SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D

 

Under the Securities Exchange Act of 1934

(Amendment No.    )*

 

Eyenovia, Inc.

(Name of Issuer)

 

Common Stock, $0.0001 par value

(Title of Class of Securities)

 

30234E 104

(CUSIP Number)

 

Tsontcho Ianchulev

Curt LaBelle

501 Fifth Avenue, Suite 1404

New York, NY 10017

917-289-1117

(Name, Address and Telephone Number of Person Authorized to

Receive Notices and Communications)

 

January 29, 2018

(Date of Event which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), Rule 13d-1(f) or Rule 13d-1(g), check the following box. ☐

 

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See section 240.13d-7 for other parties to whom copies are to be sent.

 

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or other subject to the liabilities of that section of Act but shall be subject to all other provisions of the Act (however, see the Notes).  

  

(Page 1 of 8 Pages)

 

 

Page 2 of 8 Pages

 

CUSIP No. 30234E 104

 

1	Names of Reporting Persons.   Tsontcho Ianchulev
2	Check the Appropriate Box if a Member of a Group (a)  ¨ (b)  ¨
3	SEC Use Only
4	Source of Funds (See Instructions)   PF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) ¨
6	Citizenship or Place of Organization
	United States
Number of  Shares Beneficially Owned by  Each  Reporting  Person With		7	Sole Voting Power   159,009 (1)
		8	Shared Voting Power   1,200,001 (2)
		9	Sole Dispositive Power   159,009 (1)
		10	Shared Dispositive Power   1,200,001 (2)
11	Aggregate Amount Beneficially Owned by Each Reporting Person   1,359,010 (1)(2)
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares x
13	Percent of Class Represented by Amount in Row (11)   12.6%
14	Type of Reporting Person   IN

 

	(1)	Includes 18,749 shares of common stock and 140,260 shares underlying options held by Tsontcho Ianchulev directly that are exercisable within 60 days of the date of this report.
	(2)	Includes (i) 466,667 shares of common stock and 280,000 shares of common stock underlying options held by Private Medical Equity, Inc. that are exercisable within 60 days of the date of this report and (ii) 453,334 shares of common stock held by PME Investor Services Eyenovia, LLC. Tsontcho Ianchulev is one of the two principal shareholders of Private Medical Equity, Inc. and a manager of PME Investor Services Eyenovia, LLC and, therefore, may be deemed to have beneficial ownership of the shares of common stock held by Private Medical Equity, Inc. and PME Investor Services Eyenovia, LLC.

 

 

Page 3 of 8 Pages

 

CUSIP No. 30234E 104

 

1	Names of Reporting Persons.   Curt LaBelle
2	Check the Appropriate Box if a Member of a Group (a)  ¨ (b)  ¨
3	SEC Use Only
4	Source of Funds (See Instructions)   PF
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) ¨
6	Citizenship or Place of Organization
	United States
Number of  Shares Beneficially Owned by  Each  Reporting  Person With		7	Sole Voting Power   83,334 (1)
		8	Shared Voting Power   1,200,001 (2)
		9	Sole Dispositive Power   83,334 (1)
		10	Shared Dispositive Power   1,200,001 (2)
11	Aggregate Amount Beneficially Owned by Each Reporting Person   1,283,335 (1)(2)
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares x
13	Percent of Class Represented by Amount in Row (11)   11.9%
14	Type of Reporting Person   IN

 

	(1)	Includes 10,000 shares of common stock and 73,334 shares underlying options held by Curt LaBelle directly that are exercisable within 60 days of the date of this report.
	(2)	Includes (i) 466,667 shares of common stock and 280,000 shares of common stock underlying options held by Private Medical Equity, Inc. that are exercisable within 60 days of the date of this report and (ii) 453,334 shares of common stock held by PME Investor Services Eyenovia, LLC. Curt LaBelle is one of the two principal shareholders of Private Medical Equity, Inc. and a manager of PME Investor Services Eyenovia, LLC and, therefore, may be deemed to have beneficial ownership of the shares of common stock held by Private Medical Equity, Inc. and PME Investor Services Eyenovia, LLC.

 

 

Page 4 of 8 Pages

 

CUSIP No. 30234E 104

 

1	Names of Reporting Persons.   Private Medical Equity, Inc.
2	Check the Appropriate Box if a Member of a Group (a)  ¨ (b)  ¨
3	SEC Use Only
4	Source of Funds (See Instructions)   WC
5	Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) ¨
6	Citizenship or Place of Organization
	Nevada
Number of  Shares Beneficially Owned by  Each  Reporting  Person With		7	Sole Voting Power   746,667 (1)
		8	Shared Voting Power   0
		9	Sole Dispositive Power   746,667 (1)
		10	Shared Dispositive Power   0
11	Aggregate Amount Beneficially Owned by Each Reporting Person   746,667 (1)
12	Check if the Aggregate Amount in Row (11) Excludes Certain Shares  ¨
13	Percent of Class Represented by Amount in Row (11)   7.3%
14	Type of Reporting Person   CO

 

(1)

Includes 466,667 shares of common stock and 280,000 shares of common stock underlying options held by Private Medical Equity, Inc. that are exercisable within 60 days of the date of this report.

 

 

Page 5 of 8 Pages

 

SCHEDULE 13D

 

This Schedule 13D is filed on behalf of Tsontcho Ianchulev, Curt LaBelle and Private Medical Equity, Inc., a Nevada corporation, (“PME” and collectively with Tsontcho Ianchulev and Curt LaBelle, the “Reporting Persons”).

 

Item 1.

Security and Issuer

 

Securities acquired: common stock, $0.0001 par value per share (“Common Stock”)

 

Issuer:    Eyenovia, Inc. (“Issuer”)

501 Fifth Avenue, Suite 1404

New York, NY 10017

 

Item 2.

Identity and Background

 

(a)

This statement is filed by

 

(i)

Tsontcho Ianchulev, the Issuer’s Chief Executive Officer, Chief Medical Officer and a member of the Issuer’s Board of Directors (“Board”);

(ii)

Curt LaBelle, a member of the Issuer’s Board; and

(iii)

PME, which is the holder of approximately 7.3% of the issued and outstanding shares of Common Stock as of February 8, 2018.

  

Tsontcho Ianchulev and Curt LaBelle are the two principal shareholders of PME and, therefore, may be deemed to have beneficial ownership of the shares of Common Stock held by PME.

 

All disclosures herein with respect to any Reporting Person are made only by such Reporting Person. Any disclosures herein with respect to persons other than the Reporting Persons are made on information and belief after making inquiry to the appropriate party.

 

(b) The business address of each of the Reporting Persons is 501 Fifth Avenue, Suite 1404, New York, NY 10017.

 

(c) Tsontcho Ianchulev’s principal occupation is to serve as the Issuer's Chief Executive Officer, Chief Medical Officer and a member of the Issuer’s Board. Curt LaBelle’s principal occupation is investment advisory and biotech advisory work. PME is a venture investment and advisory company for life science opportunities.

 

(d) None of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

(e) None of the Reporting Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and, as a result of such proceeding, was, or is subject to, a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.

 

(f) Each of Tsontcho Ianchulev and Curt LaBelle is a US citizen. PME is a Nevada corporation.

 

Item 3.

Source and Amount of Funds or Other Consideration.

 

On January 29, 2018, 453,334 shares of Common Stock held by PME Investor Services Eyenovia, LLC (“PME Investor”) were issued to PME Investor upon automatic conversion of the Issuer’s Series A preferred stock at the time of the Issuer’s initial public offering (“IPO”). Such shares of Series A preferred stock were purchased with the PME Investor’s working capital on October 1, 2014 at a purchase price of $3.75 per share.

 

On January 29, 2018, Tsontcho Ianchulev and Curt LaBelle each purchased 10,000 shares of Common Stock in the IPO at a purchase price of $10.00 per share.

 

 

Page 6 of 8 Pages

 

8,749 shares of Common Stock and 140,260 shares of Common Stock underlying options that are exercisable within 60 days of the date of this report were issued to Tsontcho Ianchulev as compensation for his services to the Issuer.

 

73,334 shares of Common Stock underlying options that are exercisable within 60 days of the date of this report were issued to Curt LaBelle as compensation for his services to the Issuer.

 

466,667 shares of Common Stock and 280,000 shares of Common Stock underlying options that are exercisable within 60 days of the date of this report were issued to PME as compensation for its services to the Issuer.

  

Item 4.

Purpose of the Transaction

  

The shares of Common Stock owned by the Reporting Persons have been acquired for investment purposes. The Reporting Persons may make further acquisitions of the Common Stock from time to time and, subject to certain restrictions, may dispose of any or all of the Common Stock held by the Reporting Persons at any time depending on an ongoing evaluation of the investment in such securities, prevailing market conditions, other investment opportunities and other factors. However, certain of such shares are subject to certain lock-up restrictions as further described in Item 6 below.

 

Except for the foregoing, the Reporting Persons have no plans or proposals which relate to, or could result in, any of the matters referred to in paragraphs (a) through (c) and (e) through (j) of Item 4 of Schedule 13D.

 

With respect to paragraph (d) of Item 4, the Issuer’s Board is in the process of appointing two additional members to fill the vacancies of the Board in order to comply with the corporate governance requirements of The Nasdaq Stock Market and Tsontcho Ianchulev and Curt LaBelle currently each serves as a member of the Board.

 

Item 5.

Interest in Securities of the Issuer

 

(a)-(b) The aggregate number and percentage of Common Stock beneficially owned by the Reporting Persons (on the basis of a total of 9,936,771 shares of Common Stock outstanding as of February 8, 2018) are as follows: 

 

Tsontcho Ianchulev

a)		Amount beneficially owned: 1,359,010		Percentage: 12.6%
b)		Number of shares to which the Reporting Person has:
	i.	Sole power to vote or to direct the vote:		159,009 (1)
	ii.	Shared power to vote or to direct the vote:		1,200,001 (2)
	iii.	Sole power to dispose or to direct the disposition of:		159,009 (1)
	iv.	Shared power to dispose or to direct the disposition of:		1,200,001 (2)

 

	(1)	Includes 18,749 shares of Common Stock and 140,260 shares underlying options held by Tsontcho Ianchulev directly that are exercisable within 60 days of the date of this report.
	(2)	Includes (i) 466,667 shares of Common Stock and 280,000 shares of Common Stock underlying options held by PME that are exercisable within 60 days of the date of this report and (ii) 453,334 shares of Common Stock held by PME Investor. Tsontcho Ianchulev is one of the two principal shareholders of PME and a manager of PME Investor and, therefore, may be deemed to have beneficial ownership of the shares of Common Stock held by PME and PME Investor.

 

 

Page 7 of 8 Pages

 

Curt LaBelle

a)		Amount beneficially owned: 1,283,335		Percentage: 11.9%
b)		Number of shares to which the Reporting Person has:
	i.	Sole power to vote or to direct the vote:		83,334 (1)
	ii.	Shared power to vote or to direct the vote:		1,200,001 (2)
	iii.	Sole power to dispose or to direct the disposition of:		83,334 (1)
	iv.	Shared power to dispose or to direct the disposition of:		1,200,001 (2)

 

	(1)	Includes 10,000 shares of common stock and 73,334 shares underlying options held by Curt LaBelle directly that are exercisable within 60 days of the date of this report.
	(2)	Includes (i) 466,667 shares of common stock and 280,000 shares of common stock underlying options held by PME that are exercisable within 60 days of the date of this report and (ii) 453,334 shares of common stock held by PME Investor. Curt LaBelle is one of the two principal shareholders of PME and a manager of PME Investor and, therefore, may be deemed to have beneficial ownership of the shares of common stock held by PME and PME Investor.

 

Private Medical Equity, Inc.

a)		Amount beneficially owned: 746,667		Percentage: 7.3%
b)		Number of shares to which the Reporting Person has:
	i.	Sole power to vote or to direct the vote:		746,667 (1)
	ii.	Shared power to vote or to direct the vote:		0
	iii.	Sole power to dispose or to direct the disposition of:		746,667 (1)
	iv.	Shared power to dispose or to direct the disposition of:		0

 

(1)

Includes 466,667 shares of common stock and 280,000 shares of common stock underlying options held by PME that are exercisable within 60 days of the date of this report.

 

(c) On January 29, 2018, 453,334 shares of Common Stock held by PME Investor were issued to PME Investor upon automatic conversion of the Issuer’s Series A preferred stock at the time of the IPO. In addition, on January 29, 2018, as part of the IPO, Tsontcho Ianchulev and Curt LaBelle each purchased 10,000 shares of Common Stock at a purchase price of $10.00 per share. Except as described herein, the Reporting Person has not effected any transactions of the Issuer’s Common Stock during the 60 days preceding the date of this report.

 

(d) Not applicable.

 

(e) Not applicable.

 

Item 6.

Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

  

On January 4, 2018, in connection with the Issuer’s IPO, Tsontcho Ianchulev and Curt LaBelle each entered into a lock-up agreement with the underwriters of the IPO, pursuant to which each of them agreed that for a period of 180 days after January 24, 2018, or the lock-up period, subject to certain limited exceptions described below, they will not directly or indirectly, without the prior written consent of the underwriters offer for sale, contract to sell, sell, distribute, grant any option, right or warrant to purchase, pledge, hypothecate or otherwise dispose of, directly or indirectly, any shares of the Common Stock (excluding shares purchased in the IPO) or any securities convertible into, or exercisable or exchangeable for, shares of the Common Stock. Certain limited transfers are permitted during the lock-up period if the transferee agrees to these lock-up restrictions.

 

The descriptions of the lock-up agreements are qualified in its entirety by reference to the full text of such agreements, a copy of which are filed as Exhibits 10.1 and 10.2 to this report and are incorporated by reference herein.  

  

Item 7.

Material to be Filed as Exhibits

 

Exhibit 10.1		Lock-Up Agreement between Tsontcho Ianchulev and the underwriters dated January 4, 2018
Exhibit 10.2		Lock-Up Agreement between Curt LaBelle and the underwriters dated January 4, 2018
Exhibit 99.1		Joint Filing Agreement by and among the Reporting Persons

 

 

Page 8 of 8 Pages

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

Date: February 14, 2018		/s/ Tsontcho Ianchulev
		Tsontcho Ianchulev

 

Date: February 14, 2018		/s/ Curt LaBelle
		Curt LaBelle

 

Date: February 14, 2018	Private Medical Equity, Inc.
	By:	/s/ Tsontcho Ianchulev
		Name: Tsontcho Ianchulev
		Title: Member

 

 

 

Exhibit 10.1

 

Lock-Up Agreement

 

January 4, 2018

 

Ladenburg Thalmann & Co. Inc.

570 Lexington Avenue

11^th Floor

New York, New York 10022

 

Re:       Public Offering of Eyenovia, Inc.

 

Ladies and Gentlemen:

 

The undersigned, an officer, director or holder of common stock, par value $0.0001 per share (“Common Stock”), or rights to acquire Common Stock, of Eyenovia, Inc. (the “Company”), understands that Ladenburg Thalmann & Co. Inc., as the underwriter (“you” or “your”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, providing for the public offering (the “Offering”) of shares of Common Stock (the “Securities”), pursuant to a registration statement on Form S-1 (as amended, the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “SEC”).

 

In consideration of the Company’s and your intention to enter into the Underwriting Agreement and to proceed with the Offering of the Securities, and for other good and valuable consideration, receipt of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company and you that, without your prior written consent, the undersigned will not, during the period commencing from the date of the preliminary prospectus and ending one hundred eighty (180) days (the “Lock-Up Period”) after the date of the final prospectus relating to the Offering (the “Prospectus”), directly or indirectly: (1) offer, pledge, assign, encumber, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock owned either of record or beneficially or may be deemed to be beneficially owned (as defined in Rule 13d-3(a)(2) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, or (4) publicly announce an intention to do any of the foregoing.

 

 

The restrictions in the immediately preceding paragraph shall not apply to:

 

(a) the sale of the Securities to be sold pursuant to the Underwriting Agreement;

 

(b) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift, or gifts, (ii) to an immediate family member or a trust for the direct or indirect benefit of the undersigned or such immediate family member of the undersigned, (iii) by will or intestacy, or (iv) pursuant to a qualified domestic order or in connection with a divorce settlement; provided, that the transferee shall sign and deliver a letter agreement substantially in the form of this letter agreement prior to such transfer;

 

(c) equity securities issued pursuant to the Company’s equity incentive plans in effect as of the date hereof or pursuant to bona fide equity incentive plans hereafter established, and the exercise of options granted under the Company’s equity incentive plans; provided that the shares of Common Stock delivered upon such exercise are subject to the restrictions set forth in the immediately preceding paragraph;

 

(d) transfers of shares of Common Stock to the Company (i) as forfeitures to satisfy tax withholding and remittance obligations of the undersigned in connection with the vesting or exercise of equity awards granted pursuant to the Company’s equity incentive plans, or (ii) pursuant to a net exercise or cashless exercise by the stockholder of outstanding equity awards pursuant to the Company’s equity incentive plans;

 

(e) the establishment of a trading plan that complies with Rule 10b5-1 under the Exchange Act; provided, however, that (i) the restrictions shall apply in full force to sales or other dispositions pursuant to such Rule 10b5-1 plan during the Lock-Up Period and (ii) no public announcement or disclosure of entry into such Rule 10b5-1 plan is made or required to be made, including any filing with the SEC under Section 13 or Section 16 of the Exchange Act;

 

(f) transfers of shares of Common Stock to a charity or education institution;

 

(g) if the undersigned is or, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any transfers of Common Stock to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be;

 

(h) transactions relating to the Common Stock acquired in open market transactions after the completion of the Offering; and

 

(i) the transfer of Common Stock pursuant to a change of control of the Company after the Offering, that has been approved by the independent members of the Company’s board of directors, provided, that in the event that such change of control is not completed, the Securities owned by the undersigned shall remain subject to the restrictions herein. For purposes of this clause (i), “change of control” shall mean the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Securities the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the voting capital stock of the Company;

 

 

provided that, in the case of clauses (b), (f), (g) and (h), no filing under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock or other public announcement shall be required or voluntarily made by the undersigned or the recipient during the Lock-Up Period (other than a filing on Form 5 and any required Schedule 13G (or 13G/A) or Form 13F filing); provided further that, in the case of any transfer or distribution pursuant to clauses (b), (f) and (g), (1) the recipient agrees to be bound in writing by the same restrictions set forth herein for the duration of the Lock-Up Period and (2) any such transfer shall not involve a disposition for value.

 

In furtherance of the foregoing, the Company and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this letter agreement.

 

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this letter agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

 

The undersigned understands that the undersigned shall be released from all obligations under this letter agreement upon the earlier to occur of: (i) the Registration Statement does not become effective and the Company files with the SEC a notice of withdrawal of the Registration Statement pursuant to Rule 477 of the Securities Act of 1933, as amended, (ii) the Underwriting Agreement does not become effective by February 28, 2018, or, if after becoming effective, the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, or (iii) the Company provides written notice to you that the Company does not intend to proceed with the Offering.

 

The undersigned, whether or not participating in the Offering, understands that you are entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this letter agreement.

 

If the undersigned is an officer or director of the Company, (i) you agree that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, you will notify the Company of the impending release or waiver, and (ii) the Company shall agree in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver granted by you hereunder with respect to any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

 

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.

 

 

 

	Very truly yours,
	Signature: /s/Tsontcho Ianchulev
	Print Name: Tsontcho Ianchulev

 

 

Exhibit 10.2

 

Lock-Up Agreement

 

January 4, 2018

 

Ladenburg Thalmann & Co. Inc.

570 Lexington Avenue

11^th Floor

New York, New York 10022

 

Re:       Public Offering of Eyenovia, Inc.

 

Ladies and Gentlemen:

 

The undersigned, an officer, director or holder of common stock, par value $0.0001 per share (“Common Stock”), or rights to acquire Common Stock, of Eyenovia, Inc. (the “Company”), understands that Ladenburg Thalmann & Co. Inc., as the underwriter (“you” or “your”), proposes to enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Company, providing for the public offering (the “Offering”) of shares of Common Stock (the “Securities”), pursuant to a registration statement on Form S-1 (as amended, the “Registration Statement”) to be filed with the Securities and Exchange Commission (the “SEC”).

 

In consideration of the Company’s and your intention to enter into the Underwriting Agreement and to proceed with the Offering of the Securities, and for other good and valuable consideration, receipt of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company and you that, without your prior written consent, the undersigned will not, during the period commencing from the date of the preliminary prospectus and ending one hundred eighty (180) days (the “Lock-Up Period”) after the date of the final prospectus relating to the Offering (the “Prospectus”), directly or indirectly: (1) offer, pledge, assign, encumber, announce the intention to sell, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock owned either of record or beneficially or may be deemed to be beneficially owned (as defined in Rule 13d-3(a)(2) of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, or (3) make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock, or (4) publicly announce an intention to do any of the foregoing.

 

 

The restrictions in the immediately preceding paragraph shall not apply to:

 

(a) the sale of the Securities to be sold pursuant to the Underwriting Agreement;

 

(b) transfers of shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock (i) as a bona fide gift, or gifts, (ii) to an immediate family member or a trust for the direct or indirect benefit of the undersigned or such immediate family member of the undersigned, (iii) by will or intestacy, or (iv) pursuant to a qualified domestic order or in connection with a divorce settlement; provided, that the transferee shall sign and deliver a letter agreement substantially in the form of this letter agreement prior to such transfer;

 

(c) equity securities issued pursuant to the Company’s equity incentive plans in effect as of the date hereof or pursuant to bona fide equity incentive plans hereafter established, and the exercise of options granted under the Company’s equity incentive plans; provided that the shares of Common Stock delivered upon such exercise are subject to the restrictions set forth in the immediately preceding paragraph;

 

(d) transfers of shares of Common Stock to the Company (i) as forfeitures to satisfy tax withholding and remittance obligations of the undersigned in connection with the vesting or exercise of equity awards granted pursuant to the Company’s equity incentive plans, or (ii) pursuant to a net exercise or cashless exercise by the stockholder of outstanding equity awards pursuant to the Company’s equity incentive plans;

 

(e) the establishment of a trading plan that complies with Rule 10b5-1 under the Exchange Act; provided, however, that (i) the restrictions shall apply in full force to sales or other dispositions pursuant to such Rule 10b5-1 plan during the Lock-Up Period and (ii) no public announcement or disclosure of entry into such Rule 10b5-1 plan is made or required to be made, including any filing with the SEC under Section 13 or Section 16 of the Exchange Act;

 

(f) transfers of shares of Common Stock to a charity or education institution;

 

(g) if the undersigned is or, directly or indirectly, controls a corporation, partnership, limited liability company or other business entity, any transfers of Common Stock to any shareholder, partner or member of, or owner of similar equity interests in, the undersigned, as the case may be;

 

(h) transactions relating to the Common Stock acquired in open market transactions after the completion of the Offering; and

 

(i) the transfer of Common Stock pursuant to a change of control of the Company after the Offering, that has been approved by the independent members of the Company’s board of directors, provided, that in the event that such change of control is not completed, the Securities owned by the undersigned shall remain subject to the restrictions herein. For purposes of this clause (i), “change of control” shall mean the consummation of any bona fide third party tender offer, merger, consolidation or other similar transaction made to all holders of Securities the result of which is that any “person” (as defined in Section 13(d)(3) of the Exchange Act), or group of persons, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 of the Exchange Act) of more than 50% of the voting capital stock of the Company;

 

 

provided that, in the case of clauses (b), (f), (g) and (h), no filing under Section 13 or Section 16(a) of the Exchange Act reporting a reduction in beneficial ownership of shares of Common Stock or other public announcement shall be required or voluntarily made by the undersigned or the recipient during the Lock-Up Period (other than a filing on Form 5 and any required Schedule 13G (or 13G/A) or Form 13F filing); provided further that, in the case of any transfer or distribution pursuant to clauses (b), (f) and (g), (1) the recipient agrees to be bound in writing by the same restrictions set forth herein for the duration of the Lock-Up Period and (2) any such transfer shall not involve a disposition for value.

 

In furtherance of the foregoing, the Company and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this letter agreement.

 

The undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this letter agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

 

The undersigned understands that the undersigned shall be released from all obligations under this letter agreement upon the earlier to occur of: (i) the Registration Statement does not become effective and the Company files with the SEC a notice of withdrawal of the Registration Statement pursuant to Rule 477 of the Securities Act of 1933, as amended, (ii) the Underwriting Agreement does not become effective by February 28, 2018, or, if after becoming effective, the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, or (iii) the Company provides written notice to you that the Company does not intend to proceed with the Offering.

 

The undersigned, whether or not participating in the Offering, understands that you are entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this letter agreement.

 

If the undersigned is an officer or director of the Company, (i) you agree that, at least three (3) business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of shares of Common Stock, you will notify the Company of the impending release or waiver, and (ii) the Company shall agree in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two (2) business days before the effective date of the release or waiver. Any release or waiver granted by you hereunder with respect to any such officer or director shall only be effective two (2) business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.

 

 

This letter agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws principles thereof.

 

 

	Very truly yours,
	Signature: /s/ Curt LaBelle
	Print Name: Curt LaBelle

 

 

 

Exhibit 99.1

  

JOINT FILING AGREEMENT

 

AGREEMENT dated as of February 14, 2018, by and between Tsontcho Ianchulev, Curt LaBelle and Private Medical Equity, Inc., a Nevada corporation (together, the “Parties”).

 

Each Party hereto represents to the other Party that it is eligible to use Schedule 13D to report its beneficial ownership of common stock, $0.0001 par value per share, of Eyenovia Inc. Each Party hereto agrees that the Schedule 13D, dated February 14, 2018, relating to such beneficial ownership, is filed on behalf of each of them.

 

Each of the Parties agrees to be responsible for the timely filing of the Schedule 13D and any and all amendments thereto and for the completeness and accuracy of the information concerning itself contained in the Schedule 13D, and the other Parties to the extent it knows or has reason to believe that any information about the other Parties is inaccurate.

  

Date: February 14, 2018		/s/ Tsontcho Ianchulev
		Tsontcho Ianchulev

 

Date: February 14, 2018		/s/ Curt LaBelle
		Curt LaBelle

 

Date: February 14, 2018	Private Medical Equity, Inc.
	By:	/s/ Tsontcho Ianchulev
		Name: Tsontcho Ianchulev
		Title: Member