have been designated as Series B Convertible Preferred Stock, 10,000 shares have been designated
as Series C Convertible Preferred Stock and 20,000 shares have been designated as Series D Convertible Preferred Stock.
There were 7,950,412 shares of our common stock,
no shares of our Series A Convertible Preferred Stock, Series B Convertible Preferred Stock and shares of our Series C Convertible Preferred
Stock, and 46 shares of our Series D Convertible Preferred Stock (convertible into an aggregate of 13,000 shares of Common Stock) outstanding
as of August 9, 2021, assuming no exercise of outstanding options or warrants. There were approximately 59 holders of record of our common
stock as of August 9, 2021. This number does not include beneficial owners whose shares are held in street name.
As of August 9, 2021, there were 471,084 shares
of common stock subject to outstanding options and 4,247,384 shares of common stock subject to outstanding warrants.
Common Stock
The material terms and provisions of our common
stock and each other class of our securities which may qualify or limit the rights and privileges of our common stock are described under
the caption “Description of Capital Stock” in the accompanying prospectus.
Trading Symbol
Our common stock is traded on the Nasdaq Capital
Market under the symbol “EYEG.”
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is VStock Transfer, LLC.
DILUTION
If you purchase our common stock in this offering, you will experience
dilution to the extent of the difference between the amount per share paid by purchasers of shares of common stock in this offering and
our as adjusted net tangible book value per share immediately after this offering. Net tangible book value (deficit) per share is equal
to the amount of our total tangible assets, less total liabilities (other than deferred tax liabilities), divided by the number of outstanding
shares of our common stock. As of March 31, 2021, our net tangible book value was $205,405, or approximately $0.03 per share.
After giving effect to the sale of 4,668,844 shares of our common stock
at the offering price of $2.3025 per share and after deducting placement agent fees and estimated offering expenses payable by us, our
net tangible book value as of March 31, 2021 would have been approximately $9,954,467, or approximately $0.84 per share of common stock.
This represents an immediate increase in the net tangible book value of approximately $0.81 per share to existing stockholders and an
immediate dilution in net tangible book value of approximately $1.46 per share to new investors purchasing shares of common stock in this
offering. The following table illustrates this per share dilution:
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Offering price per share
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$2.3025
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Net tangible book value per share as of March 31, 2021
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$
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0.03
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Increase in net tangible book value per share after giving effect to this offering
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$
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0.81
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As adjusted net tangible book value per share after giving effect to this offering
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$0.84
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Dilution per share to new investors
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$1.46
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The number of shares of our common stock to be
outstanding after this offering is based on 7,097,912 shares of our common stock outstanding as of March 31, 2021, and excludes as of
such date:
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370,359 shares of common stock issuable upon exercise of options outstanding under our 2005 Equity Incentive Plan and 2014 Equity Incentive Plan, at a weighted-average exercise price of approximately $16.00 per share;
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4,247,384 shares of our common stock issuable upon the exercise of outstanding warrants to purchase shares of our common stock with a weighted-average exercise price of $7.27 per share;
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852,500 shares of our common stock issuable upon the conversion of outstanding shares of Series C Convertible Preferred Stock and 13,000 shares of our common stock issuable upon the conversion of outstanding shares of Series D Convertible Preferred Stock;
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69,521 shares of common stock reserved for future issuance under our 2014 Equity Incentive Plan;
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7,806 shares of common stock reserved under our
2014 Employee Stock Purchase Plan;
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2,334,422 shares
of common stock issuable upon the exercise of the warrants to be issued in the concurrent private placement, at an exercise price of $2.24
per share, see “Private Placement of Warrants”; and
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·
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233,442 shares of common stock issuable upon the
exercise of the warrants to be issued to the placement agent as compensation in connection with this offering, at an exercise price of
$2.8781 per share.
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To the extent that outstanding options or warrants
are exercised, investors purchasing our common stock in this offering will experience further dilution. In addition, we may choose to
raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current
or future operating plans. To the extent that additional capital is raised through the sale of equity or convertible debt securities,
the issuance of these securities could result in further dilution to our stockholders.
PRIVATE PLACEMENT OF WARRANTS
Concurrently with the closing of the sale of shares
of common stock in this offering, for the shares of Common Stock purchased, the purchasers will receive unregistered warrants to purchase
an aggregate of 2,334,422 shares of our common stock, at an initial exercise price equal to $2.24 per share (the “Warrants”).
Each Warrant shall be exercisable on the issuance
date and have a term of exercise equal to five and one-half years from the date on which first exercisable. Subject to limited exceptions,
a holder of Warrants will not have the right to exercise any portion of its warrants if the holder, together with its affiliates, would
beneficially own in excess of 4.99% (or 9.99% subject to the holder’s election) of the number of shares of our common stock outstanding
immediately after giving effect to such exercise.
The warrants
provide that in the event of certain enumerated fundamental transactions, each holder of warrants will have the option to require us to
purchase its warrants for the Black-Scholes value of the warrants with the same type and form of consideration that is payable in connection
with the applicable fundamental transaction. In addition, if at the time of the exercise of the warrants, there is no effective
registration statement registering, or the prospectus contained therein is not available for, the resale of the shares of common stock
underlying the warrants, then the warrant may be exercised by means of a "cashless exercise."
Such securities will be issued and sold without
registration under the Securities Act, or state securities laws, in reliance on the exemptions provided by Section 4(a)(2) of the Act
and/or Regulation D promulgated thereunder and in reliance on similar exemptions under applicable state laws. Accordingly, the investors
may exercise those warrants and sell the underlying shares only pursuant to an effective registration statement under the Securities Act
covering the resale of those shares, an exemption under Rule 144 under the Securities Act, or another applicable exemption under the Securities
Act.
PLAN OF DISTRIBUTION
Pursuant to an engagement agreement dated August
5, 2021, we have engaged H.C. Wainwright & Co., LLC, or the placement agent, to act as our exclusive placement agent in connection
with this offering of our shares of common stock pursuant to this prospectus supplement and accompanying prospectus. Under the terms of
the engagement agreement, the placement agent has agreed to be our exclusive placement agent, on a reasonable best efforts basis, in connection
with the issuance and sale by us of our shares of common stock in this takedown from our shelf registration statement. The terms of this
offering were subject to market conditions and negotiations between us, the placement agent and prospective investors. The engagement
agreement does not give rise to any commitment by the placement agent to purchase any of our shares of common stock or the private placement
warrants, and the placement agent will have no authority to bind us by virtue of the engagement agreement. Further, the placement agent
does not guarantee that it will be able to raise new capital in any prospective offering. The placement agent may engage sub-agents or
selected dealers to assist with the offering.
We have entered into a securities purchase agreement
directly with the investors in connection with this offering, and we will only sell to investors who have entered into securities purchase
agreements.
We will deliver the shares of common stock being
issued to the investors electronically. We expect to deliver the shares of our common stock being offered pursuant to this prospectus
supplement and accompanying prospectus on or about August 11, 2021, subject to satisfaction of customary closing conditions.
At closing, we have agreed to pay the placement
agent a total cash fee equal to 7% of the gross proceeds of this offering and the concurrent private placement and a management fee equal
to 1% of the gross proceeds of this offering and the concurrent private placement. We will also pay the placement agent non-accountable
expenses in the amount of $75,000 and $15,950 for clearing fees. In addition, we have agreed to issue to the placement agent warrants
to purchase up to 5% of the of the aggregate number of shares of common stock sold in this offering, or 233,442 shares. The placement
agent warrants will have an exercise price of $2.8781, or 125% of the offering price for the shares of common stock sold in this offering,
and will expire on the five-year anniversary of the commencement of sales under this offering.
We have also agreed to give the placement agent
a six-month right of first refusal to act as our sole underwriter or placement agent for any further capital raising transactions undertaken
by us and twelve-month tail period.
An associated person of the placement agent purchased an aggregate
of 325,734 shares of common stock in this offering, and warrants to purchase up to an aggregate of 162,867 shares of common stock in the
concurrent private placement, on the same terms as the investors in this offering and the concurrent private placement, for a total purchase
price of $750,002.54.
We estimate that the total expenses of the offering payable by us,
excluding the placement agent fees, will be approximately $140,000. After deducting the fees due to
the placement agent and our estimated expenses in connection with this offering, we expect the net proceeds from this offering will be
approximately $9.75 million.
The placement agent may be deemed to be an underwriter
within the meaning of Section 2(a)(11) of the Securities Act, and any commissions received by it and any profit realized on the resale
of the securities sold by it while acting as principal might be deemed to be underwriting discounts or commissions under the Securities
Act. As an underwriter, the placement agent would be required to comply with the requirements of the Securities Act and the Exchange Act,
including, without limitation, Rule 415(a)(4) under the Securities Act and Rule 10b-5 and Regulation M under the Exchange Act. These rules
and regulations may limit the timing of purchases and sales of shares of common stock by the placement agent acting as principal. Under
these rules and regulations, the placement agent:
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may not engage in any stabilization activity in connection with our securities; and
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may not bid for or purchase any of our securities or attempt to induce any person to purchase any of our securities, other than as permitted under the Exchange Act, until it has completed its participation in the distribution.
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Other Relationships
The placement agent has performed investment banking
services for us in the past, for which it has received customary fees and expenses. The placement agent may, from time to time, engage
in transactions with or perform services for us in the ordinary course of its business and may continue to receive compensation from us
for such services, but we have no present agreements with the placement agent to do so.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is VStock Transfer, LLC.
Indemnification
We have agreed to indemnify the placement agent
against certain liabilities, including liabilities under the Securities Act of 1933, or to contribute to payments the placement agent
may be required to make with respect to any of these liabilities.
Listing
Our common stock is listed on The Nasdaq Capital
Market under the symbol “EYEG”.
LEGAL MATTERS
The validity of the shares of common stock offered
hereby will be passed upon for us by Burns & Levinson LLP, Boston, Massachusetts.
EXPERTS
The consolidated balance sheets of EyeGate Pharmaceuticals,
Inc. and subsidiary as of December 31, 2020 and 2019, and the related consolidated statements of operations and comprehensive loss, stockholders’
equity (deficit), and cash flows for each of the years then ended, have been audited by EisnerAmper LLP, independent registered public
accounting firm, as stated in their report, which is incorporated herein by reference, which report includes an explanatory paragraph
about the existence of substantial doubt concerning the Company’s ability to continue as a going concern. Such financial statements
have been incorporated herein 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 information requirements
of the Exchange Act and, in accordance therewith, file annual, quarterly and special reports, proxy statements and other information with
the SEC. These documents may be accessed through the SEC’s electronic data gathering, analysis and retrieval system, or EDGAR, via
electronic means, including the SEC’s home page on the Internet (www.sec.gov).
This prospectus supplement and the accompanying
prospectus are only part of a registration statement on Form S-3 that we have filed with the SEC under the Securities Act and therefore
omit certain information contained in the registration statement. We have also filed exhibits and schedules with the registration statement
that are excluded from this prospectus supplement and the accompanying 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.
Our website is located at http://www.eyegatepharma.com.
Information contained on our website is not incorporated by reference into this prospectus and, therefore, is not part of this prospectus
supplement or the accompanying prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference
the information and reports we file with them under File No. 001-36672, which means that we can disclose important information to you
by referring you to those publicly available documents. The information incorporated by reference is an important part of this prospectus
supplement, and information that we file later with the SEC will automatically update and supersede the information already incorporated
by reference. We are incorporating by reference the documents listed below, which we have already filed with the SEC, and any future filings
we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as to any portion of any future report or document
that is not deemed filed under such provisions, until we sell all of the securities:
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Our Current Reports on Form 8-K filed with the SEC on December 21, 2020 (and the amendment thereto filed with the SEC on March 5, 2021), January 6, 2021, February 1, 2021, April 1, 2021, June 25, 2021,
July 26, 2021 and August 4, 2021; and
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The description of our common stock contained in our registration statement on Form 8-A12B filed with the SEC on July 28, 2015 and amended on July 30, 2015.
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Any statement contained in a document incorporated
or deemed to be incorporated by reference in this prospectus supplement is modified or superseded for purposes of the prospectus supplement
to the extent that a statement contained in this prospectus supplement or in any other subsequently filed document that also is or is
deemed to be incorporated by reference herein modifies or supersedes such statement.
Upon request, we will provide, without charge,
to each person, including any beneficial owner, to whom a copy of this prospectus supplement is delivered a copy of the documents incorporated
by reference into this prospectus supplement. You may request a copy of these filings, and any exhibits we have specifically incorporated
by reference as an exhibit in this prospectus supplement, at no cost by writing or telephoning us at the following address:
EyeGate Pharmaceuticals, Inc.
271 Waverley Oaks Road, Suite 108
Waltham, MA 02452
Telephone: (781) 788-8869
This prospectus supplement is part of a registration
statement we filed with the SEC. We have incorporated exhibits into the registration statement. You should read the exhibits carefully
for provisions that may be important to you.
You should rely only on the information incorporated
by reference or provided in this prospectus supplement and the accompanying prospectus. We have not authorized anyone to provide you with
different information. We are not making an offer of these securities in any state where the offer is not permitted. You should not assume
that the information in this prospectus supplement or in the documents incorporated by reference is accurate as of any date other than
the date on the front of this prospectus supplement or those documents.
PROSPECTUS
$50,000,000
EYEGATE PHARMACEUTICALS, INC.
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
We may from time to time issue, in one or more series or classes,
up to $50,000,000 in aggregate principal amount of our common stock, preferred stock, warrants, debt securities and/or units. We
may offer these securities separately or together in units. We will specify in the accompanying prospectus supplement the terms
of the securities being offered. We may sell these securities to or through underwriters and also to other purchasers or through
agents. We will set forth the names of any underwriters or agents, and any fees, conversions, or discount arrangements, in the
accompanying prospectus supplement. We may not sell any securities under this prospectus without delivery of the applicable prospectus
supplement.
You should read this document and any prospectus supplement
or amendment carefully before you invest in our securities.
Our common stock is listed on the NASDAQ Capital Market
under the symbol “EYEG.” On May 10, 2019, the closing price for our common stock, as reported on the NASDAQ Capital
Market, was $0.25 per share. The aggregate market value of our outstanding
voting common stock held by non-affiliates, based upon a closing sale price of our common stock on March 18, 2019 was
approximately $10.9 million. We have not offered any securities
pursuant to General Instruction I.B.6 of Form S-3 during the 12 calendar month period that ends on, and includes, the date of
this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this registration
statement in a public primary offering with a value exceeding more than one-third of the aggregate market value of the voting
and non-voting common equity in any 12 month period so long as our public float remains below $75 million.
Investing in our securities involves a high degree of
risk. You should review carefully the risks and uncertainties described under the heading “Risk Factors”
contained in this prospectus beginning on page 7 and any applicable prospectus supplement, and under similar
headings in the other 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 ACCURATE, TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is ,
2019.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission, or the SEC, utilizing a shelf registration process. Under the shelf registration
process, we may offer shares of our common stock and preferred stock, warrants to purchase any of such securities, debt securities
and units comprised of any such securities with a total value of up to $50,000,000 from time to time under this prospectus at prices
and on terms to be determined by market conditions at the time of offering. This prospectus provides you with a general description
of the securities we may offer. Each time we offer a type or series of securities, we will provide a prospectus supplement that
will describe the specific amounts, prices and other important terms of the securities, including, to the extent applicable:
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designation or classification;
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aggregate offering price;
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rates and times of payment of dividends or other payments, if any;
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redemption, conversion, exchange, settlement or sinking fund terms, if any;
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conversion, exchange or settlement prices or rates, if any, and, if applicable, any provisions for changes to or adjustments in the conversion, exchange or settlement prices or rates and in the securities or other property receivable upon conversion, exchange or settlement;
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restrictive covenants, if any;
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voting or other rights, if any; and
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important federal income tax considerations.
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A prospectus supplement may include a discussion of risks or
other special considerations applicable to us or the offered securities. A prospectus supplement may also add, update or change
information in this prospectus. If there is any inconsistency between the information in this prospectus and any applicable prospectus
supplement, you must rely on the information in the prospectus supplement. Please carefully read both this prospectus and any applicable
prospectus supplement together with the additional information described under the heading “Where You Can Find More Information.”
The registration statement containing this prospectus, including
exhibits to the registration statement, provides additional information about us and the securities offered under this prospectus.
The registration statement can be read at the SEC’s website (www.sec.gov). See “Where You Can Find More Information.”
We have not authorized any broker-dealer, salesperson or other
person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus
and an accompanying supplement to this prospectus. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus or an accompanying prospectus supplement. This prospectus and an accompanying supplement to this
prospectus do not constitute an offer to sell or the solicitation of an offer to buy securities, nor do this prospectus and an
accompanying supplement to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make such offer or solicitation. The information contained in this prospectus
and an accompanying prospectus supplement speaks only as of the date set forth on the applicable cover page and may not reflect
subsequent changes in our business, financial condition, results of operations and prospects even though this prospectus and any
accompanying prospectus supplement is delivered or securities are sold on a later date.
We may sell the securities directly to or through underwriters,
dealers or agents. We, and our underwriters or agents, reserve the right to accept or reject all or part of any proposed purchase
of securities. If we do offer securities through underwriters, dealers or agents, we will include in any applicable prospectus
supplement:
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the names of those underwriters, dealers or agents;
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applicable fees, discounts, and commissions to be paid to them;
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details regarding over-allotment options, if any; and
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the net proceeds to us.
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PROSPECTUS SUMMARY
The following summary highlights information contained elsewhere
in this prospectus. It may not contain all of the information that is important to you. You should read the entire prospectus carefully,
especially the discussion regarding the risks of investing in our securities under the heading “Risk Factors,” before
investing in our securities. All references to “Company” “we,” “our” or “us” refer
solely to EyeGate Pharmaceuticals, Inc. and its subsidiaries and not to the persons who manage us or sit on our Board of Directors
(the “Board”).
About EyeGate Pharmaceuticals
We are a clinical-stage specialty pharmaceutical company that
is focused on developing and commercializing products for treating diseases and disorders of the eye. We accomplish this by leveraging
our two proprietary platform technologies, crosslinked thiolated carboxymethyl hyaluronic acid (“CMHA-S”) and our iontophoresis
drug delivery system.
We are developing products using CMHA-S, a modified form of
the natural polymer hyaluronic acid, which is a gel that possesses unique physical and chemical properties such as hydrating and
healing properties when applied to the ocular surface. The ability of CMHA-S to adhere longer to the ocular surface, resist degradation
and protect the ocular surface makes it well-suited for treating various ocular surface injuries. Our first CMHA-S-based product,
the EyeGate Ocular Bandage Gel (“OBG”), has completed three trials where we announced positive topline data. OBG is
a topically-applied eye drop formulation that is being developed under the 510(k) de novo path for devices submitted for marketing
clearance to the U.S. Food and Drug Administration (“FDA”).
The CMHA-S platform is based on hyaluronic acid (“HA”),
a naturally occurring polymer that is important in many physiological processes, including wound healing, tissue homeostasis, and
joint lubrication. To create hydrogels, the HA is modified to create CMHA-S that is then cross-linked together through the thiol
groups. Some products employ disulfide cross-linking while others utilize a Polyethylene Glycol Diacrylate, or PEGDA, cross-linker.
Cross-linking slows degradation of the HA backbone and provides a matrix for incorporating therapeutic agents. Variations in the
number of thiols per molecule, the molecular weight of the polymer, the concentration of the polymer, the type of cross-linking,
and incorporation of active ingredients, provides a highly versatile platform that can be tailored to a specific application. CMHA-S
can be formulated as gels or films.
Our first CMHA-S-based product candidate, the EyeGate OBG, is
a topically-applied eye drop formulation that has completed three in-man clinical trials. We announced positive topline data from
the initial trial and follow-on trial evaluating the ability of EyeGate OBG to manage ocular surface re-epithelialization following
photorefractive keratectomy (“PRK”) surgery. We also announced positive topline data from our first clinical trial
focused on treating patients with punctate epitheliopathies (“PE”). The EyeGate OBG eye drop creates a thin, durable
and protective coating to the damaged surface of the eye, serving to facilitate and manage corneal re-epithelization. The EyeGate
OBG is intended for the protection of the ocular surface and the management of corneal epithelial wounds, defects, and epitheliopathies.
Preclinical studies suggest that the specific CMHA-S chemical
modification comprising the EyeGate OBG creates a favorable set of attributes, including prolonged retention time on the ocular
surface and a smooth continuous clear barrier without blur that can minimize mechanical lid friction, reduce repeat injury, and
mechanically protect the ocular surface, allowing for the management of corneal re-epithelization.
The gel is presently available commercially as a veterinary
device indicated for use in the management of superficial corneal ulcers. Manufactured by SentrX Animal Care and sold in the U.S.
by Bayer Animal Health as Remend® Corneal Repair, the product has been used successfully for more than five years in dogs,
cats and horses, without adverse effects. The composition of the veterinary product is identical to that of the EyeGate OBG. We
do not have the rights to the CMHA-S platform for animal health or veterinary medicine.
In addition, we have been developing EGP-437, which incorporates
a reformulated topically active corticosteroid, Dexamethasone Phosphate, that is delivered into the ocular tissues through our
proprietary innovative drug delivery system, the EyeGate® II Delivery System. EGP-437 is being developed under the 505(b)(2)
New Drug Application (“NDA”) regulatory pathway for drugs submitted for approval to the U.S. FDA, which enables an
applicant to rely, in part, on the FDA’s findings of safety and efficacy for an existing product, or published literature,
in support of its NDA.
We have been developing EGP-437 for the treatment of various
inflammatory conditions of the eye, including the treatment of ocular inflammation and pain in post-surgical cataract patients
and anterior uveitis, a debilitating form of intraocular inflammation of the anterior portion of the uvea, such as the iris and/or
ciliary body.
Corporate Information
Our principal executive offices are located at 271 Waverley
Oaks Road, Suite 108, Waltham, MA 02452, and our telephone number is (781) 788-9043. Our website address is www.eyegatepharma.com.
Our website and the information contained in, or accessible through, our website will not be deemed to be incorporated by reference
into this prospectus and does not constitute part of this prospectus. You should not rely on any such information in making your
decision whether to purchase our securities.
Recent Developments
On March 20, 2018, we received a written
notification (the “Notice Letter”) from Nasdaq indicating that we were not in compliance with Nasdaq Listing Rule 5550(a)(2),
as the closing bid price for our Common Stock was below the $1.00 per share requirement for the last 30 consecutive business days.
The Notice Letter stated that we had 180 calendar days, or until September 17, 2018 (the “Initial Compliance Period”),
to regain compliance with the minimum bid price requirement. In accordance with Nasdaq Listing Rule 5810(c)(3)(A), we can regain
compliance if the closing bid price of our Common Stock is at least $1.00 for a minimum of 10 consecutive business days.
We did not achieve compliance with the
minimum bid price requirement by the end of the Initial Compliance Period, however, and in accordance with Nasdaq Listing Rule
5810(c)(3)(A), on the last day of the Initial Compliance Period we filed for extension and were granted a second 180-day compliance
period, or until March 18, 2019, to regain compliance. Nasdaq’s determination was based on the Company having met the continued
listing requirement for market value of publicly held shares and all other applicable requirements for initial listing on The Nasdaq
Capital Market, with the exception of the Bid Price Rule, and the Company’s written notice to Nasdaq of its intention to
cure the deficiency by effecting a reverse stock split, if necessary.
On March 19, 2019, the Staff notified us by letter that, based
upon our continued non-compliance with the Bid Price Rule as of March 18, 2019, our common stock would be subject to delisting
from Nasdaq on March 28, 2019, unless we timely requested a hearing before the Nasdaq Hearings Panel (the “Panel”).
We timely requested a hearing before the Panel, which request stayed any delisting action by the Staff pending the issuance of
the Panel’s decision following the hearing and the expiration of any extension period that may be granted by the Panel.
At the hearing on May 2, 2019, we presented our plan to
evidence compliance with the Bid Price Rule and requested an extension of time within which to do so. Our common stock will
continue to trade on The Nasdaq Capital Market under the symbol “EYEG” pending the ultimate conclusion of the
hearing process. There can be no assurances that the Panel will grant our request for continued listing or that we will be
able to evidence compliance with all applicable requirements for continued listing on The Nasdaq Capital Market within any
extension of time that may be granted by the Panel.
Common Stock
As discussed below under the heading “Securities We May Offer,”
we may issue shares of our common stock from time to time. Holders of our common stock are entitled to one vote for each share
held of record on all matters submitted to a vote of shareholders; provided that holders of our common stock are not entitled to
vote on any amendment to our restated certificate of incorporation that changes the powers, preferences, rights or other terms
of one or more series of undesignated preferred stock if the holders of the affected series are entitled to vote, separately or
together, with the holders of one or more other such series, on such amendment pursuant to our restated certificate of incorporation
or Delaware General Corporation Law. Our Board currently has eight (8) members. Our restated certificate of incorporation
provides that the number of directors shall be fixed from time to time by resolution adopted by the vote of the Board. Our restated
certificate of incorporation provides that our Board shall be divided into three classes, each consisting as nearly as reasonably
may be possible of one-third of the total number of directors constituting the entire Board, with each class’s term expiring
on a staggered basis. Newly-created directorships and vacancies on our Board may only be filled by a majority of the members of
the incumbent board then in office, though less than a quorum, and not by our stockholders. Directors may be removed from office
only for cause by the affirmative vote of the holders of at least two-thirds (2/3) of all the then-outstanding shares of capital
stock entitled to vote generally on the election of directors, voting together as a single class. Holders of common stock have
no preemptive, redemption or conversion rights and are not subject to future calls or assessments. No sinking fund provisions apply
to our common stock. All outstanding shares are fully-paid and non-assessable. In the event of our liquidation, dissolution or
winding up, holders of common stock will be entitled to share ratably in the net assets legally available for distribution to stockholders
after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted
to the holders of any outstanding shares of preferred stock.
Preferred Stock
As discussed below under the heading “Securities We May
Offer,” we may issue shares of our preferred stock from time to time, in one or more series. Under our Charter, our Board
has the authority to issue, without further action by our stockholders, up to 10,000,000 shares of undesignated preferred stock
in one or more series and to fix the designations, powers, preferences and the rights of the shares of each series and any qualification,
limitations and restrictions thereon, any or all of which may be greater than the rights of our common stock.
If we issue preferred stock, we will fix the designations, powers,
preferences and the rights, and any qualification, limitations and restrictions of the shares of each series that we sell under
this prospectus and applicable prospectus supplements in the certificate of designations relating to that series. If we issue preferred
stock, we will incorporate by reference into the registration statement of which this prospectus is a part the form of any certificate
of designations that describes the terms of such series of preferred stock before the issuance thereof. We urge you to read any
prospectus supplement related to any series of preferred stock we may offer, as well as the complete certificate of designations
that contains the terms of the applicable series of preferred stock.
Warrants
As discussed below under the heading “Securities We May Offer,”
we may issue warrants for the purchase of common stock, preferred stock, debt securities and/or units (as described below) in one
or more series, from time to time. We may issue warrants independently or together with common stock and/or preferred stock, and
the warrants may be attached to or separate from those securities.
If we issue warrants, they will be evidenced by warrant agreements
or warrant certificates issued under one or more warrant agreements, which are contracts between us and an agent for the holders
of the warrants. We urge you to read any prospectus supplement related to any series of warrants we may offer, as well as the complete
warrant agreement and warrant certificate that contain the terms of the warrants. If we issue warrants, forms of warrant agreements
and warrant certificates relating to such warrants will be incorporated by reference into the registration statement of which this
prospectus is a part from other filings we would make with the SEC.
Debt Securities
As discussed below under the heading “The Securities We
May Offer,” we may issue debt securities from time to time, in one or more series, as either senior or subordinated debt
or as senior or subordinated convertible debt. Unless we give you different information in the applicable prospectus supplement,
(i) the debt securities will be unsecured, (ii) the senior debt securities will be unsubordinated obligations and will rank equally
with all of our other unsecured and unsubordinated indebtedness, and (iii) the subordinated debt securities will be subordinate
and junior in right of payment, to the extent and in the manner described in the instrument governing the debt, to all or some
portion of our indebtedness. Any convertible debt securities that we issue will be convertible into or exchangeable for our common
stock or other securities of ours. Conversion may be mandatory or at your option and would be at prescribed conversion rates.
If we issue debt securities, they will be issued under one or
more documents called indentures, which are contracts between us and a trustee for the holders of the debt securities. We urge
you to read any prospectus supplement related to the series of debt securities being offered, as well as the complete indenture
that contains the terms of the debt securities. If we issue debt securities, indentures and forms of debt securities containing
the terms of such debt securities will be incorporated by reference into the registration statement of which this prospectus is
a part from other filings we would make with the SEC.
Units
As discussed below under the heading “Securities We May Offer,”
we may issue units comprised of shares of common stock, shares of preferred stock, warrants and debt securities in any combination.
We may issue units in such amounts and in as many distinct series as we wish.
If we issue units, they will be issued under one or more unit
agreements to be entered into between us and a bank or other financial institution, as unit agent. We urge you to read any prospectus
supplement related to any series of units we may offer, as well as the complete unit agreement and unit certificate that contain
the terms of the units. If we issue units, forms of unit agreements and unit certificates relating to such units will be incorporated
by reference into the registration statement of which this prospectus is a part from other filings we would make with the SEC.
RISK FACTORS
Investing in our securities involves a high degree of risk.
You should carefully consider the risks described herein and in the documents incorporated by reference in this prospectus and
any prospectus supplement, as well as other information we include or incorporate by reference into this prospectus and any applicable
prospectus supplement, before making an investment decision. Our business, financial condition or results of operations could be
materially adversely affected by the materialization of any of these risks. The trading price of our securities could decline due
to the materialization of any of these risks, and you may lose all or part of your investment. This prospectus and the documents
incorporated herein by reference also contain forward-looking statements that involve risks and uncertainties. Actual results could
differ materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks
described herein and in the documents incorporated herein by reference, including (i) our most recent annual report on Form 10-K
which is on file with the SEC and is incorporated herein by reference and (ii) other documents we file with the SEC that are
deemed incorporated by reference into this prospectus.
We have received notices from NASDAQ
of non-compliance with its minimum bid price rules.
On March 20, 2018, we received a written
notification (the “Notice Letter”) from Nasdaq indicating that we were not in compliance with Nasdaq Listing Rule 5550(a)(2),
as the closing bid price for our Common Stock was below the $1.00 per share requirement for the last 30 consecutive business days.
The Notice Letter stated that we had 180 calendar days, or until September 17, 2018 (the “Initial Compliance Period”),
to regain compliance with the minimum bid price requirement. In accordance with Nasdaq Listing Rule 5810(c)(3)(A), we can regain
compliance if the closing bid price of our Common Stock is at least $1.00 for a minimum of 10 consecutive business days.
We did not achieve compliance with the
minimum bid price requirement by the end of the Initial Compliance Period, however, and in accordance with Nasdaq Listing Rule
5810(c)(3)(A), on the last day of the Initial Compliance Period we filed for extension and were granted a second 180-day compliance
period, or until March 18, 2019, to regain compliance. Nasdaq’s determination was based on the Company having met the continued
listing requirement for market value of publicly held shares and all other applicable requirements for initial listing on The Nasdaq
Capital Market, with the exception of the Bid Price Rule, and the Company’s written notice to Nasdaq of its intention to
cure the deficiency by effecting a reverse stock split, if necessary.
On March 19, 2019, the Staff notified us by letter
that, based upon our continued non-compliance with the Bid Price Rule as of March 18, 2019, our common stock would be subject
to delisting from Nasdaq on March 28, 2019, unless we timely requested a hearing before the Nasdaq Hearings Panel (the
“Panel”). We timely requested a hearing before the Panel, which request stayed any delisting action by the
Staff pending the issuance of the Panel’s decision following the hearing and the expiration of any extension period
that may be granted by the Panel. At the hearing on May 2, 2019, we presented our plan to evidence compliance with the Bid
Price Rule and requested an extension of time within which to do so. Our common stock will continue to trade on The Nasdaq
Capital Market under the symbol “EYEG” pending the ultimate conclusion of the hearing process. There can be no
assurances that the Panel will grant our request for continued listing or that we will be able to evidence compliance with
all applicable requirements for continued listing on The Nasdaq Capital Market within any extension of time that may be
granted by the Panel.
A delisting of our common stock would have an adverse effect
on the market liquidity of our common stock and, as a result, the market price for our common stock could become more volatile.
Further, a delisting also could make it more difficult for us to raise additional capital.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus contains, and the documents incorporated herein
by reference contain, forward-looking statements that involve risks and uncertainties. The forward-looking statements are contained
principally in the sections of this prospectus and the documents incorporated herein by reference under the captions “Prospectus
Summary,” “Risk Factors,” “Management’s Discussion and Analysis of Financial Condition and Results
of Operations” and “Business.” In some cases, you can identify forward-looking statements by terms such as “may,”
“might,” “will,” “objective,” “intend,” “should,” “seek,”
“aim,” “think,” “optimistic,” “strategy,” “goals,” “sees,”
“new,” “guidance,” “future,” “continue,” “drive,” “growth,”
“long-term,” “develop,” “possible,” “emerging,” “opportunity,” “pursue,”
“could,” “can,” “would,” “expect,” “believe,” “anticipate,”
“project,” “target,” “design,” “estimate,” “predict,” “potential,”
“plan” or the negative of these terms, and similar expressions intended to identify forward-looking statements. These
statements reflect our current views with respect to future events and are based on assumptions and subject to risks and uncertainties.
Given these uncertainties, you should not place undue reliance on these forward-looking statements. Forward-looking statements
include, but are not limited to, statements about:
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the timing and success of preclinical studies and clinical trials conducted by us and our development partners;
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the ability to obtain and maintain regulatory approval of our product candidates, and the labeling for any approved products;
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the scope, progress, expansion, and costs of developing and commercializing our product candidates;
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the size and growth of the potential markets for our product candidates and the ability to serve those markets;
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our expectations regarding our expenses and revenue, the sufficiency of our cash resources and needs for additional financing;
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the rate and degree of market acceptance of any of our product candidates;
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our expectations regarding competition;
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our anticipated growth strategies;
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our ability to attract or retain key personnel;
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our ability to establish and maintain development partnerships;
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our expectations regarding federal, state and foreign regulatory requirements;
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regulatory developments in the U.S. and foreign countries;
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our ability to obtain and maintain intellectual property protection for our product candidates;
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the anticipated trends and challenges in our business and the market in which we operate; and
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our use of proceeds from this offering.
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Forward-looking statements involve known and unknown risks,
uncertainties and other factors which 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.
Any forward-looking statement made by us in this prospectus
speaks only as of the date on which it is made. Except as required by law, we assume no obligation to update these statements publicly,
or to update the reasons actual results could differ materially from those anticipated in these statements, even if new information
becomes available in the future. These forward-looking statements represent our estimates and assumptions only as of the date of
this prospectus.
Unless required by U.S. federal securities laws, we do not intend
to update any of these forward-looking statements to reflect circumstances or events that occur after the statement is made.
You should read this prospectus and the documents that we reference
in this prospectus and have filed as exhibits to the registration statement, of which this prospectus is a part, completely and
with the understanding that our actual future results may be materially different from what we expect. We qualify all of our forward-looking
statements by these cautionary statements.
USE OF PROCEEDS
We cannot guarantee that we will receive any proceeds in connection
with this offering because we may be unable or choose not to issue and sell any securities covered by this prospectus.
Unless otherwise provided in a supplement or amendment to this
prospectus, we intend to use any net proceeds from this offering, together with other available funds to obtain additional capital
to support our operations, including for clinical trials, for working capital and for other general corporate purposes, which will
include the pursuit of our other research and development efforts and could also include the acquisition or in-license of other
products, product candidates or technologies.
Pending use of the proceeds as described above, we intend to
invest the net proceeds of this offering in short-term, interest-bearing, investment-grade securities or certificates of deposit.
The amounts and timing of our actual expenditures will depend
on numerous factors, including the progress of our clinical trials, as well as the amount of cash used in our operations. We may
find it necessary or advisable to use the net proceeds for other purposes, and we will have broad discretion in the application
of the net proceeds and investors will be relying on the judgment of our management regarding the application of the net proceeds
from this offering.
Based upon our historical and anticipated future growth and
our financial needs, we may engage in additional financings of a character and amount that we determine as the need arises. We
may raise additional capital through additional public or private financings, the incurrence of debt and other available sources.
Please see the discussion of the risks associated with our liquidity in the section “Risk Factors.”
RATIO OF FIXED CHARGES AND PREFERENCE
DIVIDENDS TO EARNINGS
Our ratio of combined fixed charges and preference dividends
to earnings for each of the five most recently completed fiscal years and any required interim periods will each be specified in
a prospectus supplement or in a document that we file with the SEC and incorporate by reference pertaining to the issuance, if
any, by us of preference securities in the future.
DIVIDEND POLICY
We have never declared or paid any cash dividends on our capital
stock. We currently intend to retain future earnings, if any, and all currently available funds for use in the operation of our
business and do not anticipate paying any cash dividends in the foreseeable future. Any future determination related to our dividend
policy will be made at the discretion of our board of directors after considering our financial condition, results of operations,
capital requirements, business prospects and other factors the board of directors deems relevant, and subject to the restrictions
contained in our current or future financing instruments.
PLAN OF DISTRIBUTION
The securities being offered may be sold in one or more transactions
at fixed prices, at prevailing market prices at the time of sale, at prices related to the prevailing market prices, at varying
prices determined at the time of sale, or at negotiated prices. These sales may be effected at various times in one or more of
the following transactions, or in other kinds of transactions:
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through underwriters for resale to the public or investors;
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transactions on the Nasdaq Capital Market or on any national securities exchange or U.S. inter-dealer system of a registered national securities association on which our common stock may be listed or quoted at the time of sale;
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in the over-the-counter market;
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in private transactions and transactions otherwise than on these exchanges or systems or in the over-the-counter market;
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in “at the market” offerings, within the meaning of Rule 415(a)(4) of the Securities Act of 1933, as amended, or the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise;
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in connection with short sales of the shares;
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by pledge to secure debt and other obligations;
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through the writing of options, whether the options are listed on an options exchange or otherwise;
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in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options;
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through a combination of any of the above transactions; or
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any other method permitted by law.
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We may sell our securities directly to one or more purchasers,
or to or through underwriters, dealers or agents or through a combination of those methods. The related prospectus supplement will
set forth the terms of each offering, including:
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the name or names of any agents, dealers, underwriters or investors who purchase the securities;
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the purchase price of the securities being offered and the proceeds we will receive from the sale;
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the amount of any compensation, discounts, commissions or fees to be received by the underwriters, dealer or agents;
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any over-allotment options under which underwriters may purchase additional securities from us;
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any discounts or concessions allowed or reallowed or paid to dealers;
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any securities exchanges on which such securities may be listed;
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the terms of any indemnification provisions, including indemnification from liabilities under the federal securities laws; and
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the nature of any transaction by an underwriter, dealer or agent during the offering that is intended to stabilize or maintain the market price of the securities.
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With respect to any “at the market” offerings, unless
we inform you otherwise in the prospectus supplement, the sales agent with respect to any such at-the-market offering will make
all sales using commercially reasonable efforts consistent with its normal trading and sales practices and applicable laws, rules
and regulations, on mutually agreeable terms between the sales agent and us. We will include in the prospectus supplement the amount
of any compensation to be received by the sales agent.
In addition, any securities covered by this prospectus that
qualify for sale pursuant to Regulation S may be sold pursuant to Regulation S rather than pursuant to this prospectus.
In connection with the sale of our securities, underwriters
may receive compensation from us or from purchasers of our securities in the form of discounts, concessions or commissions. Underwriters,
dealers and agents that participate in the distribution of our securities may be deemed to be underwriters. Discounts or commissions
they receive and any profit on their resale of our securities may be considered underwriting discounts and commissions under the
Securities Act.
In compliance with the guidelines of the Financial Industry
Regulatory Authority, or FINRA, the maximum consideration or discount to be received by any FINRA member or independent broker
dealer may not exceed eight percent (8.0%) of the aggregate amount of the securities offered to this prospectus.
We may agree to indemnify underwriters, dealers and agents who
participate in the distribution of our securities against various liabilities, including liabilities under the Securities Act.
We may also agree to contribute to payments that the underwriters, dealers or agents may be required to make in respect of these
liabilities. We may authorize dealers or other persons who act as our agents to solicit offers by various institutions to purchase
our securities from us under contracts that provide for payment and delivery on a future date. We may enter into these contracts
with commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions
and others. If we enter into these agreements concerning any series of our securities, we will indicate that in the prospectus
supplement or amendment.
In connection with an offering of our securities, underwriters
may engage in transactions that stabilize, maintain or otherwise affect the price of our securities. Specifically, underwriters
may over-allot in connection with the offering, creating a syndicate short position in our securities for their own account. In
addition, underwriters may bid for, and purchase, our securities in the open market to cover short positions or to stabilize the
price of our securities. Finally, underwriters may reclaim selling concessions allowed for distributing our securities in the offering
if the underwriters repurchase previously distributed securities in transactions to cover short positions, in stabilization transactions
or otherwise. Any of these activities may stabilize or maintain the market price of our securities above independent market levels.
Underwriters are not required to engage in any of these activities and may end any of these activities at any time. Agents and
underwriters may engage in transactions with, or perform services for, us and our affiliates in the ordinary course of business.
SECURITIES WE MAY OFFER
The descriptions of the securities contained in this prospectus,
together with the applicable prospectus supplements, summarize all the material terms and provisions of the various types of securities
that we may offer. We will describe in the applicable prospectus supplement the particular terms of the securities offered by that
prospectus supplement. If we so indicate in the applicable prospectus supplement, the terms of the securities may differ from the
terms we have summarized below. We will also include in the prospectus supplement information, where applicable, about material
United States federal income tax considerations relating to the securities and the securities exchange, if any, on which the securities
will be listed.
Description of Capital Stock
The following description of our common stock and preferred
stock, together with the additional information we include in any applicable prospectus supplements, summarizes the material terms
and provisions of the common stock and preferred stock that we may offer under this prospectus. The following description of our
capital stock does not purport to be complete and is subject to, and qualified in its entirety by, our restated certificate of
incorporation and our amended and restated bylaws, which are exhibits to the registration statement of which this prospectus forms
a part, and by applicable law. The terms of our common stock and preferred stock may also be affected by Delaware law.
General
Our authorized capital stock consists of 120,000,000 shares
of common stock, par value $0.01 per share, and 10,000,000 shares of preferred stock, par value $0.01 per share, of which 3,750
are designated as Series A Convertible Preferred Stock, 10,000 are designated as Series B Convertible Preferred Stock and 10,000
were designate as Series C Convertible Preferred Stock. The following description summarizes some of the terms of our restated
certificate of incorporation and amended and restated bylaws, but does not purport to be complete and is qualified in its entirety
by the provisions of our restated certificate of incorporation and amended and restated bylaws, copies of which have been filed
as exhibits to the registration statement of which this prospectus is a part.
There were 45,575,737 shares of our common stock (including
1,785,000 restricted shares subject to vesting conditions), no shares of our Series A Preferred Stock or Series B Preferred Stock,
and 4,092 shares of our Series C Convertible Preferred Stock (convertible into an aggregate of 12,787,500 shares of common stock)
outstanding as of May 10, 2019, assuming no exercise of outstanding options or warrants. There were approximately 49 holders of
record of our common stock as of May 10, 2019. This number does not include beneficial owners whose shares are held in street
name.
As of May 10, 2019, there were 2,777,416 shares of common
stock subject to outstanding options and 40,844,086 shares of common stock subject to outstanding warrants.
Common Stock
Voting Rights. Each holder of common stock
is entitled to one vote for each share of common stock held on all matters submitted to a vote of the stockholders, including the
election of directors. Except as otherwise provided by law or our restated certificate of incorporation or bylaws, all matters
other than the election of directors submitted to the stockholders at any meeting shall be decided by the affirmative vote of a
majority of the outstanding shares of common stock present in person or represented by proxy at the meeting and entitled to vote
thereon. Directors are elected by a plurality of the votes cast at the meeting. Our restated certificate of incorporation and amended
and restated bylaws do not provide for cumulative voting rights. Because of this, the holders of a majority of the shares of common
stock entitled to vote in any election of directors can elect all of the directors standing for election, if they should so choose.
Dividends. Subject to preferences that may
be applicable to any then outstanding preferred stock, the holders of our outstanding shares of common stock are entitled to receive
dividends, if any, as may be declared from time to time by our board of directors out of legally available funds. At present, we
have no plans to issue dividends. See the section titled “Dividend Policy”.
Liquidation. In the event of our liquidation,
dissolution or winding up, holders of common stock will be entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference
granted to the holders of any outstanding shares of preferred stock.
Other Rights and Preferences. Holders of our
common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable
to our common stock. The rights, preferences and privileges of the holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Fully Paid and Nonassessable. All of our outstanding
shares of common stock are, and the shares of common stock to be issued in this offering will be, fully paid and nonassessable.
Provisions in our restated certificate of incorporation provide
that our board of directors is authorized to issue preferred stock in one or more series, to establish the number of shares to
be included in each such series and to fix the designation, powers, preferences and rights of such shares and any qualifications,
limitations or restrictions thereof. The issuance of preferred stock may have the effect of delaying, deferring or preventing a
change in control of our company without further action by the stockholders and may adversely affect the voting and other rights
of the holders of common stock. The issuance of preferred stock with voting and conversion rights may adversely affect the voting
power of the holders of common stock, including the loss of voting control to others. At present, we have no plans to issue any
preferred stock.
Anti-Takeover Effects of Delaware Law and Our Certificate
of Incorporation and Bylaws
Some provisions of Delaware law, our restated certificate of
incorporation and our amended and restated bylaws contain provisions that 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 interests, 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 10,000,000 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 change 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 amended and restated bylaws
provide that a special meeting of stockholders may be called only by our chairman of the board or chief executive officer (or president,
if there is no chief executive officer), or by a resolution adopted by a majority of our board of directors.
Requirements for Advance Notification of Stockholder Nominations
and Proposals. Our amended and restated bylaws establish advance notice procedures with respect to stockholder proposals to
be brought before a stockholder meeting and the nomination of candidates for election as directors, other than nominations made
by or at the direction of the board of directors or a committee of the board of directors.
Elimination of Stockholder Action by Written Consent.
Our restated certificate of incorporation and amended and restated bylaws eliminate the right of stockholders to act by written
consent without a meeting.
Staggered Board. Our board of directors is divided into
three classes. The directors in each class will serve for a three-year term, one class being elected each year by our stockholders.
This system of electing and removing directors may tend to discourage a third-party from making a tender offer or otherwise attempting
to obtain control of us, because it generally makes it more difficult for stockholders to replace a majority of the directors.
Removal of Directors. Our restated certificate of incorporation
provides that no member of our board of directors may be removed from office by our stockholders except for cause and, in addition
to any other vote required by law, upon the approval of not less than two-thirds (2/3) of the total voting power of all of our
outstanding voting stock then entitled to vote in the election of directors.
Stockholders Not Entitled to Cumulative Voting. Our restated
certificate of incorporation 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 Delaware General Corporation Law, 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 provision may have an anti-takeover effect with respect to transactions not approved in advance by the board
of directors.
Amendment of Charter Provisions. The amendment of any
of the above provisions, except for the provision making it possible for our board of directors to issue preferred stock, would
require approval by holders of at least 66 2/3% of the total voting power of all of our outstanding voting stock.
The provisions of Delaware law, our restated certificate of
incorporation and our amended and restated 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 interests.
Transfer and Warrant Agent and Registrar
The transfer and warrant agent and registrar for our common
stock and warrants is VStock Transfer, LLC.
Listing
Our shares of common are quoted on The Nasdaq Capital Market
under the symbol “EYEG.”
Preferred Stock
Our Board is authorized to issue up to 10,000,000 shares of
preferred stock in one or more series without shareholder approval. Our Board may determine the rights, preferences, privileges
and restrictions, including voting rights, dividend rights, conversion rights, redemption privileges and liquidation preferences,
of each series of preferred stock.
The purpose of authorizing our Board to issue preferred stock
in one or more series and determine the number of shares in the series and its rights and preferences is to eliminate delays associated
with a shareholder vote on specific issuances. Examples of rights and preferences that the Board may fix are:
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terms of redemption; and
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liquidation preferences.
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The existence of authorized but unissued shares of preferred
stock may enable our Board to render more difficult or to discourage an attempt to obtain control of us by means of a merger, tender
offer, proxy contest or otherwise. For example, if in the due exercise of its fiduciary obligations, our Board were to determine
that a takeover proposal is not in the best interests of us or our stockholders, our Board could cause shares of preferred stock
to be issued without stockholder approval in one or more private offerings or other transactions that might dilute the voting or
other rights of the proposed acquirer, stockholder or stockholder group. The rights of holders of our common stock described
above, will be subject to, and may be adversely affected by, the rights of any preferred stock that we may designate and issue
in the future. The issuance of shares of preferred stock could decrease the amount of earnings and assets available for distribution
to holders of shares of common stock. The issuance may also adversely affect the rights and powers, including voting rights, of
these holders and may have the effect of delaying, deterring or preventing a change in control of us.
We will incorporate by reference as an exhibit to the registration
statement, which includes this prospectus, the form of any certificate of designations that describes the terms of the series of
preferred stock we are offering. This description and the applicable prospectus supplement will include:
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the title and stated value;
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the number of shares authorized;
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the liquidation preference per share;
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the dividend rate, period and payment date, and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated, and the conversion period;
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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;
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voting rights, if any, of the preferred stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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whether interests in the preferred stock will be represented by depositary shares;
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a discussion of any material United States federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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any limitations on issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
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When we issue shares of preferred stock under this prospectus,
the shares will fully be paid and nonassessable and will not have, or be subject to, any preemptive or similar rights.
Description of Warrants
The following description, together with the additional information
we may include in any applicable prospectus supplements, summarizes the material terms and provisions of the warrants that we may
offer under this prospectus and the related warrant agreements and warrant certificates. While the terms summarized below will
apply generally to any warrants that we may offer, we will describe the particular terms of any series of warrants in more detail
in the applicable prospectus supplement. If we indicate in the prospectus supplement, the terms of any warrants offered under that
prospectus supplement may differ from the terms described below. Specific warrant agreements will contain additional important
terms and provisions and will be incorporated by reference as an exhibit to the registration statement, which includes this prospectus.
General
We may issue warrants for the purchase of common stock, preferred
stock and/or debt securities in one or more series. We may issue warrants independently or together with common stock, preferred
stock and/or debt securities, and the warrants may be attached to or separate from these securities.
We will evidence each series of warrants by warrant certificates
that we will issue under a separate warrant agreement. We will enter into the warrant agreement with a warrant agent. We will indicate
the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We will describe in the applicable prospectus supplement the
terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the periods during which, and places at which, the warrants are exercisable;
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the manner of exercise;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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federal income tax consequences of holding or exercising the warrants;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
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Before exercising their warrants, holders
of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including:
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in the case of warrants to purchase debt securities, the right to receive payments of principal of, or any premium or interest on, the debt securities purchasable upon exercise or to enforce covenants in the applicable indenture; or
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in the case of warrants to purchase common stock or preferred stock, the right to receive any dividends or payments upon our liquidation, dissolution or winding up or to exercise any voting rights.
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Exercise of Warrants
Each warrant will entitle the holder to purchase the securities
that we specify in the applicable prospectus supplement at the exercise price that we describe 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 5:00 P.M. New York 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.
Holders of the warrants may exercise the warrants by delivering
the warrant certificate representing the warrants to be exercised together with specified information, and paying the required
amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth
on the reverse side of the warrant certificate and in the applicable prospectus supplement the information that the holder of the
warrant will be required to deliver to the warrant agent upon exercise.
Upon receipt of the required payment and the warrant certificate
properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in the applicable
prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants
represented by the warrant certificate are exercised, then we will issue a new warrant certificate for the remaining amount of
warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or
part of the exercise price for warrants.
Enforceability of Rights By Holders of Warrants
Each warrant agent will act solely as our agent under the applicable
warrant agreement and will not assume any obligation or relationship of agency or trust with any holder of any warrant. A single
bank or trust company may act as warrant agent for more than one issue or series of warrants. A warrant agent will have no duty
or responsibility in case of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a warrant may, without the consent
of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and
receive the securities purchasable upon exercise of, its warrants.
Description of Debt Securities
The paragraphs below describe the general terms and provisions of
the debt securities we may issue. When we offer to sell a particular series of debt securities, we will describe the specific terms
of the securities in a supplement to this prospectus, including any additional covenants or changes to existing covenants relating
to such series. The prospectus supplement also will indicate whether the general terms and provisions described in this prospectus
apply to a particular series of debt securities. You should read the actual indenture if you do not fully understand a term or
the way we use it in this prospectus.
We may offer senior or subordinated debt securities. Each series
of debt securities may have different terms. The senior debt securities will be issued under one or more senior indentures, dated
as of a date prior to such issuance, between us and the trustee identified in the applicable prospectus supplement, as amended
or supplemented from time to time. We will refer to any such indenture throughout this prospectus as the “senior indenture.”
Any subordinated debt securities will be issued under one or more separate indentures, dated as of a date prior to such issuance,
between us and the trustee identified in the applicable prospectus supplement, as amended or supplemented from time to time. We
will refer to any such indenture throughout this prospectus as the “subordinated indenture” and to the trustee under
the senior or subordinated indenture as the “trustee.” The senior indenture and the subordinated indenture are sometimes
collectively referred to in this prospectus as the “indentures.” The indentures will be subject to and governed by
the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We included copies of the forms of the indentures as exhibits
to our registration statement and they are incorporated into this prospectus by reference.
If we issue debt securities at a discount from their principal amount,
then, for purposes of calculating the aggregate initial offering price of the offered securities issued under this prospectus,
we will include only the initial offering price of the debt securities and not the principal amount of the debt securities.
We have summarized below the material provisions of the indentures
and the debt securities, or indicated which material provisions will be described in the related prospectus supplement. The prospectus
supplement relating to any particular securities offered will describe the specific terms of the securities, which may be in addition
to or different from the general terms summarized in this prospectus. Because the summary in this prospectus and in any prospectus
supplement does not contain all of the information that you may find useful, you should read the documents relating to the securities
that are described in this prospectus or in any applicable prospectus supplement. Please read “Where You Can Find More Information”
to find out how you can obtain a copy of those documents. Except as otherwise indicated, the terms of the indentures are identical.
As used under this caption, the term “debt securities” includes the debt securities being offered by this prospectus
and all other debt securities issued by us under the indentures.
General
The indentures:
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do not limit the amount of debt securities that we may issue;
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allow us to issue debt securities in one or more series;
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do not require us to issue all of the debt securities of a series at the same time;
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allow us to reopen a series to issue additional debt securities without the consent of the holders of the debt securities of
such series; and
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provide that the debt securities will be unsecured, except as may be set forth in the applicable prospectus supplement.
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Unless we give you different information in the applicable prospectus
supplement, the senior debt securities will be unsubordinated obligations and will rank equally with all of our other unsecured
and unsubordinated indebtedness. Payments on the subordinated debt securities will be subordinated to the prior payment in full
of all of our senior indebtedness, as described under “Description of Debt Securities—Subordination” and in the
applicable prospectus supplement.
Each indenture provides that we may, but need not, designate more
than one trustee under an indenture. Any trustee under an indenture may resign or be removed and a successor trustee may be appointed
to act with respect to the series of debt securities administered by the resigning or removed trustee. If two or more persons are
acting as trustee with respect to different series of debt securities, each trustee shall be a trustee of a trust under the applicable
indenture separate and apart from the trust administered by any other trustee. Except as otherwise indicated in this prospectus,
any action described in this prospectus to be taken by each trustee may be taken by each trustee with respect to, and only with
respect to, the one or more series of debt securities for which it is trustee under the applicable indenture.
The prospectus supplement for each offering will provide the following
terms, where applicable:
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the title of the debt securities and whether they are senior or subordinated;
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the aggregate principal amount of the debt securities being offered, the aggregate principal amount of the debt securities
outstanding as of the most recent practicable date and any limit on their aggregate principal amount, including the aggregate principal
amount of debt securities authorized;
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the price at which the debt securities will be issued, expressed as a percentage of the principal and, if other than the principal
amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity thereof or,
if applicable, the portion of the principal amount of such debt securities that is convertible into common stock or other securities
of EyeGate or the method by which any such portion shall be determined;
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if convertible, the terms on which such debt securities are convertible, including the initial conversion price or rate and
the conversion period and any applicable limitations on the ownership or transferability of common stock or other securities of
EyeGate received on conversion;
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the date or dates, or the method for determining the date or dates, on which the principal of the debt securities will be payable;
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the fixed or variable interest rate or rates of the debt securities, or the method by which the interest rate or rates is determined;
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the date or dates, or the method for determining the date or dates, from which interest will accrue;
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the dates on which interest will be payable;
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the record dates for interest payment dates, or the method by which such dates will be determine;
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the persons to whom interest will be payable;
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the basis upon which interest will be calculated if other than that of a 360-day year of twelve 30-day months;
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any make-whole amount, which is the amount in addition to principal and interest that is required to be paid to the holder
of a debt security as a result of any optional redemption or accelerated payment of such debt security, or the method for determining
the make-whole amount;
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the place or places where the principal of, and any premium or make-whole amount, and interest on, the debt securities will
be payable;
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where the debt securities may be surrendered for registration of transfer or conversion or exchange;
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where notices or demands to or upon us in respect of the debt securities and the applicable indenture may be served;
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the times, prices and other terms and conditions upon which we may redeem the debt securities;
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any obligation we have to redeem, repay or purchase the debt securities pursuant to any sinking fund or analogous provision
or at the option of holders of the debt securities, and the times and prices at which we must redeem, repay or purchase the debt
securities as a result of such obligation;
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the currency or currencies in which the debt securities are denominated and payable if other than United States dollars, which
may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies and the terms and conditions
relating thereto, and the manner of determining the equivalent of such foreign currency in United States dollars;
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whether the principal of, and any premium or make-whole amount, or interest on, the debt securities of the series are to be
payable, at our election or at the election of a holder, in a currency or currencies other than that in which the debt securities
are denominated or stated to be payable, and other related terms and conditions;
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whether the amount of payments of principal of, and any premium or make-whole amount, or interest on, the debt securities may
be determined according to an index, formula or other method and how such amounts will be determined;
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whether the debt securities will be in registered form, bearer form or both and (i) if in registered form, the person to whom
any interest shall be payable, if other than the person in whose name the security is registered at the close of business on the
regular record date for such interest, or (ii) if in bearer form, the manner in which, or the person to whom, any interest on the
security shall be payable if otherwise than upon presentation and surrender upon maturity;
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any restrictions applicable to the offer, sale or delivery of securities in bearer form and the terms upon which securities
in bearer form of the series may be exchanged for securities in registered form of the series and vice versa, if permitted by applicable
laws and regulations;
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whether any debt securities of the series are to be issuable initially in temporary global form and whether any debt securities
of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests
in any such permanent global security may, or shall be required to, exchange their interests for other debt securities of the series,
and the manner in which interest shall be paid;
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the identity of the depositary for securities in registered form, if such series are to be issuable as a global security;
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the date as of which any debt securities in bearer form or in temporary global form shall be dated if other than the original
issuance date of the first security of the series to be issued;
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the applicability, if any, of the defeasance and covenant defeasance provisions described in this prospectus or in the applicable
indenture;
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whether and under what circumstances we will pay any additional amounts on the debt securities in respect of any tax, assessment
or governmental charge and, if so, whether we will have the option to redeem the debt securities in lieu of making such a payment;
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whether and under what circumstances the debt securities being offered are convertible into common stock or other securities
of EyeGate, as the case may be, including the conversion price or rate and the manner or calculation thereof;
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the circumstances, if any, specified in the applicable prospectus supplement, under which beneficial owners of interests in
the global security may obtain definitive debt securities and the manner in which payments on a permanent global debt security
will be made if any debt securities are issuable in temporary or permanent global form;
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any provisions granting special rights to holders of securities upon the occurrence of such events as specified in the applicable
prospectus supplement;
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if the debt securities of such series are to be issuable in definitive form only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents or conditions;
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the name of the applicable trustee and the nature of any material relationship with us or any of our affiliates, and the percentage
of debt securities of the class necessary to require the trustee to take action;
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any deletions from, modifications of or additions to our events of default or covenants with regard to such debt securities
and any change in the right of any trustee or any of the holders to declare the principal amount of any of such debt securities
due and payable;
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applicable CUSIP numbers; and
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any other terms of such debt securities not inconsistent with the provisions of the applicable indenture.
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We may issue debt securities that provide for less than the entire
principal amount thereof to be payable upon declaration of acceleration of the maturity of the debt securities. We refer to any
such debt securities throughout this prospectus as “original issue discount securities.” The applicable prospectus
supplement will describe the United States federal income tax consequences and other relevant considerations applicable to original
issue discount securities.
We also may issue indexed debt securities. Payments of principal
of, and premium and interest on, indexed debt securities are determined with reference to the rate of exchange between the currency
or currency unit in which the debt security is denominated and any other currency or currency unit specified by us, to the relationship
between two or more currencies or currency units or by other similar methods or formulas specified in the prospectus supplement.
Except as described under “—Merger, Consolidation or
Sale of Assets” or as may be set forth in any prospectus supplement, the debt securities will not contain any provisions
that (i) would limit our ability to incur indebtedness or (ii) would afford holders of debt securities protection in the event
of (a) a highly leveraged or similar transaction involving us, or (b) a change of control or reorganization, restructuring, merger
or similar transaction involving us that may adversely affect the holders of the debt securities. In the future, we may enter into
transactions, such as the sale of all or substantially all of our assets or a merger or consolidation that may have an adverse
effect on our ability to service our indebtedness, including the debt securities, by, among other things, substantially reducing
or eliminating our assets.
Neither the Delaware General Corporation Law nor our governing instruments
define the term “substantially all” as it relates to the sale of assets. Additionally, Delaware cases interpreting
the term “substantially all” rely upon the facts and circumstances of each particular case. Consequently, to determine
whether a sale of “substantially all” of our assets has occurred, a holder of debt securities must review the financial
and other information that we have disclosed to the public.
We will provide you with more information in the applicable prospectus
supplement regarding any deletions, modifications, or additions to the events of default or covenants that are described below,
including any addition of a covenant or other provision providing event risk or similar protection.
Payment
Unless we give you different information in the applicable prospectus
supplement, the principal of, and any premium or make-whole amount, and interest on, any series of the debt securities will be
payable at the corporate trust office of the trustee. We will provide you with the address of the trustee in the applicable prospectus
supplement. We may also pay interest by mailing a check to the address of the person entitled to it as it appears in the applicable
register for the debt securities or by wire transfer of funds to that person at an account maintained within the United States.
All monies that we pay to a paying agent or a trustee for the payment
of the principal of, and any premium or make-whole amount, or interest on, any debt security will be repaid to us if unclaimed
at the end of two years after the obligation underlying payment becomes due and payable. After funds have been returned to us,
the holder of the debt security may look only to us for payment, without payment of interest for the period which we hold the funds.
Denomination, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement,
the debt securities of any series will be issuable in denominations of $1,000 and integral multiples of $1,000.
Subject to the limitations imposed upon debt securities that are
evidenced by a computerized entry in the records of a depository company rather than by physical delivery of a note, a holder of
debt securities of any series may:
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exchange them for any authorized denomination of other debt securities of the same series and of a like aggregate principal
amount and kind upon surrender of such debt securities at the corporate trust office of the applicable trustee or at the office
of any transfer agent that we designate for such purpose; and
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surrender them for registration of transfer or exchange at the corporate trust office of the applicable trustee or at the office
of any transfer agent that we designate for such purpose.
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Every debt security surrendered for registration of transfer or
exchange must be duly endorsed or accompanied by a written instrument of transfer satisfactory to the applicable trustee or transfer
agent. Payment of a service charge will not be required for any registration of transfer or exchange of any debt securities, but
we or the trustee may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
If in addition to the applicable trustee, the applicable prospectus supplement refers to any transfer agent initially designated
by us for any series of debt securities, we may at any time rescind the designation of any such transfer agent or approve a change
in the location through which any such transfer agent acts, except that we will be required to maintain a transfer agent in each
place of payment for such series. We may at any time designate additional transfer agents for any series of debt securities.
Neither we, nor any trustee, will be required to:
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issue, register the transfer of or exchange debt securities of any series during a period beginning at the opening of business
15 days before the day that the notice of redemption of any debt securities selected for redemption is mailed and ending at the
close of business on the day of such mailing;
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register the transfer of or exchange any debt security, or portion thereof, so selected for redemption, in whole or in part,
except the unredeemed portion of any debt security being redeemed in part; and
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issue, register the transfer of or exchange any debt security that has been surrendered for repayment at the option of the
holder, except the portion, if any, of such debt security not to be so repaid.
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Merger, Consolidation or Sale of Assets
The indentures provide that we may, without the consent of the holders
of any outstanding debt securities, (i) consolidate with, (ii) sell, lease or convey all or substantially all of our assets to,
or (iii) merge with or into, any other entity provided that:
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either we are the continuing entity, or the successor entity, if other than us, assumes the obligations (a) to pay the principal
of, and any premium or make-whole amount, and interest on, all of the debt securities and (b) to duly perform and observe all of
the covenants and conditions contained in each indenture;
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after giving effect to the transaction, there is no event of default under the indentures and no event which, after notice
or the lapse of time, or both, would become such an event of default, occurs and continues; and
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an officers’ certificate and legal opinion covering such conditions are delivered to each applicable trustee.
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Covenants
Existence. Except as described under “—Merger,
Consolidation or Sale of Assets,” the indentures require us to do or cause to be done all things necessary to preserve and
keep in full force and effect our existence, rights and franchises. However, the indentures do not require us to preserve any right
or franchise if we determine that any right or franchise is no longer desirable in the conduct of our business.
Payment of taxes and other claims. The indentures require
us to pay, discharge or cause to be paid or discharged, before they become delinquent (i) all taxes, assessments and governmental
charges levied or imposed on us, our subsidiaries or our or our subsidiaries’ income, profits or property, and (ii) all lawful
claims for labor, materials and supplies which, if unpaid, might by law become a lien upon our property or the property of our
subsidiaries. However, we will not be required to pay, discharge or cause to be paid or discharged any such tax, assessment, charge
or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
Provision of financial information. The indentures require
us to (i) within 15 days of each of the respective dates by which we are required to file our annual reports, quarterly reports
and other documents with the SEC, file with the trustee copies of the annual report, quarterly report and other documents that
we file with the SEC under Section 13 or 15(d) of the Exchange Act, (ii) file with the trustee and the SEC any additional information,
documents and reports regarding compliance by us with the conditions and covenants of the indentures, as required, (iii) within
30 days after the filing with the trustee, mail to all holders of debt securities, as their names and addresses appear in the applicable
register for such debt securities, without cost to such holders, summaries of any documents and reports required to be filed by
us pursuant to (i) and (ii) above, and (iv) supply, promptly upon written request and payment of the reasonable cost of duplication
and delivery, copies of such documents to any prospective holder.
Additional covenants. The applicable prospectus supplement
will set forth any additional covenants of EyeGate relating to any series of debt securities.
Events of Default, Notice and Waiver
Unless the applicable prospectus supplement states otherwise, when
we refer to “events of default” as defined in the indentures with respect to any series of debt securities, we mean:
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default in the payment of any installment of interest on any debt security of such series continuing for 30 days;
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default in the payment of principal of, or any premium or make-whole amount on, any debt security of such series for five business
days at its stated maturity;
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default in making any sinking fund payment as required for any debt security of such series for five business days;
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default in the performance or breach of any covenant or warranty in the debt securities or in the indenture by EyeGate continuing
for 60 days after written notice as provided in the applicable indenture, but not of a covenant added to the indenture solely for
the benefit of a series of debt securities issued thereunder other than such series;
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a default under any bond, debenture, note, mortgage, indenture or instrument:
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having an aggregate principal
amount of at least $30,000,000; or
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under which there may be issued, secured or evidenced any existing or later created indebtedness for money borrowed by us or our subsidiaries, if we are directly responsible or liable as obligor or guarantor,
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if the default results in the indebtedness becoming or
being declared due and payable prior to the date it otherwise would have, without such indebtedness having been discharged, or
such acceleration having been rescinded or annulled, within 30 days after notice to the issuing company specifying such default.
Such notice shall be given to us by the trustee, or to us and the trustee by the holders of at least 10% in principal amount of
the outstanding debt securities of that series. The written notice shall specify such default and require us to cause such indebtedness
to be discharged or cause such acceleration to be rescinded or annulled and shall state that such notice is a “Notice of
Default” under such indenture;
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bankruptcy, insolvency
or reorganization, or court appointment of a receiver, liquidator or trustee of EyeGate or any significant subsidiary of EyeGate;
and
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any other event of default provided with respect to a particular series of debt securities.
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When we use the term “significant subsidiary,” we refer
to the meaning ascribed to such term in Rule 1-02 of Regulation S-X promulgated under the Securities Act.
If an event of default occurs and is continuing with respect to
debt securities of any series outstanding, then the applicable trustee or the holders of 25% or more in principal amount of the
debt securities of that series will have the right to declare the principal amount of all the debt securities of that series to
be due and payable. If the debt securities of that series are original issue discount securities or indexed securities, then the
applicable trustee or the holders of 25% or more in principal amount of the debt securities of that series will have the right
to declare the portion of the principal amount as may be specified in the terms thereof to be due and payable. However, at any
time after such a declaration of acceleration has been made, but before a judgment or decree for payment of the money due has been
obtained by the applicable trustee, the holders of at least a majority in principal amount of outstanding debt securities of such
series or of all debt securities then outstanding under the applicable indenture may rescind and annul such declaration and its
consequences if:
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we have deposited with the applicable trustee all required payments of the principal, any premium or make-whole amount, interest and, to the extent permitted by law, interest on overdue installment of interest, plus applicable fees, expenses, disbursements and advances of the applicable trustee; and
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all events of default, other than the non-payment of accelerated principal, or a specified portion thereof, and any premium or make-whole amount, have been cured or waived.
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The indentures also provide that the holders of at least a majority
in principal amount of the outstanding debt securities of any series or of all debt securities then outstanding under the applicable
indenture may, on behalf of all holders, waive any past default with respect to such series and its consequences, except a default:
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in the payment of the principal, any premium or make-whole amount, or interest;
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in respect of a covenant or provision contained in the applicable indenture that cannot be modified or amended without the consent of the holders of the outstanding debt security that is affected by the default; or
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in respect of a covenant or provision for the benefit or protection of the trustee, without its express written consent.
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The indentures require each trustee to give notice to the holders
of debt securities within 90 days of a default unless such default has been cured or waived. However, the trustee may withhold
notice if specified persons of such trustee consider such withholding to be in the interest of the holders of debt securities.
The trustee may not withhold notice of a default in the payment of principal, any premium or interest on any debt security of such
series or in the payment of any sinking fund installment in respect of any debt security of such series.
The indentures provide that holders of debt securities of any series
may not institute any proceedings, judicial or otherwise, with respect to such indenture or for any remedy under the indenture,
unless the trustee fails to act for a period of 60 days after the trustee has received a written request to institute proceedings
in respect of an event of default from the holders of 25% or more in principal amount of the outstanding debt securities of such
series, as well as an offer of indemnity reasonably satisfactory to the trustee. However, this provision will not prevent any holder
of debt securities from instituting suit for the enforcement of payment of the principal of, and any premium or make-whole amount,
and interest on, such debt securities at the respective due dates thereof.
The indentures provide that, subject to provisions in each indenture
relating to its duties in the case of a default, a trustee has no obligation to exercise any of its rights or powers at the request
or direction of any holders of any series of debt securities then outstanding under the indenture, unless the holders have offered
to the trustee reasonable security or indemnity. The holders of at least a majority in principal amount of the outstanding debt
securities of any series or of all debt securities then outstanding under an indenture shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the applicable trustee, or of exercising any trust or
power conferred upon such trustee. However, a trustee may refuse to follow any direction which:
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is in conflict with any law or the applicable indenture;
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may involve the trustee in personal liability; or
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may be unduly prejudicial to the holders of debt securities of the series not joining the proceeding.
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Within 120 days after the close of each fiscal year, we will be
required to deliver to each trustee a certificate, signed by one of our several specified officers, stating whether or not that
officer has knowledge of any default under the applicable indenture. If the officer has knowledge of any default, the notice must
specify the nature and status of the default.
Modification of the Indentures
The indentures provide that modifications and amendments may be
made only with the consent of the affected holders of at least a majority in principal amount of all outstanding debt securities
issued under that indenture. However, no such modification or amendment may, without the consent of the holders of the debt securities
affected by the modification or amendment:
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change the stated maturity of the principal of, or any premium or make-whole amount on, or any installment of principal of or interest on, any such debt security;
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reduce the principal amount of, the rate or amount of interest on, or any premium or make-whole amount payable on redemption of, any such debt security;
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reduce the amount of principal of an original issue discount security that would be due and payable upon declaration of acceleration of the maturity thereof or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such debt security;
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change the place of payment or the coin or currency for payment of principal of, or any premium or make-whole amount, or interest on, any such debt security;
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impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security;
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reduce the percentage in principal amount of any outstanding debt securities necessary to modify or amend the applicable indenture with respect to such debt securities, to waive compliance with particular provisions thereof or defaults and consequences thereunder or to reduce the quorum or voting requirements set forth in the applicable indenture; and
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modify any of the foregoing provisions or any of the provisions relating to the waiver of particular past defaults or covenants, except to increase the required percentage to effect such action or to provide that some of the other provisions may not be modified or waived without the consent of the holder of such debt security.
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The holders of a majority in aggregate principal amount of the outstanding
debt securities of each series may, on behalf of all holders of debt securities of that series, waive, insofar as that series is
concerned, our compliance with material restrictive covenants of the applicable indenture.
We and our respective trustee may make modifications and amendments
of an indenture without the consent of any holder of debt securities for any of the following purposes:
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to evidence the succession of another person to us as obligor under such indenture;
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to add to our covenants for the benefit of the holders of all or any series of debt securities or to surrender any right or power conferred upon us in such indenture;
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to add events of default for the benefit of the holders of all or any series of debt securities;
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to add or change any provisions of an indenture (i) to change or eliminate restrictions on the payment of principal of, or premium or make-whole amount, or interest on, debt securities in bearer form, or (ii) to permit or facilitate the issuance of debt securities in certificated form, provided that such action shall not adversely affect the interests of the holders of the debt securities of any series in any material respect;
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to change or eliminate any provisions of an indenture, provided that any such change or elimination shall become effective only when there are no debt securities outstanding of any series created prior thereto which are entitled to the benefit of such provision;
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to secure the debt securities;
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to establish the form or terms of debt securities of any series;
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to provide for the acceptance of appointment by a successor trustee or facilitate the administration of the trusts under an indenture by more than one trustee;
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to cure any ambiguity, defect or inconsistency in an indenture, provided that such action shall not adversely affect the interests of holders of debt securities of any series issued under such indenture; and
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to supplement any of the provisions of an indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of such debt securities, provided that such action shall not adversely affect the interests of the holders of the outstanding debt securities of any series.
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Voting
The indentures provide that in determining whether the holders of
the requisite principal amount of outstanding debt securities of a series have given any request, demand, authorization, direction,
notice, consent or waiver under the indentures or whether a quorum is present at a meeting of holders of debt securities:
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the principal amount of an original issue discount security that shall be deemed to be outstanding shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon declaration of acceleration of the maturity thereof;
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the principal amount of any debt security denominated in a foreign currency that shall be deemed outstanding shall be the United States dollar equivalent, determined on the issue date for such debt security, of the principal amount or, in the case of an original issue discount security, the United States dollar equivalent on the issue date of such debt security of the amount determined as provided in the preceding bullet point;
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the principal amount of an indexed security that shall be deemed outstanding shall be the principal face amount of such indexed security at original issuance, unless otherwise provided for such indexed security under such indenture; and
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debt securities owned by us or any other obligor upon the debt securities or by any affiliate of ours or of such other obligor shall be disregarded.
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The indentures contain provisions for convening meetings of the
holders of debt securities of a series. A meeting will be permitted to be called at any time by the applicable trustee, and also,
upon request, by us or the holders of at least 25% in principal amount of the outstanding debt securities of such series, in any
such case upon notice given as provided in such indenture. Except for any consent that must be given by the holder of each debt
security affected by the modifications and amendments of an indenture described above, any resolution presented at a meeting or
adjourned meeting duly reconvened at which a quorum is present may be adopted by the affirmative vote of the holders of a majority
of the aggregate principal amount of the outstanding debt securities of that series represented at such meeting.
Notwithstanding the preceding paragraph, except as referred to above,
any resolution relating to a request, demand, authorization, direction, notice, consent, waiver or other action that may be made,
given or taken by the holders of a specified percentage, which is less than a majority of the aggregate principal amount of the
outstanding debt securities of a series, may be adopted at a meeting or adjourned meeting duly reconvened at which a quorum is
present by the affirmative vote of such specified percentage.
Any resolution passed or decision taken at any properly held meeting
of holders of debt securities of any series will be binding on all holders of such series. The quorum at any meeting called to
adopt a resolution, and at any reconvened meeting, will be persons holding or representing a majority in principal amount of the
outstanding debt securities of a series. However, if any action is to be taken relating to a consent or waiver which may be given
by the holders of at least a specified percentage in principal amount of the outstanding debt securities of a series, the persons
holding such percentage will constitute a quorum.
Notwithstanding the foregoing provisions, the indentures provide
that if any action is to be taken at a meeting with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that such indenture expressly provides may be made, given or taken by the holders of a specified percentage
in principal amount of all outstanding debt securities affected by such action, or of the holders of such series and one or more
additional series:
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there shall be no minimum quorum requirement for such meeting; and
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the principal amount of
the outstanding debt securities of such series that vote in favor of such request, demand, authorization, direction, notice, consent,
waiver or other action shall be taken account in determining whether such request, demand, authorization, direction, notice, consent,
waiver or other action has been made, given or taken under such indenture.
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Subordination
Unless otherwise provided in the applicable prospectus supplement,
subordinated debt securities will be subject to the following subordination provisions.
Upon any distribution to our creditors in a liquidation, dissolution
or reorganization, the payment of the principal of and interest on any subordinated debt securities will be subordinated to the
extent provided in the applicable indenture in right of payment to the prior payment in full of all senior debt. However, our obligation
to make payments of the principal of and interest on such subordinated debt securities otherwise will not be affected. No payment
of principal or interest will be permitted to be made on subordinated debt securities at any time if a default on senior debt exists
that permits the holders of such senior debt to accelerate its maturity and the default is the subject of judicial proceedings
or we receive notice of the default. After all senior debt is paid in full and until the subordinated debt securities are paid
in full, holders of subordinated debt securities will be subrogated to the rights of holders of senior debt to the extent that
distributions otherwise payable to holders of subordinated debt securities have been applied to the payment of senior debt. The
subordinated indenture will not restrict the amount of senior debt or other indebtedness of EyeGate and its subsidiaries. As a
result of these subordination provisions, in the event of a distribution of assets upon insolvency, holders of subordinated debt
securities may recover less, ratably, than our general creditors.
The term “senior debt” will be defined in the applicable
indenture as the principal of and interest on, or substantially similar payments to be made by us in respect of, other outstanding
indebtedness, whether outstanding at the date of execution of the applicable indenture or subsequently incurred, created or assumed.
The prospectus supplement may include a description of additional terms implementing the subordination feature.
No restrictions will be included in any indenture relating to subordinated
debt securities upon the creation of additional senior debt.
If this prospectus is being delivered in connection with the offering
of a series of subordinated debt securities, the accompanying prospectus supplement or the information incorporated in this prospectus
by reference will set forth the approximate amount of senior debt outstanding as of the end of our most recent fiscal quarter.
Discharge, Defeasance and Covenant Defeasance
Unless otherwise indicated in the applicable prospectus supplement,
the indentures allow us to discharge our obligations to holders of any series of debt securities issued under any indenture when:
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either (i) all securities of such series have already been delivered to the applicable trustee for cancellation; or (ii) all securities of such series have not already been delivered to the applicable trustee for cancellation but (a) have become due and payable, (b) will become due and payable within one year, or (c) if redeemable at our option, are to be redeemed within one year, and we have irrevocably deposited with the applicable trustee, in trust, funds in such currency or currencies, currency unit or units or composite currency or currencies in which such debt securities are payable, an amount sufficient to pay the entire indebtedness on such debt securities in respect of principal and any premium or make-whole amount, and interest to the date of such deposit if such debt securities have become due and payable or, if they have not, to the stated maturity or redemption date;
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we have paid or caused to be paid all other sums payable; and
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an officers’ certificate and an opinion of counsel stating the conditions to discharging the debt securities have been satisfied has been delivered to the trustee.
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Unless otherwise indicated in the applicable prospectus supplement,
the indentures provide that, upon our irrevocable deposit with the applicable trustee, in trust, of an amount, in such currency
or currencies, currency unit or units or composite currency or currencies in which such debt securities are payable at stated maturity,
or government obligations, or both, applicable to such debt securities, which through the scheduled payment of principal and interest
in accordance with their terms will provide money in an amount sufficient to pay the principal of, and any premium or make-whole
amount, and interest on, such debt securities, and any mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor, the issuing company may elect either:
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to defease and be discharged from any and all obligations with respect to such debt securities; or
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to be released from its obligations with respect to such debt securities under the applicable indenture or, if provided in the applicable prospectus supplement, its obligations with respect to any other covenant, and any omission to comply with such obligations shall not constitute an event of default with respect to such debt securities.
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Notwithstanding the above, we may not elect to defease and be discharged
from the obligation to pay any additional amounts upon the occurrence of particular events of tax, assessment or governmental charge
with respect to payments on such debt securities and the obligations to register the transfer or exchange of such debt securities,
to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of such
debt securities, or to hold monies for payment in trust.
The indentures only permit us to establish the trust described in
the paragraph above if, among other things, we have delivered to the applicable trustee an opinion of counsel to the effect that
the holders of such debt securities will not recognize income, gain or loss for United States federal income tax purposes as a
result of such defeasance or covenant defeasance and will be subject to United States federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such defeasance or covenant defeasance had not occurred. Such
opinion of counsel, in the case of defeasance, will be required to refer to and be based upon a ruling received from or published
by the Internal Revenue Service or a change in applicable United States federal income tax law occurring after the date of the
indenture. In the event of such defeasance, the holders of such debt securities would be able to look only to such trust fund for
payment of principal, any premium or make-whole amount, and interest.
When we use the term “government obligations,” we mean
securities that are:
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direct obligations of the United States or the government that issued the foreign currency in which the debt securities of a particular series are payable, for the payment of which its full faith and credit is pledged; or
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obligations of a person controlled or supervised by and acting as an agency or instrumentality of the United States or other government that issued the foreign currency in which the debt securities of such series are payable, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other government, which are not callable or redeemable at the option of the issuer thereof and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such government obligation or a specific payment of interest on or principal of any such government obligation held by such custodian for the account of the holder of a depository receipt. However, except as required by law, such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the government obligation or the specific payment of interest on or principal of the government obligation evidenced by such depository receipt.
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Unless otherwise provided in the applicable prospectus supplement,
if after we have deposited funds and/or government obligations to effect defeasance or covenant defeasance with respect to debt
securities of any series, (i) the holder of a debt security of such series is entitled to, and does, elect under the terms of the
applicable indenture or the terms of such debt security to receive payment in a currency, currency unit or composite currency other
than that in which such deposit has been made in respect of such debt security, or (ii) a conversion event occurs in respect of
the currency, currency unit or composite currency in which such deposit has been made, the indebtedness represented by such debt
security will be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of, and
premium or make-whole amount, and interest on, such debt security as they become due out of the proceeds yielded by converting
the amount so deposited in respect of such debt security into the currency, currency unit or composite currency in which such debt
security becomes payable as a result of such election or such cessation of usage based on the applicable market exchange rate.
When we use the term “conversion event,” we mean the
cessation of use of:
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a currency, currency unit or composite currency both by the government of the country that issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community;
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the European Currency Unit both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities; or
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any currency unit or composite currency other than the European Currency Unit for the purposes for which it was established.
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Unless otherwise provided in the applicable prospectus supplement,
all payments of principal of, and any premium or make-whole amount, and interest on, any debt security that is payable in a foreign
currency that ceases to be used by its government of issuance shall be made in United States dollars.
In the event that (i) we effect covenant defeasance with respect
to any debt securities and (ii) those debt securities are declared due and payable because of the occurrence of any event of default,
the amount in the currency, currency unit or composite currency in which such debt securities are payable, and government obligations
on deposit with the applicable trustee, will be sufficient to pay amounts due on such debt securities at the time of their stated
maturity but may not be sufficient to pay amounts due on such debt securities at the time of the acceleration resulting from such
event of default. However, the issuing company would remain liable to make payments of any amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the provisions,
if any, permitting such defeasance or covenant defeasance, including any modifications to the provisions described above, with
respect to the debt securities of or within a particular series.
Conversion Rights
The terms and conditions, if any, upon which the debt securities
are convertible into common stock or other securities of EyeGate will be set forth in the applicable prospectus supplement. The
terms will include whether the debt securities are convertible into shares of common stock or other securities of EyeGate, the
conversion price, or manner of calculation thereof, the conversion period, provisions as to whether conversion will be at the issuing
company’s option or the option of the holders, the events requiring an adjustment of the conversion price and provisions
affecting conversion in the event of the redemption of the debt securities and any restrictions on conversion.
Global Securities
The debt securities of a series may be issued in whole or in part
in the form of one or more global securities that will be deposited with, or on behalf of, a depository identified in the applicable
prospectus supplement relating to such series. Global securities, if any, issued in the United States are expected to be deposited
with The Depository Trust Company, or DTC, as depository. We may issue global securities in either registered or bearer form and
in either temporary or permanent form. We will describe the specific terms of the depository arrangement with respect to a series
of debt securities in the applicable prospectus supplement relating to such series. We expect that unless the applicable prospectus
supplement provides otherwise, the following provisions will apply to depository arrangements.
Once a global security is issued, the depository for such global
security or its nominee will credit on its book-entry registration and transfer system the respective principal amounts of the
individual debt securities represented by such global security to the accounts of participants that have accounts with such depository.
Such accounts shall be designated by the underwriters, dealers or agents with respect to such debt securities or by us if we offer
such debt securities directly. Ownership of beneficial interests in such global security will be limited to participants with the
depository or persons that may hold interests through those participants.
We expect that, under procedures established by DTC, ownership of
beneficial interests in any global security for which DTC is the depository will be shown on, and the transfer of that ownership
will be effected only through, records maintained by DTC or its nominee, with respect to beneficial interests of participants with
the depository, and records of participants, with respect to beneficial interests of persons who hold through participants with
the depository. Neither we nor the trustee will have any responsibility or liability for any aspect of the records of DTC or for
maintaining, supervising or reviewing any records of DTC or any of its participants relating to beneficial ownership interests
in the debt securities. The laws of some states require that certain purchasers of securities take physical delivery of such securities
in definitive form. Such limits and laws may impair the ability to own, pledge or transfer beneficial interest in a global security.
So long as the depository for a global security or its nominee is
the registered owner of such global security, such depository or such nominee, as the case may be, will be considered the sole
owner or holder of the debt securities represented by the global security for all purposes under the applicable indenture. Except
as described below or in the applicable prospectus supplement, owners of beneficial interest in a global security will not be entitled
to have any of the individual debt securities represented by such global security registered in their names, will not receive or
be entitled to receive physical delivery of any such debt securities in definitive form and will not be considered the owners or
holders thereof under the applicable indenture. Beneficial owners of debt securities evidenced by a global security will not be
considered the owners or holders thereof under the applicable indenture for any purpose, including with respect to the giving of
any direction, instructions or approvals to the trustee under the indenture. Accordingly, each person owning a beneficial interest
in a global security with respect to which DTC is the depository must rely on the procedures of DTC and, if such person is not
a participant with the depository, on the procedures of the participant through which such person owns its interests, to exercise
any rights of a holder under the applicable indenture. We understand that, under existing industry practice, if DTC requests any
action of holders or if an owner of a beneficial interest in a global security desires to give or take any action which a holder
is entitled to give or take under the applicable indenture, DTC would authorize the participants holding the relevant beneficial
interest to give or take such action, and such participants would authorize beneficial owners through such participants to give
or take such actions or would otherwise act upon the instructions of beneficial owners holding through them.
Payments of principal of, and any premium or make-whole amount,
and interest on, individual debt securities represented by a global security registered in the name of a depository or its nominee
will be made to or at the direction of the depository or its nominee, as the case may be, as the registered owner of the global
security under the applicable indenture. Under the terms of the applicable indenture, we and the trustee may treat the persons
in whose name debt securities, including a global security, are registered as the owners thereof for the purpose of receiving such
payments. Consequently, neither we nor the trustee have or will have any responsibility or liability for the payment of such amounts
to beneficial owners of debt securities including principal, any premium or make-whole amount, or interest. We believe, however,
that it is currently the policy of DTC to immediately credit the accounts of relevant participants with such payments, in amounts
proportionate to their respective holdings of beneficial interests in the relevant global security as shown on the records of DTC
or its nominee. We also expect that payments by participants to owners of beneficial interests in such global security held through
such participants will be governed by standing instructions and customary practices, as is the case with securities held for the
account of customers in bearer form or registered in street name, and will be the responsibility of such participants. Redemption
notices with respect to any debt securities represented by a global security will be sent to the depository or its nominee. If
less than all of the debt securities of any series are to be redeemed, we expect the depository to determine the amount of the
interest of each participant in such debt securities to be redeemed to be determined by lot. Neither we, the trustee, any paying
agent nor the security registrar for such debt securities will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in the global security for such debt securities or for
maintaining any records with respect thereto.
Neither we nor the trustee will be liable for any delay by the holders
of a global security or the depository in identifying the beneficial owners of debt securities, and we and the trustee may conclusively
rely on, and will be protected in relying on, instructions from the holder of a global security or the depository for all purposes.
The rules applicable to DTC and its participants are on file with the SEC.
If a depository for any debt securities is at any time unwilling,
unable or ineligible to continue as depository and we do not appoint a successor depository within 90 days, we will issue individual
debt securities in exchange for the global security representing such debt securities. In addition, we may at any time and our
sole discretion, subject to any limitations described in the applicable prospectus supplement relating to such debt securities,
determine not to have any of such debt securities represented by one or more global securities and in such event will issue individual
debt securities in exchange for the global security or securities representing such debt securities. Individual debt securities
so issued will be issued in denominations of $1,000 and integral multiples of $1,000.
The debt securities of a series may also be issued in whole or in
part in the form of one or more bearer global securities that will be deposited with a depository, or with a nominee for such depository,
identified in the applicable prospectus supplement. Any such bearer global securities may be issued in temporary or permanent form.
The specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any portion of a
series of debt securities to be represented by one or more bearer global securities will be described in the applicable prospectus
supplement.
No Recourse
There is no recourse under any obligation, covenant or agreement
in the applicable indenture or with respect to any security against any of our or our successor’s past, present or future
stockholders, employees, officers or directors.
Description of Units
We may issue units comprised of shares of common stock, shares of
preferred stock, debt securities and warrants in any combination. We may issue units in such amounts and in as many distinct series
as we wish. This section outlines certain provisions of the units that we may issue. If we issue units, they will be issued under
one or more unit agreements to be entered into between us and a bank or other financial institution, as unit agent. The information
described in this section may not be complete in all respects and is qualified entirely by reference to the unit agreement with
respect to the units of any particular series. The specific terms of any series of units offered will be described in the applicable
prospectus supplement. If so described in a particular supplement, the specific terms of any series of units may differ from the
general description of terms presented below. We urge you to read any prospectus supplement related to any series of units we may
offer, as well as the complete unit agreement and unit certificate that contain the terms of the units. If we issue units, forms
of unit agreements and unit certificates relating to such units will be incorporated by reference as exhibits to the registration
statement, which includes this prospectus.
Each unit that we may issue will be issued so that the holder of
the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations
of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included
in the unit may not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus
supplement may describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions of the governing unit agreement;
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the price or prices at which such units will be issued;
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the applicable United States federal income tax considerations relating to the units;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
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any other terms of the units and of the securities comprising the units.
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The provisions described in this section, as well as those described
under “Description of Capital Stock,” “Description of Debt Securities” and “Description of Warrants,”
will apply to the securities included in each unit to the extent relevant and as may be updated in any prospectus supplements.
Issuance in Series
We may issue units in such amounts and in as many distinct series
as we wish. This section summarizes terms of the units that apply generally to all series. Most of the financial and other specific
terms of your series will be described in the applicable prospectus supplement.
Unit Agreements
We will issue the units under one or more unit agreements to be
entered into between us and a bank or other financial institution, as unit agent. We may add, replace or terminate unit agents
from time to time. We will identify the unit agreement under which each series of units will be issued and the unit agent under
that agreement in the applicable prospectus supplement.
The following provisions will generally apply to all unit agreements
unless otherwise stated in the applicable prospectus supplement:
Modification without Consent
We and the applicable unit agent may amend any unit or unit agreement
without the consent of any holder:
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to cure any ambiguity; any provisions of the governing unit agreement that differ from those described below;
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to correct or supplement any defective or inconsistent provision; or
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to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any material respect.
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We do not need any approval to make changes that affect only units
to be issued after the changes take effect. We may also make changes that do not adversely affect a particular unit in any material
respect, even if they adversely affect other units in a material respect. In those cases, we do not need to obtain the approval
of the holder of the unaffected unit; we need only obtain any required approvals from the holders of the affected units.
Modification with Consent
We may not amend any particular unit or a unit agreement with respect
to any particular unit unless we obtain the consent of the holder of that unit, if the amendment would:
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impair any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require the consent of the holder to any changes that would impair the exercise or enforcement of that right; or
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reduce the percentage of outstanding units or any series or class the consent of whose holders is required to amend that series or class, or the applicable unit agreement with respect to that series or class, as described below.
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Any other change to a particular unit agreement and the units issued
under that agreement would require the following approval:
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If the change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a majority of the outstanding units of that series; or
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If the change affects the units of more than one series issued under that agreement, it must be approved by the holders of a majority of all outstanding units of all series affected by the change, with the units of all the affected series voting together as one class for this purpose.
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These provisions regarding changes with majority approval also apply
to changes affecting any securities issued under a unit agreement, as the governing document.
In each case, the required approval must be given by written consent.
Mergers and Similar Transactions Permitted;
No Restrictive Covenants or Events of Default
The unit agreements will not restrict our ability to merge or consolidate
with, or sell our assets to, another corporation or other entity or to engage in any other transactions. If at any time we merge
or consolidate with, or sell our assets substantially as an entirety to, another corporation or other entity, the successor entity
will succeed to and assume our obligations under the unit agreements. We will then be relieved of any further obligation under
these agreements.
The unit agreements will not include any restrictions on our ability
to put liens on our assets, including our interests in our subsidiaries, nor will they restrict our ability to sell our assets.
The unit agreements also will not provide for any events of default or remedies upon the occurrence of any events of default.
Governing Law
The unit agreements and the units will be governed by Delaware law.
Form, Exchange and Transfer
We will issue each unit in global—i.e., book-entry—form
only. Units in book-entry form will be represented by a global security registered in the name of a depositary, which will be the
holder of all the units represented by the global security. Those who own beneficial interests in a unit will do so through participants
in the depositary’s system, and the rights of these indirect owners will be governed solely by the applicable procedures
of the depositary and its participants. We will describe book-entry securities, and other terms regarding the issuance and registration
of the units in the applicable prospectus supplement.
Each unit and all securities comprising the unit will be issued
in the same form.
If we issue any units in registered, non-global form, the following
will apply to them.
The units will be issued in the denominations stated in the applicable
prospectus supplement. Holders may exchange their units for units of smaller denominations or combined into fewer units of larger
denominations, as long as the total amount is not changed.
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Holders may exchange or transfer their units at the office of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated units at that office. We may appoint another entity to perform these functions or perform them ourselves.
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Holders will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or other governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may also require an indemnity before replacing any units.
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If we have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those units or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to permit transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this manner if the unit includes securities that are or may be selected for early settlement.
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Only the depositary will be entitled to transfer or exchange a unit
in global form, since it will be the sole holder of the unit.
Payments and Notices
In making payments and giving notices with respect to our units,
we will follow the procedures as described in the applicable prospectus supplement.
LEGAL MATTERS
Certain legal matters in connection with this offering will be passed
upon for us by Burns & Levinson LLP, Boston, Massachusetts. Any underwriters will also be advised about the validity of the
securities and other legal matters by their own counsel, which will be named in the prospectus supplement.
EXPERTS
The consolidated balance sheets of EyeGate Pharmaceuticals, Inc.
and subsidiary as of December 31, 2018 and 2017, and the related consolidated statements of operations, comprehensive loss, stockholders’
equity, and cash flows for each of the years then ended, have been audited by EisnerAmper LLP, independent registered public accounting
firm, as stated in their report dated March 1, 2019, which is incorporated by reference therein, which report includes an explanatory
paragraph about the existence of substantial doubt concerning the Company’s ability to continue as a going concern. Such
financial statements have been incorporated herein 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 information requirements of the Exchange Act
and, in accordance therewith, file annual, quarterly and special reports, proxy statements and other information with the SEC.
These documents may be accessed through the SEC’s electronic data gathering, analysis and retrieval system, or EDGAR, via
electronic means, including the SEC’s home page on the Internet (www.sec.gov).
We have the authority to designate and issue more than one class
or series of stock having various preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends,
qualifications, and terms and conditions of redemption. See “Description of Capital Stock.” We will furnish a full
statement of the relative rights and preferences of each class or series of our stock which has been so designated and any restrictions
on the ownership or transfer of our stock to any shareholder upon request and without charge. Written requests for such copies
should be directed to EyeGate Pharmaceuticals, Inc., 271 Waverley Oaks Road, Suite 108, Waltham, MA 02452, or by telephone request
to (781) 788-8869. Our website is located at http://www.eyegatepharma.com. Information contained on our website is not incorporated
by reference into this prospectus and, therefore, is not part of this prospectus or any accompanying prospectus supplement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the information and
reports we file with them under File No. 001-36672, which means that we can disclose important information to you by referring
you to those publicly available 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 the information already incorporated by reference.
We are incorporating by reference the documents listed below, which we have already filed with the SEC, and any future filings
we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, except as to any portion of any future report
or document that is not deemed filed under such provisions, until we sell all of the securities:
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The description of our common stock contained in our registration statement on Form 8-A12B filed with the SEC on July 28, 2015 and amended on July 30, 2015.
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Any statement contained in a document incorporated or deemed to
be incorporated by reference in this prospectus is modified or superseded for purposes of the prospectus to the extent that a statement
contained in this prospectus or in any other subsequently filed document that also is or is deemed to be incorporated by reference
herein modifies or supersedes such statement.
Upon request, we will provide, without charge, to each person, including
any beneficial owner, to whom a copy of this prospectus is delivered a copy of the documents incorporated by reference into this
prospectus. You may request a copy of these filings, and any exhibits we have specifically incorporated by reference as an exhibit
in this prospectus, at no cost by writing or telephoning us at the following address:
EyeGate Pharmaceuticals, Inc.
271 Waverley Oaks Road, Suite 108
Waltham, MA 02452
Telephone: (781) 788-8869.
This prospectus is part of a registration statement we filed with
the SEC. We have incorporated exhibits into this registration statement. You should read the exhibits carefully for provisions
that may be important to you.
You should rely only on the information incorporated by reference
or provided in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with different information.
We are not making an offer of these securities in any state where the offer is not permitted. You should not assume that the information
in this prospectus or in the documents incorporated by reference is accurate as of any date other than the date on the front of
this prospectus or those documents.
4,668,844 Shares of Common Stock
PROSPECTUS SUPPLEMENT
H.C. Wainwright & Co.
August 9, 2021
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