As filed with the Securities and Exchange
Commission on October 18, 2019
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EYEGATE
PHARMACEUTICALS, INC.
(Exact name of registrant as specified
in its charter)
|
Delaware
|
|
98-0443284
|
|
(State or other jurisdiction of
|
|
(I.R.S. Employer
|
|
incorporation or organization)
|
|
Identification Number)
|
271 Waverley Oaks Road, Suite 108
Waltham, MA 02452
(781) 788-9043
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Stephen From
President and Chief Executive Officer
EyeGate Pharmaceuticals, Inc.
271 Waverley Oaks Road, Suite 108
Waltham, MA 02452
(781) 788-9043
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
With copies to:
Stephen D. Brook, Esq.
Robert A. Petitt, Esq.
Burns & Levinson LLP
125 High Street
Boston, MA 02110
(617) 345-3000
Approximate date of commencement of proposed
sale to the public: From time to time after this Registration Statement becomes effective.
If the only securities being registered
on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ¨
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933,
as amended, other than securities offered only in connection with dividend or interest reinvestment plans, check the following
box: x
If this form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. ¨
If this Form is a registration statement
pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box. ¨
If this Form is a post-effective amendment
to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
Indicate by
check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting company,” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
|
Large accelerated filer:
|
¨
|
Accelerated filer:
|
¨
|
|
Non-accelerated filer:
|
¨
|
Smaller reporting company:
|
x
|
|
|
|
Emerging growth company:
|
x
|
If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act x
CALCULATION OF REGISTRATION FEE
Title of Each Class of
Securities to be Registered
|
|
Amount
to be
Registered (1)
|
|
|
Proposed
Maximum
Offering Price
Per Share (2)
|
|
|
Proposed
Maximum
Aggregate
Offering Price
|
|
|
Amount of
Registration Fee
|
|
|
Common Stock
|
|
|
600,000
|
|
|
$
|
3.375
|
|
|
$
|
2,025,000
|
|
|
$
|
263
|
|
|
Common Stock underlying warrants (3)
|
|
|
600,000
|
|
|
$
|
3.375
|
|
|
$
|
2,025,000
|
|
|
$
|
263
|
|
|
Total (3)
|
|
|
1,200,000
|
|
|
$
|
3.375
|
|
|
$
|
4,050,000
|
|
|
$
|
526
|
|
|
|
(1)
|
Pursuant to Rule 416 of
the Securities Act of 1933, as amended (the “Securities Act”), the shares of common stock, $0.01 per share (the “Common
Stock”) offered hereby also include such presently indeterminate number of shares of the registrant’s Common Stock
as a result of stock splits, stock dividends or similar transactions.
|
|
|
(2)
|
In accordance with Rule
457(c) under the Securities Act, the aggregate offering price of the Common Stock is estimated solely for the calculation of the
registration fees due for this filing. This estimate was based on the average of the high and low sales price of our stock reported
by The Nasdaq Capital Market on October 14, 2019, which date is within five (5) business days of the filing of this registration
statement.
|
|
|
(3)
|
Represents the maximum
number of shares of Common Stock issuable upon exercise of the warrants.
|
The Registrant hereby amends this Registration
Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment
which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a)
of the Securities Act of 1933 or until this Registration Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete
and may be changed. The selling shareholders may not sell the securities until the Registration Statement filed with the Securities
and Exchange Commission, of which this prospectus is a part, is effective. This prospectus is not an offer to sell these securities
and is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated
October 18, 2019
PROSPECTUS
EYEGATE PHARMACEUTICALS, INC.
1,200,000 Shares of Common Stock
This prospectus relates to the possible
resale, from time to time, by the selling stockholder identified in this prospectus of up to 600,000 shares of our common stock,
par value $0.01 per share (the “Common Stock”), initially issued in a private placement (the “Private Placement”),
and 600,000 shares of Common Stock underlying warrants issued in the Private Placement.
The selling stockholder may offer the shares
from time to time as each selling stockholder may determine through public or private transactions or through other means described
in the section entitled “Plan of Distribution” or a supplement to this prospectus. Each selling stockholder may also
sell shares under Rule 144 under the Securities Act of 1933, as amended, if available, rather than under this prospectus.
The registration of these shares does not
necessarily mean that any holders will sell any of their shares or exercise their warrants. We are not offering for sale any shares
of our Common Stock pursuant to this prospectus. We will not receive any proceeds from the
sale of these shares. We will, however, receive cash proceeds equal to the total exercise price of warrants that
are exercised for cash.
Our Common Stock is listed on The Nasdaq
Capital Market under the symbol “EYEG.” On October 17, 2019, the closing price for our Common Stock, as reported on
The Nasdaq Capital Market, was $3.31 per share.
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 6, 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 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 have filed with the Securities and Exchange Commission (the “SEC”) pursuant to which the selling
stockholder named herein may, from time to time, offer and sell or otherwise dispose of the securities covered by this prospectus.
You should not assume that the information contained in this prospectus is accurate on any date subsequent to the date set forth
on the front cover of this prospectus or that any information we have incorporated by reference is correct on any date subsequent
to the date of the document incorporated by reference, even though this prospectus is delivered or securities are sold or otherwise
disposed of on a later date. It is important for you to read and consider all information contained in this prospectus, including
the Information Incorporated by Reference herein, in making your investment decision. You should also read and consider the information
in the documents to which we have referred you under the captions “Where You Can Find More Information” and “Incorporation
of Information by Reference” in this prospectus.
Neither we nor the selling stockholder
have authorized any dealer, salesman or other person to give any information or to make any representation other than those contained
or incorporated by reference in this prospectus. You must not rely upon any information or representation not contained or incorporated
by reference in this prospectus. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any
of our securities other than the securities covered hereby, nor does this prospectus constitute an offer to sell or the solicitation
of an offer to buy any securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in
such jurisdiction. Persons who come into possession of this prospectus in jurisdictions outside the United States are required
to inform themselves about, and to observe, any restrictions as to the offering and the distribution of this prospectus applicable
to those jurisdictions.
We further note that the representations,
warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference
in the 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 or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
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 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 iontophoresis drug delivery system. Our CMHA-S platform is based on a modified form of the natural polymer hyaluronic acid
(“HA”), which is a gel that possesses unique physical and chemical properties such as hydrating and promoting wound
healing when applied to the ocular surface. We believe that the ability of CMHA-S to adhere longer to the ocular surface, while
hydrating and promoting wound healing, makes it well-suited for treating various ocular surface injuries from dry eye to corneal
wounds.
HA is a naturally occurring polymer that
is important in many physiological processes, including wound healing, tissue homeostasis, and joint lubrication. To create this
hydrogel, the HA is modified to create CMHA that is then crosslinked together through the thiol groups to CMHA-S. Crosslinking
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 crosslinking, and incorporation
of active ingredients, provides a highly versatile platform that can be tailored to a specific application and formulated as eye
drops, gels, or films.
Our first CMHA-S-based product candidate,
EyeGate Ocular Bandage Gel (“OBG”), is a topically applied 0.75% CMHA-S 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
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”).
We initiated a pivotal study for the indication of PRK in the second quarter of 2019 with topline data expected by year end 2019.
Assuming positive data from this study, we plan to file for commercialization for this indication shortly thereafter. Additionally,
the FDA approved the initiation of a follow-on trial for the indication of PE in the third quarter of 2019, with topline data expected
by year end 2019. OBG eye drops create a thin, durable and protective coating to the damaged surface of the eye, serving to facilitate
and manage corneal re-epithelization. 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 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 OBG. We have obtained a license from BioTime, Inc. for the exclusive worldwide right to commercialize CMHA-S for ophthalmic
treatments in humans. We paid BioTime $50,000 and are required to pay an annual fee of $30,000 and royalties to BioTime based on
revenue relating to any product incorporating the CMHA-S technology. Our license agreement expires when patent protection for the
CMHA-S technology lapses, which is expected to occur in the U.S. in 2028. We do not have the rights to the CMHA-S platform for
animal health or veterinary medicine.
OBG is being developed pursuant to a de
novo 510(k) regulatory pathway for devices submitted for marketing clearance to the U.S. Food and Drug Administration
(“FDA”). We plan to develop OBG for two indications, management of corneal re-epithelization post PRK surgery and for
evaluating the potential to help clinicians better manage patients with PE due to pathologies
such as dry eye. We believe that OBG is the first and only eye drop being developed in the U.S. to target the management of corneal
re-epithelization.
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 Combination Product”).
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. Food and Drug Administration, or 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. We announced topline data for the Phase 2b cataract surgery trial in the first quarter of
2018 and although EGP-437 demonstrated a higher rate of success compared to vehicle at all time points, the co-primary endpoints
of proportion of subjects with an anterior chamber cell (“ACC”) count of zero at Day 7 and the proportion of subjects
with a pain score of zero at Day 1 did not show statistical significance. Additionally, we announced topline data for the confirmatory
Phase 3 uveitis trial in the third quarter of 2018 and although EGP-437 showed clinical efficacy, defined as a reduction in ACC
score throughout the study, it did not demonstrate non-inferiority to the prednisolone acetate ophthalmic solution control group.
We will continue to review the data and will be assessing our strategic options for EGP-437 going forward.
We entered into two exclusive global license
agreements with a subsidiary of Bausch Health Companies, Inc. (“BHC”) for our EGP-437 Combination Product in the fields
of anterior uveitis and for the treatment of post-operative ocular inflammation and pain in ocular surgery patients. Effective
March 14, 2019, BHC voluntarily terminated these license agreements reinstating to us all of the rights and privileges of the EGP-437
platform.
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
Reverse Stock Split
Effective as of August 30, 2019, we completed
a 1-for-15 reverse stock split of our Common Stock in order to regain compliance with Nasdaq Listing Rule 5550(a)(2), which requires
a minimum bid price of $1.00 per share. As a result of the reverse stock split, each fifteen (15) shares of Common Stock issued
and outstanding as of 12:01 a.m. Eastern Time on August 30, 2019 were combined and converted into one share of Common Stock. In
accordance with Nasdaq Listing Rule 5810(c)(3)(A), we regained compliance when the closing bid price of our Common Stock was at
least $1.00 for a minimum of 10 consecutive business days, which requirement was satisfied as of September 13, 2019. All references
to numbers of shares of Common Stock and per-share information in this prospectus have been adjusted retroactively, as appropriate,
to reflect the 1-for-15 reverse stock split.
Private Placement
On October 2, 2019, we completed a private
placement of 600,000 shares of Common Stock and warrants to purchase up to 600,000 shares of Common Stock (the “Private Placement”)
to the selling stockholder named herein, with a combined purchase price per share and warrant of $3.125. The total gross proceeds
from the Private Placement were approximately $1.9 million. The warrants have an exercise price of $3.125 per share, subject to
adjustments as provided under the terms of the warrants, and will be exercisable on the six month anniversary of their issuance
date. The warrants are exercisable for five years from the issuance date.
The shares of Common Stock, the warrants
and the shares of Common Stock issuable upon the exercise of the warrants were sold and issued in the Private Placement without
registration under the Securities Act in reliance on the exemptions provided by Section 4(a)(2) of the Securities Act
as transactions not involving a public offering and Rule 506 promulgated under the Securities Act as sales to accredited investors,
and in reliance on similar exemptions under applicable state laws. This prospectus relates to the resale of the 600,000 shares
of Common Stock and 600,000 shares of Common Stock underlying warrants issued to the selling stockholder in the Private Placement.
THE OFFERING
We
are registering for resale by the selling stockholder named herein an aggregate
of 1,200,000 shares of our Common Stock as described below.
|
Securities being offered:
|
|
1,200,000 shares of our Common Stock, including 600,000 shares of Common Stock underlying warrants to purchase Common Stock issued to the selling stockholder in connection with a private placement.
|
|
|
|
|
|
Use of proceeds:
|
|
We will not receive any of the proceeds from the sale or other disposition of shares of our Common Stock by the selling stockholder. We may receive proceeds upon any exercise for cash of outstanding warrants, in which case such proceeds will be used for working capital and other general corporate purposes. See “Use of Proceeds” on page 9.
|
|
|
|
|
|
Market for common stock:
|
|
Our Common Stock is listed on The Nasdaq
Capital Market under the symbol “EYEG.” On October 17, 2019, the last reported sale price of our Common
Stock on The Nasdaq Capital Market was $3.31.
|
|
|
|
|
|
Risk Factors
|
|
This investment involves a high degree of risk. See the information contained in or incorporated by reference under “Risk Factors” beginning on page 6 of this prospectus and in the documents incorporated by reference into this prospectus.
|
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.
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:
|
|
·
|
the timing and success of preclinical studies and clinical trials conducted by us and our development partners;
|
|
|
·
|
the ability to obtain and maintain regulatory approval of our product candidates, and the labeling for any approved products;
|
|
|
·
|
the scope, progress, expansion, and costs of developing and commercializing our product candidates;
|
|
|
·
|
the size and growth of the potential markets for our product candidates and the ability to serve those markets;
|
|
|
·
|
our expectations regarding our expenses and revenue, the sufficiency of our cash resources and needs for additional financing;
|
|
|
·
|
the rate and degree of market acceptance of any of our product candidates;
|
|
|
·
|
our expectations regarding competition;
|
|
|
·
|
our anticipated growth strategies;
|
|
|
·
|
our ability to attract or retain key personnel;
|
|
|
·
|
our ability to establish and maintain development partnerships;
|
|
|
·
|
our expectations regarding federal, state and foreign regulatory requirements;
|
|
|
·
|
regulatory developments in the U.S. and foreign countries;
|
|
|
·
|
our ability to obtain and maintain intellectual property protection for our product candidates;
|
|
|
·
|
the anticipated trends and challenges in our business and the market in which we operate; and
|
|
|
·
|
our use of proceeds from this offering.
|
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 will receive
no proceeds from the sale of shares of Common Stock by the selling stockholder.
A portion of the
shares of Common Stock covered by this prospectus are issuable upon exercise of warrants issued to the selling stockholder.
The exercise price of the outstanding warrants is $3.125 per share. The exercise price and number of shares of Common
Stock issuable upon exercise of the warrants may be adjusted in certain circumstances, including stock splits or dividends,
mergers, or reclassifications or similar events. Upon any exercise of outstanding warrants, the selling stockholder will
pay us the exercise price.
To the extent
we receive proceeds from the cash exercise of outstanding warrants, we intend to use the proceeds for working capital and
other general corporate purposes.
SELLING STOCKHOLDER
The table below sets forth information
concerning the resale of our shares by the selling stockholder. The selling stockholder acquired the securities
being registered hereunder in the Private Placement. The total number of shares of Common Stock sold under this prospectus may
be adjusted to reflect adjustments due to stock dividends, stock distributions, splits, combinations or recapitalizations with
regard to the Common Stock and warrants. Unless otherwise stated below in the footnotes, to our knowledge, neither the selling
stockholder, nor any affiliate of such stockholder: (i) has held any position or office with us during the three years prior
to the date of this prospectus; or (ii) is a broker-dealer, or an affiliate of a broker-dealer.
The selling stockholder may exercise
its warrants at any time in its sole discretion. Set forth below is the name of the selling stockholder and the amount
and percentage of Common Stock owned by the selling stockholder (including shares which the stockholder has the right to acquire
within 60 days, including upon exercise of warrants) prior to the offering, the shares to be sold in the offering, and the amount
and percentage of Common Stock to be owned by the selling stockholder (including shares which the stockholder has the right to
acquire within 60 days, including upon exercise of warrants) after the offering assuming all shares are sold. The footnotes provide
information about persons who have voting and dispositive power with respect to shares held by the selling stockholder.
We have registered up to 1,200,000 shares
of our Common Stock, including 600,000 shares of Common Stock underlying warrants to purchase Common Stock issued
to the selling stockholder in connection with the Private Placement. See “Prospectus Summary” above.
The following table is based on information
provided to us by the selling stockholder and is as of October 18, 2019. The selling stockholder may sell all
or some of the shares of Common Stock it is offering, and may sell, unless indicated otherwise in the footnotes below, shares of
our Common Stock otherwise than pursuant to this prospectus. The tables below assume that the selling stockholder sells all of
the shares offered by it in offerings pursuant to this prospectus, and does not acquire any additional shares. We are unable to
determine the exact number of shares that will actually be sold or when or if these sales will occur.
Name of Selling
Stockholder
|
|
Shares Beneficially
Owned Pre-
Offering(1)
|
|
|
% Owned
Pre-
Offering(2)
|
|
|
Common Stock
Offered in this
Offering
|
|
|
Warrant
Shares
Offered in this
Offering(3)
|
|
|
Number of
Shares Post-
Offering
|
|
|
% of Shares
Post-Offering(2)
|
|
|
Armistice Capital Master Fund Ltd. (4)
|
|
|
3,245,000
|
|
|
|
63.8
|
%
|
|
|
600,000
|
|
|
|
600,000
|
|
|
|
2,045,000
|
|
|
|
45.6
|
%
|
|
(1)
|
Beneficial ownership includes shares of Common Stock as to which a person or group has sole or shared voting power or dispositive power. Shares of Common Stock registered hereunder, as well as shares of common stock subject to options, warrants or convertible preferred stock that are exercisable or convertible within 60 days of October 18, 2019, are deemed outstanding for purposes of computing the number of shares beneficially owned and percentage ownership of the person or group holding such shares of Common Stock, options, warrants or convertible securities, but are not deemed outstanding for computing the percentage of any other person
|
|
(2)
|
Percentages are based on 3,636,460 shares of Common Stock outstanding as of October 18, 2019.
|
|
(3)
|
Warrants are exercisable at an exercise price of $3.125 per share and expire five years from the date of issuance.
|
|
(4)
|
This information is based solely upon (i) an amended Schedule 13D filed jointly by Armistice Capital, LLC, Armistice Capital Master Fund, Ltd. (the “Master Fund”) and Steven Boyd with Securities and Exchange Commission on October 2, 2019 and (ii) a Form 4 filed jointly by Armistice Capital, LLC, the Master Fund and Steven Boyd with the Securities and Exchange Commission on October 1, 2019. Consists of (i) 1,792,500 shares owned by the Master Fund, (ii) 600,000 currently exercisable warrants held by the Master Fund (which amount does not include an additional 1,602,085 warrants that are subject to blocker provisions that prevent the Master Fund from exercising the warrants if it would be more than a 4.99% or 9.99% (as applicable) beneficial owner of the Common Stock following any such exercise); and (iii) 4,092 shares of Series C Convertible Preferred Stock held by the Master Fund that are currently convertible into 852,500 shares of Common Stock. Armistice Capital, LLC and Steven Boyd have voting and investment power with respect to such shares. Mr. Boyd is a member of our Board of Directors.
|
PLAN OF DISTRIBUTION
The selling stockholder, which for this purpose includes donees,
pledgees, transferees or other successors-in-interest selling shares of Common Stock or interests in shares of Common
Stock received after the date of this prospectus from the selling stockholder as a gift, pledge, dividend, distribution or other
transfer, may, from time to time, sell, transfer or otherwise dispose of any or all of its shares of Common Stock or interests
in shares of Common Stock on any stock exchange, market or trading facility on which the shares are traded, or in private transactions.
These sales or other dispositions may be at fixed prices, at prevailing market prices at the time of sale, at prices related to
the prevailing market price, at varying prices determined at the time of sale, or at negotiated prices.
The selling stockholder may use any
one or more of the following methods when selling our shares or interests in our shares:
|
|
·
|
ordinary brokerage transactions
and transactions in which the broker-dealer solicits purchasers;
|
|
|
·
|
block trades in which a
broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate
the transaction;
|
|
|
·
|
purchases by a broker-dealer
as principal and resale by the broker-dealer for its account;
|
|
|
·
|
on any national securities
exchange or quotation service on which the shares may be listed or quoted at the time of sale;
|
|
|
·
|
privately negotiated transactions;
|
|
|
·
|
short sales effected after
the date the registration statement of which this prospectus is a part is declared effective by the SEC;
|
|
|
·
|
through the writing or
settlement of options or other hedging transactions, whether through an options exchange or otherwise;
|
|
|
·
|
broker-dealers may agree
with the selling stockholder to sell a specified number of such shares at a stipulated price per share;
|
|
|
·
|
a combination of any such
methods of sale; and
|
|
|
·
|
any other method permitted
by applicable law.
|
The selling stockholder may, from
time to time, pledge or grant a security interest in some or all of our shares owned by them and, if they default in the performance
of their secured obligations, the pledgees or secured parties may offer and sell the shares of Common Stock, from time to time,
under this prospectus, or under an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities
Act, amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders
under this prospectus. The selling stockholder may also transfer our shares in other circumstances, in which case the
transferees, pledgees or other successors will be the selling beneficial owners for purposes of this prospectus.
In connection with the sale of our shares
of Common Stock or interests therein, the selling stockholder may enter into hedging transactions with broker-dealers
or other financial institutions, which may in turn engage in short sales of our shares in the course of hedging the positions they
assume. The selling stockholder may also sell shares of our Common Stock short and deliver these securities to close
out their short positions, or loan or pledge the Common Stock to broker-dealers that in turn may sell these securities. The
selling stockholder may also enter into option or other transactions with broker-dealers or other financial institutions or
the creation of one or more derivative securities which require the delivery to such broker-dealer or other financial institution
of shares offered by this prospectus, which shares such broker-dealer or other financial institution may resell pursuant to this
prospectus (as supplemented or amended to reflect such transaction).
The aggregate proceeds to the selling
stockholder from the sale of the Common Stock offered by it will be the purchase price of the Common Stock less discounts
or commissions, if any. The selling stockholder reserves the right to accept and, together with its agents from time to time,
to reject, in whole or in part, any proposed purchase of Common Stock to be made directly or through agents. We will not receive
any of the proceeds from sales of shares by the selling stockholder.
The selling stockholder may also resell
all or a portion of the shares in open market transactions in reliance upon Rule 144 under the Securities Act, provided that they
meet the criteria and conform to the requirements of that rule, or under Section 4(a)(1) of the Securities Act, if available,
rather than by means of this prospectus.
In connection with the sale of shares of
Common Stock covered by this prospectus, broker-dealers may receive commissions or other compensation from the selling stockholder
in the form of commissions, discounts or concessions. Broker-dealers may also receive compensation from purchasers of the shares
of Common Stock for whom they act as agents or to whom they sell as principals or both. Compensation as to a particular broker-dealer
may be in excess of customary commissions or in amounts to be negotiated. In connection with any underwritten offering, underwriters
may receive compensation in the form of discounts, concessions or commissions from a selling stockholder or from purchasers of
the shares for whom they act as agents. Underwriters may sell the shares of Common Stock to or through dealers, and such dealers
may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Any underwriters, broker-dealers, agents or other persons acting on behalf of a selling
stockholder that participate in the distribution of the shares of Common Stock may be deemed to be “underwriters” within
the meaning of the Securities Act, and any profit on the sale of the shares of Common Stock by them and any discounts, commissions
or concessions received by any of those underwriters, broker-dealers, agents or other persons may be deemed to be underwriting
discounts and commissions under the Securities Act. The aggregate amount of compensation in the form of underwriting discounts,
concessions, commissions or fees and any profit on the resale of shares by the selling stockholder that may be deemed
to be underwriting compensation pursuant to Financial Industry Regulatory Authority, Inc., rules and regulations will not exceed
applicable limits.
The selling stockholder and any underwriters,
broker-dealers or agents that participate in the sale of the Common Stock or interests therein may be “underwriters”
within the meaning of Section 2(11) of the Securities Act. Any discounts, commissions, concessions or profit they earn on
any resale of the shares may be underwriting discounts and commissions under the Securities Act. Selling stockholders who are “underwriters”
within the meaning of Section 2(a)(11) of the Securities Act will be subject to the prospectus delivery requirements of the
Securities Act and may be subject to certain statutory liabilities, including but not limited to, Sections 11, 12 and 17
of the Securities Act and Rule 10b-5 under the Exchange Act.
To the extent required, the shares of our
Common Stock to be sold, the names of the selling stockholder, the respective purchase prices and public offering prices,
the names of any agent, dealer or underwriter, and any applicable commissions or discounts with respect to a particular offer will
be set forth in an accompanying prospectus supplement or, if appropriate, a post-effective amendment to the registration statement
that includes this prospectus.
In order to comply with the securities
laws of some states, if applicable, the Common Stock may be sold in these jurisdictions only through registered or licensed brokers
or dealers. In addition, in some states the Common Stock may not be sold unless it has been registered or qualified for sale or
an exemption from registration or qualification requirements is available and is complied with.
We have advised the selling stockholder that
the anti-manipulation rules of Regulation M under the Exchange Act may apply to sales of shares in the market and to the activities
of the selling stockholder and their affiliates. In addition, to the extent applicable, we will make copies of this prospectus
(as it may be supplemented or amended from time to time) available to the selling stockholder for the purpose of satisfying
the prospectus delivery requirements of the Securities Act. The selling stockholder may indemnify any broker-dealer that
participates in transactions involving the sale of the shares against certain liabilities, including liabilities arising under
the Securities Act. All of the foregoing may affect the marketability of the Common Stock and the ability of any person or entity
to engage in market-making activities with respect to our Common Stock.
We will pay all expenses of the registration
of the Common Stock for resale by the selling stockholder, including, without limitation, filing fees and expenses of compliance
with state securities or “blue sky” laws; provided, however, that the selling stockholder will pay all underwriting
discounts and selling commissions, if any, and any related legal expenses incurred by it.
DETERMINATION OF OFFERING PRICE
The
prices at which the shares of Common Stock covered by this prospectus may actually
be sold will be determined by the prevailing public market price for shares of Common Stock,
by negotiations between the selling stockholder and buyers of our Common
Stock in private transactions or as otherwise described in “Plan of Distribution.”
DESCRIPTION
OF CAPITAL STOCK
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 are designated 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 3,636,460 shares of our Common
Stock (including 55,720 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 852,500 shares
of Common Stock) outstanding as of October 18, 2019, assuming no exercise of outstanding options or warrants. There were approximately
49 holders of record of our Common Stock as of October 18, 2019. This number does not include beneficial owners whose shares are
held in street name.
As of October 18, 2019, there were 180,212
shares of Common Stock subject to outstanding options and 3,316,300 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.
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 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 additional 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 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 Agent and Registrar
The transfer and warrant agent and registrar
for our Common Stock is VStock Transfer, LLC.
Listing
Our shares of Common Stock are quoted on
The Nasdaq Capital Market under the symbol “EYEG.”
LEGAL MATTERS
Certain legal matters in connection with
this offering 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, 2018 and 2017, 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).
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. 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 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:
|
|
·
|
Our Annual Report on Form 10-K for the year ended December 31, 2018 filed with the SEC on March 1, 2019;
|
|
|
|
|
|
|
·
|
Our Quarterly Report on Form 10-Q for the quarter ended March 31, 2019 filed with the SEC on May 8, 2019;
|
|
|
|
|
|
|
·
|
Our Quarterly Report on Form 10-Q for the quarter ended June 30, 2019 filed with the SEC on August 8, 2019;
|
|
|
|
|
|
|
·
|
Our Definitive Proxy Statement on Schedule 14A filed with the SEC on April 30, 2019;
|
|
|
|
|
|
|
·
|
Our Current Reports on Form 8-K filed with the SEC on March 22, 2019, May 14, 2019, June 20, 2019, August 15, 2019, August 29, 2019, September 23, 2019 and September 30, 2019; and
|
|
|
|
|
|
|
·
|
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
|
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.
EYEGATE PHARMACEUTICALS, INC.
1,200,000 Shares of Common Stock
PROSPECTUS
,
2019
Part II—INFORMATION NOT REQUIRED
IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The Company is paying all expenses of the
offering. No portion of these expenses will be borne by the selling security holder. The selling security holder, however, will
pay any other expenses incurred in selling its Common Stock, including any brokerage commissions or costs of sale. Following
is an itemized statement of all expenses in connection with the issuance and distribution of the securities to be registered.
All of the amounts shown are estimates, except for the SEC Registration Fees.
|
Securities and Exchange Commission registration fee
|
|
$
|
526
|
|
|
Legal fees and expenses
|
|
|
10,000
|
|
|
Accounting fees and expenses
|
|
|
6,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
16,526
|
|
Item 15. Indemnification of Directors and Officers
Our restated certificate of incorporation
contains provisions that eliminate, to the maximum extent permitted by the General Corporation Law of the State of Delaware, the
personal liability of our directors for monetary damages for breach of their fiduciary duties as directors. Our amended and restated
bylaws provide that we must indemnify our directors and officers and may indemnify our employees and other agents to the fullest
extent permitted by the General Corporation Law of the State of Delaware.
Sections 145 and 102(b)(7) of the General
Corporation Law of the State of Delaware provide that a corporation may indemnify any person made a party to an action by reason
of the fact that he or she was a director, officer, employee or agent of the corporation or is or was serving at the request of
a corporation against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably
believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of an action by or in right of the
corporation, no indemnification may generally be made in respect of any claim as to which such person is adjudged to be liable
to the corporation.
We have entered into indemnification agreements
with our directors and executive officers, in addition to the indemnification provided for in our amended and restated bylaws,
and intend to enter into indemnification agreements with any new directors and executive officers in the future. We have purchased
and intend to maintain insurance on behalf of any person who is or was a director or officer of us against any loss arising from
any claim asserted against him or her and incurred by him or her in any such capacity, subject to certain exclusions. See also
“Undertakings” set out in response to Item 17 herein.
Item 16. Exhibits
A list of exhibits filed with this registration
statement on Form S-3 is set forth on the Exhibit Index and is incorporated herein by reference.
Item 17. Undertakings
The undersigned registrant hereby undertakes:
|
(1)
|
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
|
|
|
(a)
|
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933,
|
|
|
(b)
|
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement,
|
|
|
(c)
|
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
|
Provided, however,
that paragraphs (1)(a), (1)(b) and (1)(c) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration
statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
|
(2)
|
That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
(3)
|
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
|
|
(4)
|
That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
|
|
|
(a)
|
If the registrant is relying on Rule 430B:
|
|
|
(i)
|
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
|
|
|
(ii)
|
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
|
|
|
(b)
|
If the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be a part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
|
|
(5)
|
That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the registrant undertakes that in a primary offering of securities of the registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
|
|
|
(a)
|
Any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424;
|
|
|
(b)
|
Any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the registrant;
|
|
|
(c)
|
The portion of any other free writing prospectus relating to the offering containing material information about registrant or its securities provided by or on behalf of the registrant; and
|
|
|
(d)
|
Any other communication that is an offer in the offering made by an registrant to the purchaser.
|
|
(6)
|
That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
|
|
(7)
|
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the forgoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
|
SIGNATURES
Pursuant to the requirements
of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Waltham, Commonwealth of Massachusetts, on October 18, 2019.
|
|
EYEGATE PHARMACEUTICALS, INC.
|
|
|
|
|
|
|
By:
|
/s/ Stephen From
|
|
|
|
Name: Stephen From
|
|
|
|
Title: President and Chief Executive Officer
|
KNOW ALL BE THESE PRESENTS,
that each person whose signature appears below hereby constitutes and appoints Stephen From as such person’s true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person’s name,
place and stead, in any and all capacities, to sign any or all amendments (including, without limitation, post-effective amendments)
to this registration statement (or any registration statement for the same offering that is to be effective upon filing pursuant
to Rule 462(b) under the Securities Act of 1933), and to file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority
to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents
and purposes as such person might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent,
or any substitute or substitutes of them, may lawfully do or cause to be done by virtue hereof.
|
Signature
|
|
Title
|
|
Date
|
|
/s/ Stephen From
|
|
President, Chief Executive Officer and Director
|
|
October 18, 2019
|
|
Stephen From
|
|
(principal executive officer)
|
|
|
|
|
|
|
|
|
|
/s/ Sarah Romano
|
|
Chief Financial Officer
|
|
October 18, 2019
|
|
Sarah Romano
|
|
(principal financial and accounting officer)
|
|
|
|
|
|
|
|
|
|
/s/ Paul Chaney
|
|
Chairman
|
|
October 18, 2019
|
|
Paul Chaney
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Morton Goldberg
|
|
Director
|
|
October 18, 2019
|
|
Morton Goldberg
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Praveen Tyle
|
|
Director
|
|
October 18, 2019
|
|
Praveen Tyle
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Peter Greenleaf
|
|
Director
|
|
October 18, 2019
|
|
Peter Greenleaf
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Thomas E. Hancock
|
|
Director
|
|
October 18, 2019
|
|
Thomas E. Hancock
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Bernard Malfroy-Camine
|
|
Director
|
|
October 18, 2019
|
|
Bernard Malfroy-Camine
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Steven J. Boyd
|
|
Director
|
|
October 18, 2019
|
|
Steven J. Boyd
|
|
|
|
|
EXHIBIT INDEX
|
Exhibit
No.
|
|
Description
|
|
2.1
|
|
Stock Purchase Agreement, dated as of March 7, 2016, by and among EyeGate Pharmaceuticals, Inc. and the Sellers named therein (incorporated by reference to Exhibit 2.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on March 7, 2016).
|
|
|
|
|
|
3.1
|
|
Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on February 20, 2015).
|
|
|
|
|
|
3.2
|
|
Certificate of Amendment to Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on July 11, 2018).
|
|
|
|
|
|
3.3
|
|
Certificate of Amendment to Restated Certificate of Incorporation of the Registrant (incorporated by reference to Exhibit 3.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on August 29, 2019).
|
|
|
|
|
|
3.4
|
|
Amended and Restated Bylaws of the Registrant (incorporated by reference to Exhibit 4.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on February 20, 2015).
|
|
|
|
|
|
3.5
|
|
Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on June 27, 2016).
|
|
|
|
|
|
3.6
|
|
Certificate of Designation of Preferences, Rights and Limitations of Series B Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on June 14, 2017).
|
|
|
|
|
|
3.7
|
|
Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on April 17, 2018).
|
|
|
|
|
|
4.1
|
|
Specimen Stock Certificate evidencing the shares of Common Stock (incorporated by reference to Exhibit 4.1 filed with Amendment No. 2 to the Registrant’s Form S-1 Statement (Registration No. 333-197725), filed with the SEC on August 29, 2014).
|
|
|
|
|
|
4.2
|
|
Form of Common Stock Purchase Warrant, dated June 30, 2016 (incorporated by reference to Exhibit 4.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on June 27, 2016).
|
|
|
|
|
|
4.3
|
|
Form of Common Stock Purchase Warrant, dated June 14, 2017 (incorporated by reference to Exhibit 4.3 filed with Amendment No. 2 to the Registrant’s Form S-1 Statement (Registration No. 333-217418), filed with the SEC on June 5, 2017).
|
|
|
|
|
|
4.4
|
|
Form of Common Stock Purchase Warrant, dated April 17, 2018 (incorporated by reference to Exhibit 4.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on April 13, 2018).
|
|
|
|
|
|
4.5
|
|
Form of Common Stock Purchase Warrant, dated October 2, 2019 (incorporated by reference to Exhibit 4.1 filed with the Registrant’s Current Report on Form 8-K, filed with the SEC on September 30, 2019).
|
|
|
|
|
|
5.1*
|
|
Opinion of Burns & Levinson LLP
|
|
|
|
|
|
23.1*
|
|
Consent of Burns & Levinson LLP (included in Exhibit 5.1)
|
|
|
|
|
|
23.2*
|
|
Consent of EisnerAmper LLP, Independent Registered Public Accounting Firm
|
|
|
|
|
|
24.1*
|
|
Power of Attorney (included in signature page)
|
|
|
|
|
|
*
|
|
Filed herewith.
|
AB Corporate Bond ETF (NASDAQ:EYEG)
Historical Stock Chart
From Mar 2024 to Apr 2024
AB Corporate Bond ETF (NASDAQ:EYEG)
Historical Stock Chart
From Apr 2023 to Apr 2024
