View:
United States securities and exchange commission logo
May 5, 2020
Tsontcho Ianchulev
Chief Executive Officer
Eyenovia, Inc.
295 Madison Avenue, Suite 2400
New York, New York 10017
Re: Eyenovia, Inc.
Registration
Statement on Form S-3
Filed April 22,
2020
File No. 333-237790
Dear Mr. Ianchulev:
We have limited our review of your registration statement to
those issues we have
addressed in our comments. In some of our comments, we may ask you to
provide us with
information so we may better understand your disclosure.
Please respond to this letter by amending your registration
statement and providing the
requested information. If you do not believe our comments apply to your
facts and
circumstances or do not believe an amendment is appropriate, please tell
us why in your
response.
After reviewing any amendment to your registration statement and
the information you
provide in response to these comments, we may have additional comments.
Registration Statement on Form S-3 filed on April 22, 2020, file no.
333-237790
Exhibit 5.1, Opinion of Wyrick Robbins, page II-1
1. Please revise your
legality opinion to differentiate between shares currently outstanding,
and those yet to be
issued. With respect to the 2,675,293 shares registered for resale
currently outstanding,
your opinion should state that the shares "are" and not "will be"
legally issued, fully
paid, and non-assessable. Please refer to Staff Legal Bulletin 19,
Legality and Tax
Opinions, Section II.2.h.
General
2. We note that Article X
of your Third Amended and Restated Certificate of Incorporation
provides for the Court
of Chancery of the State of Delaware as the exclusive forum for
Tsontcho Ianchulev
Eyenovia, Inc.
May 5, 2020
Page 2
certain litigation, including any "derivative action." Please disclose
whether this provision
applies to actions arising under the Securities Act or Exchange Act. In
that regard, we note
that Section 27 of the Exchange Act creates exclusive federal
jurisdiction over all suits
brought to enforce any duty or liability created by the Exchange Act or
the rules and
regulations thereunder, and Section 22 of the Securities Act creates
concurrent jurisdiction
for federal and state courts over all suits brought to enforce any duty
or liability created by
the Securities Act or the rules and regulations thereunder. If the
provision applies to
Securities Act claims, please also revise your prospectus to state that
there is uncertainty
as to whether a court would enforce such provision and that investors
cannot waive
compliance with the federal securities laws and the rules and regulations
thereunder. If
this provision does not apply to actions arising under the Securities Act
or Exchange Act,
please also ensure that the exclusive forum provision in the governing
documents states
this clearly, or tell us how you will inform investors in future filings
that the provision
does not apply to any actions arising under the Securities Act or
Exchange Act.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
Please contact Paul Fischer, Staff Attorney, at 202-551-3415 or Celeste
M. Murphy,
Legal Branch Chief, at 202-551-3257 with any questions.
Sincerely,
FirstName LastNameTsontcho Ianchulev
Division of
Corporation Finance
Comapany NameEyenovia, Inc.
Office of Life
Sciences
May 5, 2020 Page 2
cc: Lorna Knick, Esq.
FirstName LastName