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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13
or 15(d)
of the Securities Exchange
Act of 1934
Date of Report (Date
of earliest event reported): June 25, 2025
EYENOVIA, INC.
(Exact Name of Registrant
as Specified in its Charter)
| Delaware |
|
001-38365 |
|
47-1178401 |
(State or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS Employer
Identification No.) |
23461 South Pointe Drive, Suite 390
Laguna Hills, CA
92653
(Address of Principal Executive Offices, and
Zip Code)
(833)
393-6684
Registrant’s Telephone Number, Including
Area Code
Check the appropriate box below if the Form 8-K
filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under
the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section
12(b) of the Act:
| (Title of each class) |
|
(Trading
Symbol) |
|
(Name of each exchange
on which registered) |
| Common stock, par value $0.0001 per share |
|
EYEN |
|
The Nasdaq Stock Market
(Nasdaq Capital Market) |
Indicate by check mark whether the registrant
is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities
Exchange Act of 1934 (17 CFR §240.12b-2).
Emerging
growth company ¨
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 7.01.
Regulation FD Disclosure
On June
25, 2025, Eyenovia, Inc. (“Eyenovia” or the “Company”) issued a press release announcing a co-branded Hyperliquid
validator with Kinetiq, a leading liquid staking protocol built natively for the Hyperliquid ecosystem. A copy of the press release is
furnished as Exhibit 99.1 to this Form 8-K.
The information
in Item 7.01 of this Form 8-K, including Exhibit 99.1 attached hereto, shall not be deemed “filed” for purposes of Section
18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that
section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange
Act, except as expressly set forth by specific reference in such a filing.
Item
8.01. Other Events
In connection with the Company’s launch
of its new cryptocurrency treasury strategy, including its intention to implement a HYPE staking program, the Company is supplementing
the business description and risk factors previously disclosed in its Annual Report on Form 10-K for the year ended December 31, 2024,
as amended, and as supplemented by the Company’s subsequent periodic filings, with the following:
Business Overview
Eyenovia, Inc. is a pioneering digital ophthalmic
technology company and the first U.S. publicly listed company building a long-term strategic treasury of Hyperliquid’s native token,
HYPE. With this dual focus, Eyenovia continues to aim to execute on its vision to revolutionize topical eye treatment while providing
its shareholders with simplified exposure to the Hyperliquid ecosystem, one of the fastest-growing, highest revenue-generating blockchains
in the world. Eyenovia’s new strategy is designed to allow shareholders to benefit from a gradually compounding exposure to HYPE,
both from its native staking yield and additional revenues generated from its unique on-chain utility.
HYPE Treasury
Hyperliquid is a layer one (L1) blockchain engineered
for transparent high-frequency finance. The blockchain hosts fully onchain perpetual futures and spot order books, with every order, cancel,
trade and liquidation occurring within 70 millisecond block times and offering up to 200,000 transactions per second (“TPS”),
resulting in near-instant trade settlement. The Hyperliquid blockchain also hosts the HyperEVM, a general-purpose smart contract platform
that, like Ethereum, supports permissionless decentralized financial applications.
Hyperliquid supports non-custodial trading via
its performant HyperCore order books, with perpetual futures trading for a range of digital assets including Bitcoin (BTC), Ether (ETH),
Ripple (XRP), Solana (SOL) and Sui (SUI) driving its utilization. Perpetual futures are a type of cryptocurrency derivative contract
that allows traders to speculate on the price of an asset without owning the underlying asset itself. Unlike traditional futures contracts,
perpetual futures have no expiration date, allowing traders to hold positions indefinitely as long as they meet margin requirements. Hyperliquid
utilizes a traditional order book system. This approach allows traders to place bids and asks for various assets, more akin to a centralized
cryptocurrency exchange than other decentralized exchanges that rely on automated market makers to fulfill orders. The Hyperliquid blockchain
is available to any potential user with a compatible cryptocurrency wallet such as MetaMask, Phantom, and Coinbase Wallet. However, Hyperliquid
interface operators can choose to block persons in certain jurisdictions or sanctioned wallets as required via solutions such as geoblocking and address screening.
HYPE is the native token of Hyperliquid. The total
supply of HYPE is 1 billion, with 31% of the supply being issued in November 2024. 38.88% of the total supply was reserved for future
community emissions. HYPE serves multiple purposes: users can stake HYPE to reduce their trading fees, use it to conduct transactions
on the HyperEVM, and even use it as collateral on various DeFi applications. In addition, Hyperliquid has a unique network mechanism that
autonomously purchases and removes HYPE tokens from circulation. This is done by using the trading fees generated on the network’s
order books to buy back available HYPE: approximately 97% of daily fees are allocated to this mechanism, which serves as a consistent
“marginal buyer” for the token. As of June 2025, more than 25 million HYPE has been removed from circulation and the
token has become the 12th-largest cryptocurrency by market capitalization.
Additionally, HYPE has certain governance rights
with respect to the Hyperliquid blockchain. The Hyperliquid L1 is a proof-of-stake blockchain, wherein validators
that have staked the threshold number of HYPE are selected to produce blocks and will receive rewards when they successfully validate
blocks. Holders of HYPE can delegate to validators who then are able to vote on certain decisions regarding the platform, such as the
listing and de-listing of new markets. Any holder of HYPE can delegate HYPE to a validator to earn staking rewards, should the validator
successfully participate in network consensus. Staked HYPE is locked until un-staked, subject to a seven day un-staking queue before HYPE
is released back to the user.
As part of its broader onchain engagement strategy,
the Company recently announced a co-branded Hyperliquid validator with Kinetiq, a liquid staking protocol built natively for the Hyperliquid
ecosystem. Validator operations are further supported by infrastructure provided by Pier Two, an institutional staking services provider.
By running its own validator, the Company can directly access HYPE staking yield in addition to supporting Hyperliquid’s network
stability and security. Staked HYPE can be delegated to user accounts which reduces their trading fees or increases the revenue share
from referring new users, both of which could serve as revenue opportunities for the Company. Specifically, the validator potentially enables the
Company to create unique financial products built around the demand for these network benefits from those who do not have access to HYPE.
HYPE can also be deployed into the HyperEVM for
various strategies such as lending and liquidity provisioning. This is expected to enable the Company to support various applications
built on Hyperliquid and in return, potentially earn yield that can be compounded into its overall HYPE acquisition strategy.
By prudently building and deploying a treasury
of HYPE, the Company believes that it can rapidly accelerate the growth of the Hyperliquid ecosystem and further its adoption, potentially
creating a powerful flywheel effect that may drive platform usage, increase protocol value and strengthen the long-term position of both
the Hyperliquid ecosystem and the Company.
The Optejet
Eyenovia is also developing the proprietary Optejet
User Filled Device (“UFD”) that is designed to work with a variety of topical ophthalmic liquids, including artificial tears
and lens rewetting products. The Optejet is especially useful in chronic front-of-the-eye diseases due to its ease of use, enhanced safety
and tolerability, and potential for superior compliance versus standard eye drops. Together, these benefits may result in higher treatment
compliance and better outcomes for patients and providers.
The ergonomic and functional design of the Optejet
allows for horizontal drug delivery and eliminates the need to tilt the head back or the manual dexterity to squeeze a bottle to administer
medications. Drug is delivered in a microscopic array of droplets that is comfortable and matches the amount of fluid that the front of
the eye can hold. The precise delivery of a low-volume columnar spray by the Optejet device helps ensure instillation success while minimizing
contamination risk with a non-protruding nozzle and self-closing shutter. In clinical trials, the Optejet has demonstrated that its targeted
delivery achieves a high rate of successful administration, with 98% of sprays being accurately delivered upon first attempt compared
to the established rate reported with traditional eye drops of approximately 50%.
A more physiologically appropriate volume of medication
in the range of seven to ten microliters is delivered by the Optejet, which is approximately one-fifth of the 35 to 50 microliter dose
typically delivered in a single eye drop. Lower volume of medication exposes the ocular surface to less active ingredients and preservatives,
potentially reducing ocular stress and surface damage and improving tolerability. The lower volume also minimizes the potential for drug
to enter systemic circulation, with the goal of avoiding some common side effects that are related to overdosing of the eye.
We anticipate registering the second generation
of the Optejet UFD as a liquid drug delivery device, based on our experience with MydCombi®. MydCombi was the only Food and Drug
Administration-approved fixed combination of the two leading mydriatic agents, tropicamide and phenylephrine, in the United States delivered
with technology that is nearly identical to the first generation of the Optejet UFD.
Risk Factors
HYPE is a highly volatile asset, and fluctuations
in the price of HYPE may influence our financial results and the market price of our listed securities.
Our financial results and the market price of
our listed securities would be adversely affected, and our business and financial condition would be negatively impacted, if the price
of HYPE decreased substantially, including as a result of:
| · | decreased user and investor confidence in HYPE, including due to the various factors described herein; |
| · | investment and trading activities such as (i) trading activities of highly active retail and institutional
users, speculators and investors or (ii) actual or expected significant dispositions of HYPE by large holders, including the expected
liquidation of digital assets seized by governments or associated with entities that have filed for bankruptcy protection, or associated
with tokens vested by the Hyperliquid core team; |
| · | negative publicity, media or social media coverage, or sentiment due to events in or relating to, or perception
of, HYPE, Hyperliquid or the broader digital assets industry; |
| · | changes in consumer preferences and the perceived value or prospects of HYPE or the utility of Hyperliquid; |
| · | competition from other decentralized exchanges or digital assets that exhibit comparable or better speed,
security, scalability or energy efficiency, that feature other more favored characteristics, that are backed by governments, including
the U.S. government, or reserves of fiat currencies, or that represent ownership or security interests in physical assets; |
| · | a decrease in the price of other digital assets, to the extent the decrease in the price of such other
digital assets may cause a decrease in the price of HYPE or adversely affect investor confidence in digital assets generally; |
| · | developments relating to the Hyperliquid blockchain, including (i) changes to the Hyperliquid blockchain
that impact its security, speed, scalability, usability or value, such as changes to the cryptographic security protocol underpinning
the Hyperliquid blockchain, changes to the maximum number of HYPE outstanding, changes to the mutability of transactions, changes relating
to the size of blockchain blocks, and similar changes; (ii) failures to make upgrades to the Hyperliquid blockchain and the Hyperliquid
interface to adapt to security, technological, legal or other challenges; and (iii) changes to the Hyperliquid blockchain that introduce
software bugs, security risks or other elements that adversely affect HYPE; |
| · | disruptions, failures, unavailability, or interruptions in services of trading venues for HYPE; |
| · | the filing for bankruptcy protection by, liquidation of, or market concerns about the financial viability
of digital asset custodians, trading venues, lending platforms, investment funds, or other digital asset industry participants; |
| · | regulatory, legislative, enforcement and judicial actions that adversely affect access to, functionality
of or performance of Hyperliquid and its associated products such as cryptocurrency perpetual futures, the price, ownership, transferability,
trading volumes, legality or public perception of, HYPE or other L1 blockchains, or that adversely affect the operations of or otherwise
prevent digital asset custodians, trading venues, lending platforms or other digital assets industry participants from accessing the Hyperliquid
decentralized exchange and its associated products or operating in a manner that allows them to continue to deliver services to the digital
assets industry; |
| · | transaction congestion and fees associated with processing transactions on the Hyperliquid network; |
| · | macroeconomic changes, such as changes in the level of interest rates and inflation, fiscal and monetary
policies of governments, trade restrictions and fiat currency devaluations; |
| · | developments in mathematics or technology, including in digital computing, algebraic geometry and quantum
computing, that could result in the cryptography used by the Hyperliquid blockchain becoming insecure or ineffective; and |
| · | changes in national and international economic and political conditions, including, without limitation,
federal government policies, trade tariffs and trade disputes, and the adverse impacts attributable to global conflicts, including those
between Russia and Ukraine and in the Middle East. |
Moreover, the price of our listed securities has
been and is likely to continue to be volatile, and with the adoption of our new cryptocurrency treasury strategy, we expect to see additional
volatility in our stock price. In addition, if investors view the value of our listed securities as dependent upon or linked to the value
or change in the value of our HYPE holdings, the price of HYPE may significantly influence the market price of our listed securities.
The price of HYPE has historically been, and is likely to continue to be, volatile.
HYPE and other digital assets are novel
assets and are subject to significant legal and regulatory uncertainty.
HYPE and other digital assets are relatively novel
and are subject to significant uncertainty, which could adversely impact their price. The application of state and federal securities
laws and other laws and regulations to digital assets is unclear in certain respects, and it is possible that regulators in the United
States or foreign countries may interpret or apply existing laws and regulations in a manner that adversely affects the price of HYPE
or the ability of individuals or institutions such as us to own or transfer HYPE.
The U.S. federal government, states, regulatory
agencies, and foreign countries may also enact new laws and regulations, or pursue regulatory, legislative, enforcement or judicial actions,
that could materially impact the price of HYPE or the ability of individuals or institutions such as us to own or transfer HYPE. For example,
within the past several years:
| · | President Trump signed an Executive Order instructing a working group comprised of representatives from
key federal agencies to evaluate measures that can be taken to provide regulatory clarity and certainty built on technology-neutral regulations
for individuals and firms involved in digital assets, including through well-defined jurisdictional regulatory boundaries, and this working
group is required to submit a report with regulatory and legislative proposals on or before July 22, 2025; |
| · | in January 2025, the SEC announced the formation of a “Crypto Task Force,” which was created
to provide clarity on the application of the federal securities laws to the crypto asset market and to recommend policy measures with
respect to digital asset security status, registration and listing of digital asset-based investment vehicles, and digital asset custody,
lending and staking; |
| · | in November 2023, Binance Holdings Ltd. (“Binance”) and its then chief executive officer reached
a settlement with the U.S. Department of Justice, the Commodity Futures Trading Commission, the U.S. Department of Treasury’s Office
of Foreign Asset Control, and the Financial Crimes Enforcement Network to resolve a multi-year investigation by the agencies and a civil
suit brought by the Commodity Futures Trading Commission, pursuant to which Binance agreed to, among other things, pay $4.3 billion in
penalties across the four agencies and to discontinue its operations in the United States; |
| · | in November 2023, the SEC filed a complaint against Payward Inc. and Payward Ventures Inc., together known
as Kraken, alleging, among other claims, that Kraken’s crypto trading platform was operating as an unregistered securities exchange,
broker, dealer and clearing agency; |
| · | in June 2023, the SEC filed complaints against Binance and Coinbase, Inc. (“Coinbase”), and
their respective affiliated entities, relating to, among other claims, assertions that each party was operating as an unregistered securities
exchange, broker, dealer and clearing agency; |
| · | the European Union adopted Markets in Crypto Assets Regulation, a comprehensive digital asset regulatory
framework for the issuance and use of digital assets, like bitcoin; |
| · | in June 2023, the United Kingdom adopted and implemented the Financial Services and Markets Act 2023,
which regulates market activities in “cryptoassets;” and |
| · | in China, the People’s Bank of China and the National Development and Reform Commission have outlawed
cryptocurrency mining and declared all cryptocurrency transactions illegal within the country. |
While the complaint against Coinbase was dismissed
in February 2025, the complaint against Payward Inc. and Payward Ventures Inc. was dismissed with prejudice in March 2025, and the complaint
against Binance was dismissed on May 29, 2025, the SEC or other regulatory agencies may initiate similar actions in the future, which
could materially impact the price of HYPE and our ability to own or transfer HYPE.
It is not possible to predict whether or when
new laws will be enacted that change the legal framework governing digital assets or provide additional authorities to the SEC or other
regulators, or whether or when any other federal, state or foreign legislative bodies will take any similar actions. It is also not possible
to predict the nature of any such additional laws or authorities, how additional legislation or regulatory oversight might impact the
ability of digital asset markets to function, the willingness of financial and other institutions to continue to provide services to the
digital assets industry, or how any new laws or regulations, or changes to existing laws or regulations, might impact the value of digital
assets generally and HYPE specifically. The consequences of any new law or regulation relating to digital assets and digital asset activities
could adversely affect the market price of HYPE, as well as our ability to hold or transact in HYPE, and in turn adversely affect the
market price of our listed securities.
Our HYPE treasury strategy subjects us to
enhanced regulatory oversight.
There has been increasing focus on the extent
to which digital assets can be used to launder the proceeds of illegal activities, fund criminal or terrorist activities, or circumvent
sanctions regimes, including those sanctions imposed in response to the ongoing conflict between Russia and Ukraine. While we have implemented
and maintain policies and procedures reasonably designed to promote compliance with applicable anti-money laundering and sanctions laws
and regulations and take care to only acquire our HYPE through entities subject to anti-money laundering regulation and related compliance
rules in the United States, and are in the process of onboarding a chief compliance officer, if we are found to have purchased any of
our HYPE from bad actors that have used HYPE to launder money or persons subject to sanctions, we may be subject to regulatory proceedings
and any further transactions or dealings in HYPE by us may be restricted or prohibited.
A portion of our HYPE holdings may serve as collateral
securing our outstanding indebtedness, and we may incur additional indebtedness or enter into other financial instruments in the future
that may be collateralized by our HYPE holdings. We may also consider pursuing strategies to create income streams or otherwise generate
funds using our HYPE holdings. These types of HYPE-related transactions are the subject of enhanced regulatory oversight. These and any
other HYPE-related transactions we may enter into, beyond simply acquiring and holding HYPE, may subject us to additional regulatory compliance
requirements and scrutiny, including under federal and state money services regulations, money transmitter licensing requirements and
various commodity and securities laws and regulations.
Additional laws, guidance and policies may be
issued by domestic and foreign regulators following the filing for Chapter 11 bankruptcy protection by FTX, one of the world’s largest
cryptocurrency exchanges, in November 2022. The FTX collapse may have increased regulatory focus on the digital assets industry. Increased
enforcement activity and changes in the regulatory environment, including changing interpretations and the implementation of new or varying
regulatory requirements by the government or any new legislation affecting HYPE, as well as enforcement actions involving or impacting
our trading venues, counterparties and custodians, may impose significant costs or significantly limit our ability to hold and transact
in HYPE.
In addition, private actors that are wary of HYPE
or the regulatory concerns associated with HYPE have in the past taken and may in the future take further actions that may have an adverse
effect on our business or the market price of our listed securities. For example, it is possible that a financial institution could restrict
customers from buying our securities if it were to determine that the value of our securities is closely tied to the performance of HYPE,
signaling a reluctance to facilitate exposure to virtual currencies.
We plan to use a portion of our capital
raised that is not required to provide working capital for our ongoing operations to invest in HYPE, which may adversely affect our financial
results and the market price of our securities.
We plan to use a portion of our capital raised
that is not required to provide working capital for our ongoing operations to invest in HYPE. The price of HYPE has been subject to dramatic
price fluctuations and is highly volatile. Moreover, digital assets are relatively novel, and the application of securities laws and other
regulations to such assets is unclear in many respects. It is possible that regulators may interpret laws in a manner that adversely affects
the liquidity or value of our HYPE holdings.
Any decrease in the fair value of HYPE below our
carrying value for such assets could require us to incur an impairment charge, and such a charge could be material to our financial results
for the applicable reporting period, which may create significant volatility in our reported earnings. Any decrease in reported earnings
or increased volatility of such earnings could have a material adverse effect on the market price of our securities. In addition, the
application of generally accepted accounting principles in the United States with respect to digital assets remains uncertain in some
respects, and any future changes in the manner in which we account for our HYPE holdings could have a material adverse effect on our financial
results and the market price of our securities.
In addition, if investors view the value of our
securities as dependent upon or linked to the value or change in the value of our HYPE holdings, the price of such digital assets may
significantly influence the market price of our securities.
Absent federal regulations, there is a possibility
that HYPE may be classified as a “security.” Any classification of HYPE as a “security” would subject us to additional
regulation and could materially impact the operation of our business.
Neither the SEC nor any other U.S. federal or
state regulator has publicly stated whether they believe that HYPE is a “security.” Despite the Executive Order titled “Strengthening
American Leadership in Digital Financial Technology,” which includes as an objective, “protecting and promoting the ability
of individual citizens and private sector entities alike to access and … to maintain self-custody of digital assets,” HYPE
has not yet been classified with respect to U.S. federal securities laws. Therefore, while (for the reasons discussed below) we believe
that HYPE is not a “security” within the meaning of the U.S. federal securities laws, and registration of the Company under
the Investment Company Act of 1940, as amended (the “Investment Company Act”) is therefore not required under the applicable
securities laws, we acknowledge that a regulatory body or federal court may determine otherwise. Our belief, even if reasonable under
the circumstances, would not preclude legal or regulatory action based on such a finding that HYPE is a “security” which would
require us to register as an investment company under the Investment Company Act.
We have also implemented a process for analyzing
the U.S. federal securities law status of HYPE and other cryptocurrencies as guidance and case law evolve. As part of our U.S. federal
securities law analytical process, we take into account a number of factors, including the various definitions of “security”
under U.S. federal securities laws and federal court decisions interpreting the elements of these definitions, such as the U.S. Supreme
Court’s decisions in the Howey and Reves cases, as well as court rulings, reports, orders, press releases, public
statements, and speeches by the SEC Commissioners and SEC Staff providing guidance on when a digital asset or a transaction to which a
digital asset may relate may be a security for purposes of U.S. federal securities laws. Our position that HYPE is not a “security”
is premised, among other reasons, on our conclusion that HYPE does not meet the elements of the Howey test. Among the reasons for
our conclusion that HYPE is not a security is that holders of HYPE do not have a reasonable expectation of profits from the efforts of
Hyperliquid, the Hyperliquid Foundation or any other person, entity or group of persons in respect of their holding of HYPE. Also, HYPE
ownership does not guarantee the right to receive any interest, rewards, or other returns. We believe that HYPE is a commodity due to
its utility for gas.
We acknowledge, however, that the SEC, a federal
court or another relevant entity could take a different view. Application of securities laws to the specific facts and circumstances of
digital assets is complex and subject to change. Our conclusion, even if reasonable under the circumstances, would not preclude legal
or regulatory action based on a finding that HYPE, or any other digital asset we might hold is a “security.” As such, we are
at risk of enforcement proceedings and lawsuits against us, which could result in potential injunctions, cease-and-desist orders, fines
and penalties if HYPE was determined to be a security by a regulatory body or a court. Such developments would adversely affect our business,
results of operations, financial condition, and prospects.
If we were deemed to be an investment company
under the Investment Company Act, applicable restrictions likely would make it impractical for us to continue segments of our business
as currently contemplated.
Under Sections 3(a)(1)(A) and (C) of the Investment
Company Act, a company generally will be deemed to be an “investment company” if (i) it is or holds itself out as being engaged
primarily, or proposes to engage primarily, in the business of investing, reinvesting, or trading in securities or (ii) it engages or
proposes to engage in the business of investing, reinvesting, owning, holding, or trading in securities, and it owns or proposes to acquire
investment securities having a value exceeding 40% of the value of its total assets (exclusive of U.S. government securities and cash
items) on an unconsolidated basis. Rule 3a-1 under the Investment Company Act generally provides that notwithstanding the test described
in clause (ii) in the previous sentence, an entity will not be deemed to be an “investment company” for purposes of the Investment
Company Act if no more than 45% of the value of its assets (exclusive of U.S. government securities and cash items) consists of, and no
more than 45% of its net income after taxes (for the last four fiscal quarters combined) is derived from, securities other than U.S. government
securities, securities issued by employees’ securities companies, securities issued by qualifying majority owned subsidiaries of
such entity, and securities issued by qualifying companies that are controlled primarily by such entity.
We do not believe that we are an “investment
company” as such term is defined in either Section 3(a)(1)(A) or Section 3(a)(1)(C) of the Investment Company Act since we believe
HYPE is not an investment security. With respect to Section 3(a)(1)(A), we do not hold ourselves out as being engaged primarily or propose
to engage primarily in the business of investing, reinvesting, or trading in securities within the meaning of such section. With respect
to Section 3(a)(1)(C), we believe we satisfy the elements of Rule 3a-1 and therefore are deemed not to be an investment company under,
and we intend to conduct our operations such that we will not be deemed an investment company under, Section 3(a)(1)(C).
HYPE and other digital assets, as well as new
business models and transactions enabled by blockchain technologies, present novel interpretive questions under the Investment Company
Act. There is a risk that assets or arrangements that we have concluded are not securities could be deemed to be securities by the SEC
or another authority for purposes of the Investment Company Act, which would increase the percentage of securities held by us for Investment
Company Act purposes. The SEC has requested information from a number of participants in the digital assets’ ecosystem, regarding
the potential application of the Investment Company Act to their businesses. For example, in an action unrelated to the Company, in February
2022, the SEC issued a cease-and-desist order under the Investment Company Act to BlockFi Lending LLC (“BlockFi”), in which
the SEC alleged that BlockFi was operating as an unregistered investment company because it issued securities and also held more than
40% of its total assets, excluding cash, in investment securities, including the loans of digital assets made by BlockFi to institutional
borrowers.
If we were deemed to be an investment company,
Rule 3a-2 under the Investment Company Act is a safe harbor that provides a one-year grace period for transient investment companies that
have a bona fide intent to be engaged primarily, as soon as is reasonably possible (in any event by the termination of such one-year period),
in a business other than that of investing, reinvesting, owning, holding or trading in securities, with such intent evidenced by the company’s
business activities and an appropriate resolution of its board of directors. The grace period is available not more than once every three
years and runs from the earlier of (i) the date on which the issuer owns securities and/or cash having a value exceeding 50% of the issuer’s
total assets on either a consolidated or unconsolidated basis or (ii) the date on which the issuer owns or proposes to acquire investment
securities having a value exceeding 40% of the value of such issuer’s total assets (exclusive of U.S. government securities and
cash items) on an unconsolidated basis. Accordingly, the grace period may not be available at the time that we seek to rely on Rule 3a-2;
however, Rule 3a-2 is a safe harbor and we may rely on any exemption or exclusion from investment company status available to us under
the Investment Company Act at any given time. Furthermore, reliance on Rule 3a-2, Section 3(a)(1)(C), or Rule 3a-1 could require us to
take actions to dispose of securities, limit our ability to make certain investments or enter into joint ventures, or otherwise limit
or change our service offerings and operations. If we were to be deemed an investment company in the future, restrictions imposed by the
Investment Company Act — including limitations on our ability to issue different classes of stock and equity compensation to directors,
officers, and employees and restrictions on management, operations, and transactions with affiliated persons — likely would make
it impractical for us to continue our business as contemplated, and could have a material adverse effect on our business, results of operations,
financial condition, and prospects.
HYPE is created and transmitted through
the operations of the peer-to-peer Hyperliquid network, a decentralized network of computers running software following the HYPE protocol.
If the Hyperliquid network is disrupted or encounters any unanticipated difficulties, the value of HYPE could be negatively impacted.
If the Hyperliquid network is disrupted or encounters
any unanticipated difficulties, then the processing of transactions on the Hyperliquid network may be disrupted, which in turn may prevent
us from depositing or withdrawing HYPE from our accounts with our custodian or otherwise effecting HYPE transactions. Such disruptions
could include, for example: the price volatility of HYPE; the insolvency, business failure, interruption, default, failure to perform,
security breach, or other problems of participants, custodians or others; the closing of HYPE trading platforms due to fraud, failures,
security breaches or otherwise; or network outages or congestion, power outages, or other problems or disruptions affecting the Hyperliquid
network.
In addition, digital asset validating operations
can consume significant amounts of electricity, which may have a negative environmental impact and give rise to public opinion against
allowing, or government regulations restricting, the use of electricity for validating operations. Additionally, validators may be forced
to cease operations during an electricity shortage or power outage.
We face risks relating to the custody of
our HYPE, including the loss or destruction of private keys required to access our HYPE and cyberattacks or other data loss relating to
our HYPE, including smart contract related losses and vulnerabilities.
We will hold our HYPE with regulated custodians
that have duties to safeguard our private keys. Our custodial services contracts will not restrict our ability to reallocate our HYPE
among our custodians, and our HYPE holdings may be concentrated with a single custodian from time to time. In light of the significant
amount of HYPE we anticipate that we will hold, we expect to continually seek to engage additional custodians to achieve a greater degree
of diversification in the custody of our HYPE as the extent of potential risk of loss is dependent, in part, on the degree of diversification.
However, multiple custodians may utilize similar wallet infrastructure, cloud service providers or software systems, which could increase
systemic technology risk.
If there is a decrease in the availability of
digital asset custodians that we believe can safely custody our HYPE, for example, due to regulatory developments or enforcement actions
that cause custodians to discontinue or limit their services in the United States, we may need to enter into agreements that are less
favorable or take other measures to custody our HYPE, and our ability to seek a greater degree of diversification in the use of custodial
services would be materially adversely affected. While we will conduct due diligence on our custodians and any smart contract platforms
we may use, there can be no assurance that such diligence will uncover all risks, including operational deficiencies, hidden vulnerabilities
or legal noncompliance.
Any insurance that may cover losses of our HYPE
holdings may cover none or only a small fraction of the value of the entirety of our HYPE holdings, and there can be no guarantee that
such insurance will be maintained as part of the custodial services we have or that such coverage will cover losses with respect to our
HYPE. Moreover, our use of custodians exposes us to the risk that the HYPE our custodians hold on our behalf could be subject to insolvency
proceedings and we could be treated as a general unsecured creditor of the custodian, inhibiting our ability to exercise ownership rights
with respect to such HYPE. Any loss associated with such insolvency proceedings is unlikely to be covered by any insurance coverage we
may maintain related to our HYPE. The legal framework governing digital asset ownership and rights in custodial or insolvency contexts
remains uncertain and continues to evolve, which could result in unexpected losses, protracted recovery processes or adverse treatment
in insolvency proceedings.
HYPE is controllable only by the possessor of
both the unique public key and private key(s) relating to the local or online digital wallet in which the HYPE is held. While the L1 blockchain
ledger requires a public key relating to a digital wallet to be published when used in a transaction, private keys must be safeguarded
and kept private in order to prevent a third party from accessing the HYPE held in such wallet. To the extent the private key(s) for a
digital wallet are lost, destroyed, or otherwise compromised and no backup of the private key(s) is accessible, neither we nor our custodians
will be able to access the HYPE held in the related digital wallet. Furthermore, we cannot provide assurance that our digital wallets,
nor the digital wallets of our custodians held on our behalf, will not be compromised as a result of a cyberattack. The HYPE and blockchain
ledger, as well as other digital assets and blockchain technologies, have been, and may in the future be, subject to security breaches,
cyberattacks or other malicious activities.
As part of our treasury management strategy, we
may engage in staking, restaking, or other permitted activities that involve the use of “smart contracts” or decentralized
applications. The use of smart contracts or decentralized applications entails certain risks including risks stemming from the existence
of an “admin key” or coding flaws that could be exploited, potentially allowing a bad actor to issue or otherwise compromise
the smart contract or decentralized application, potentially leading to a loss of our HYPE. Like all software code, smart contracts are
exposed to risk that the code contains a bug or other security vulnerability, which can lead to loss of assets that are held on or transacted
through the contract or decentralized application. Smart contracts and decentralized applications may contain bugs, security vulnerabilities
or poorly designed permission structures that could result in the irreversible loss of HYPE or other digital assets. Exploits, including
those stemming from admin key misuse, admin key compromise, or protocol flaws, have occurred in the past and may occur in the future.
Our historical financial statements do not
reflect the potential variability in earnings that we may experience in the future relating to our HYPE holdings.
Because we only recently initiated our HYPE treasury
strategy, our historical financial statements do not reflect the potential variability in earnings that we may experience in the future
from holding or selling significant amounts of HYPE. The price of digital assets have historically been subject to dramatic price fluctuations
and is highly volatile. In December 2023, the Financial Accounting Standards Board issued Accounting Standards Update 2023-08, Intangibles—Goodwill
and Other—Crypto Assets (Subtopic 350-60): Accounting for and Disclosure of Crypto Assets (“ASU 2023-08”), which we
plan to adopt.
ASU 2023-08 requires us to measure our HYPE holdings
at fair value in our statement of financial position, and to recognize gains and losses from changes in the fair value of our HYPE in
net income each reporting period. ASU 2023-08 also requires us to provide certain interim and annual disclosures with respect to our HYPE
holdings. As a result, volatility in our earnings may be significantly more than what we experienced in prior periods.
Unrealized fair value gains on our HYPE
holdings could cause us to become subject to the corporate alternative minimum tax under the Inflation Reduction Act of 2022.
The United States enacted the Inflation Reduction
Act of 2022 (“IRA”) in August 2022. Unless an exemption applies, the IRA imposes a 15% corporate alternative minimum tax (“CAMT”)
on a corporation with respect to an initial tax year and subsequent tax years, if the average annual adjusted financial statement income
for any consecutive three-tax-year period preceding the initial tax year exceeds $1 billion. On September 12, 2024, the Department of
Treasury and the Internal Revenue Service issued proposed regulations with respect to the application of the CAMT.
In connection with the implementation of our HYPE
treasury strategy, we will adopt ASU 2023-08. ASU 2023-08 requires us to measure our HYPE holdings at fair value in our statement of financial
position, with gains and losses from changes in the fair value of our HYPE recognized in net income each reporting period. When determining
whether we are subject to CAMT and when calculating any related tax liability for an applicable tax year, the proposed regulations provide
that, among other adjustments, our adjusted financial statement income must include this ratable amount in addition to any unrealized
gains or losses reported in the applicable tax year.
Accordingly, as a result of the enactment of the
IRA and our anticipated adoption of ASU 2023-08, unless the IRA is amended or the proposed regulations with respect to CAMT, when finalized,
are revised to provide relief (or other interim relief is granted), we could become subject to the CAMT in future tax years. If we become
subject to the CAMT, it could result in a material tax obligation that we would need to satisfy in cash, which could materially affect
our financial results, including our earnings and cash flow, and our financial condition.
Due to the unregulated nature and lack of
transparency surrounding the operations of many HYPE trading venues, HYPE trading venues may experience greater fraud, security failures
or regulatory or operational problems than trading venues for more established asset classes, which may result in a loss of confidence
in HYPE trading venues and adversely affect the value of our HYPE.
HYPE trading venues are relatively new and, in
many cases, unregulated. Furthermore, there are many HYPE trading venues which do not provide the public with significant information
regarding their ownership structure, management teams, corporate practices and regulatory compliance. As a result, the marketplace may
lose confidence in HYPE trading venues, including prominent exchanges that handle a significant volume of HYPE trading and/or are subject
to regulatory oversight, in the event one or more HYPE trading venues cease or pause for a prolonged period the trading of HYPE or other
digital assets, or experience fraud, significant volumes of withdrawal, security failures or operational problems.
The SEC alleged as part of its June 5, 2023, complaint
against Binance that Binance committed strategic and targeted “wash trading” through its affiliates to artificially inflate
the volume of certain digital assets traded on its exchange. The SEC has also brought recent actions against individuals and digital asset
market participants alleging that such persons artificially increased trading volumes in certain digital assets through wash trades, or
repeated buying and selling of the same assets in fictitious transactions to manipulate their underlying trading price. Such reports and
allegations may indicate that the HYPE market is significantly smaller than expected and that the United States makes up a significantly
larger percentage of the HYPE market than is commonly understood. Any actual or perceived wash trading in the HYPE market, and any other
fraudulent or manipulative acts and practices, could adversely affect the value of our HYPE.
Negative perception, a lack of stability in the
broader digital currency markets and the closure, temporary shutdown or operational disruption of HYPE trading venues, lending institutions,
institutional investors, institutional miners, custodians, or other major participants in the HYPE ecosystem, due to fraud, business failure,
cybersecurity events, government-mandated regulation, bankruptcy, or for any other reason, may result in a decline in confidence in HYPE
and the broader digital currency ecosystem and greater volatility in the price of HYPE. For example, in 2022, each of Celsius Network,
Voyager Digital, Three Arrows Capital, FTX, and BlockFi filed for bankruptcy, following which digital assets significantly declined. In
addition, in June 2023, the SEC announced enforcement actions against Coinbase and Binance, two providers of large trading venues for
digital assets, which similarly was followed by a decrease in the market price of digital assets. These were followed in November 2023,
by an SEC enforcement action against Payward Inc. and Payward Ventures Inc., together known as Kraken, another large trading venue for
digital assets. While the complaint against Coinbase was dismissed in February 2025, the complaint against Payward Inc. and Payward Ventures
Inc. was dismissed with prejudice in March 2025, and the complaint against Binance was dismissed on May 29, 2025, the SEC or other regulatory
agencies may initiate similar actions in the future. As the price of our listed securities may be affected by the value of our HYPE holdings,
the failure of a major participant in the digital currency ecosystem could have a material adverse effect on the market price of our listed
securities.
The concentration of our HYPE holdings could
enhance the risks inherent in our HYPE treasury strategy.
The concentration of our HYPE holdings limits
the risk mitigation that we could achieve if we were to purchase a more diversified portfolio of treasury assets, and the absence of diversification
enhances the risks inherent in our HYPE treasury strategy. Any future significant declines in the price of HYPE would have a more pronounced
impact on our financial condition than if we used our cash to purchase a more diverse portfolio of assets.
The emergence or growth of other digital
assets, including those with significant private or public sector backing, could have a negative impact on the price of HYPE and adversely
affect our business.
As a result of our HYPE treasury strategy, our
assets are concentrated in our HYPE holdings. Accordingly, the emergence or growth of digital assets other than HYPE may have a material
adverse effect on our financial condition. There are numerous alternative digital assets and many entities, including consortiums and
financial institutions, are researching and investing resources into private or permissioned blockchain platforms or digital assets that
do not use proof-of-stake consensus mechanism like the Hyperliquid network. For example, in late 2022, the Ethereum network transitioned
to a “proof-of-stake” mechanism for validating transactions that requires significantly less computing power than proof-of-work
mining. The Ethereum network has completed another major upgrade since then and may undertake additional upgrades in the future. If the
mechanisms for validating transactions in Ethereum and other alternative digital assets are perceived as superior to proof-of-work mining,
those digital assets could gain market share relative to HYPE.
Our HYPE holdings will be less liquid than
our cash and cash equivalents and may not be able to serve as a source of liquidity for us to the same extent as cash and cash equivalents.
Historically, the cryptocurrency market has been
characterized by significant volatility in price, limited liquidity and trading volumes compared to sovereign currencies markets, relative
anonymity, a developing regulatory landscape, potential susceptibility to market abuse and manipulation, compliance and internal control
failures at exchanges, and various other risks inherent in its entirely electronic, virtual form and decentralized network. During times
of market instability, we may not be able to sell our HYPE at favorable prices or at all. As a result, our HYPE holdings may not be able
to serve as a source of liquidity for us to the same extent as cash and cash equivalents.
Further, the HYPE we hold with our custodians
and transact with our trade execution partners does not enjoy the same protections as are available to cash or securities deposited with
or transacted by institutions subject to regulation by the Federal Deposit Insurance Corporation or the Securities Investor Protection
Corporation.
Additionally, we may be unable to enter into term
loans or other capital raising transactions collateralized by our unencumbered HYPE or otherwise generate funds using our HYPE holdings,
including in particular during times of market instability or when the price of HYPE has declined significantly. If we are unable to sell
our HYPE, enter into additional capital raising transactions, including capital raising transactions using HYPE as collateral, or otherwise
generate funds using our HYPE holdings, or if we are forced to sell our HYPE at a significant loss, in order to meet our working capital
requirements, our business and financial condition could be negatively impacted.
Item
9.01 Financial Statements and Exhibits.
(d) Exhibits
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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EYENOVIA, INC. |
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| Dated: June 27, 2025 |
By: |
/s/ Michael Rowe |
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Michael Rowe |
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Chief Executive Officer |
