UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a)
of the Securities Exchange Act of 1934
Filed by the Registrant
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Filed by a Party other than the Registrant
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Definitive Proxy Statement
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Preliminary Proxy Statement
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive Additional Materials
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Soliciting Material Pursuant to § 240.14a-12
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CV SCIENCES, INC.
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(Name of Registrant as Specified In Its Charter)
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N/A
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment of Filing Fee (Check the appropriate box):
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Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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________________________________________
PRELIMINARY PROXY MATERIALS SUBJECT TO
COMPLETION DATED MAY 16, 2017
________________________________________
CV SCIENCES, INC.
2688 South Rainbow Boulevard, Suite B
Las Vegas, Nevada 89146
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To Be Held on July 14, 2017
NOTICE IS HEREBY GIVEN
that the annual meeting of the stockholders (the “
Meeting
”) of CV Sciences, Inc. (the “
Company
”,
“
we
” or “
us
”) will be held on July 14, 2017, at 10 a.m. local time, at the
Red Rock Casino Resort & Spa located at 11011 West Charleston Boulevard, Las Vegas, Nevada 89135, (702) 797-7777, for the following
purposes:
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(1)
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To elect five directors to hold office until the next annual meeting of stockholders and until their successors are duly elected and qualified;
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(2)
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To ratify Tanner LLC, as our independent registered public accounting firm for the fiscal year ending December 31, 2017;
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(3)
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To amend the Company’s Amended and Restated 2013 Equity Incentive Plan, as amended, to increase the number of shares issuable under the plan;
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(4)
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To approve an amendment to the Company’s Certificate of Incorporation, as amended, to effect, at
the discretion of the Company’s Board of Directors, a reverse stock split of all outstanding shares of the Company’s
common stock, par value $0.0001 per share, at a ratio of not less than 1-for-5 and not greater than 1-for-50, such ratio to be
determined by the Company’s Board of Directors at any time before June 30, 2018, without further approval or authorization
of our stockholders; and
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(5)
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To consider and act upon such other business as may properly come before the meeting or any adjournments or postponement thereof.
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The close of business on
May 24, 2017 has been fixed as the record date for determining stockholders entitled to notice of, and to vote at, the Meeting
or any adjournments or postponement thereof. For at least 10 days prior to the Meeting, a complete list of stockholders entitled
to vote at the Meeting will be open to any stockholder’s examination during ordinary business hours at our principal executive
offices at 2688 South Rainbow Boulevard, Suite B, Las Vegas, Nevada 89146, (866) 290-2157.
Our Board of Directors
has carefully reviewed and considered the foregoing proposals and has concluded that each proposal is in the best interests of
the Company and its stockholders. Therefore, our Board of Directors has approved each proposal and recommends that you vote FOR
all of the foregoing proposals.
Your vote is important
no matter how large or small your holdings may be. If you do not expect to be present at the Meeting in person, you are urged to
immediately complete, date, sign and return the proxy card. Please review the instructions on each of your voting options described
in the enclosed proxy statement as well as in the Notice of Internet Availability of Proxy Statement you received in the mail.
This will not limit your right to attend or vote at the Meeting. You may revoke your proxy at any time before it has been voted
at the Meeting. Please note that dissenter’s rights are not available with respect to the proposals to be voted upon at this
meeting.
The Notice of Internet
Availability of Proxy Materials also contains instructions on how to access the Proxy Statement and our Annual Report on Form 10-K
for the year ended December 31, 2016 which are available online at: _________________.
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By Order of the Board of Directors
/s/ Joseph Dowling
Joseph Dowling
Secretary
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Las Vegas, Nevada
May __, 2017
I M P O R T A N T
YOU ARE CORDIALLY INVITED TO ATTEND THE MEETING
IN PERSON. WHETHER OR NOT YOU EXPECT TO ATTEND THE MEETING, PLEASE COMPLETE, DATE, SIGN AND RETURN THE PROXY CARD, AS PROMPTLY
AS POSSIBLE IN ORDER TO ENSURE YOUR REPRESENTATION AT THE MEETING. PLEASE REVIEW THE INSTRUCTIONS ON EACH OF YOUR VOTING OPTIONS
DESCRIBED IN THE ENCLOSED PROXY STATEMENT AS WELL AS IN THE NOTICE OF INTERNET AVAILABILITY OF PROXY STATEMENT YOU RECEIVED IN
THE MAIL. EVEN IF YOU HAVE VOTED BY PROXY, YOU MAY STILL VOTE IN PERSON IF YOU ATTEND THE MEETING. PLEASE NOTE, HOWEVER, THAT IF
YOUR SHARES ARE HELD OF RECORD BY A BROKER, BANK OR OTHER NOMINEE AND YOU WISH TO VOTE AT THE MEETING, YOU MUST OBTAIN A PROXY
CARD ISSUED IN YOUR NAME FROM THAT INTERMEDIARY. A MAJORITY IN VOTING POWER OF THE OUTSTANDING SHARES OF COMMON STOCK MUST BE REPRESENTED
AT THE MEETING, EITHER IN PERSON OR BY PROXY, TO CONSTITUTE A QUORUM.
________________________________________
PRELIMINARY PROXY MATERIALS SUBJECT TO
COMPLETION DATED MAY 16, 2017
________________________________________
CV SCIENCES, INC.
2688 South Rainbow Boulevard, Suite B
Las Vegas, Nevada 89146
(866) 290-2157
PROXY STATEMENT
For
ANNUAL MEETING OF STOCKHOLDERS
To Be Held on July 14, 2017 at 10 a.m. local
time
GENERAL INFORMATION
This proxy statement is
furnished in connection with the solicitation of proxies by the Board of Directors (the “
Board
”) of CV
Sciences, Inc. (the “
Company
”, “
CV Sciences
”, “
we
”
or “
us
”) for use at the annual meeting of the stockholders (the “
Meeting
” or
the “
2017 Annual Meeting
”) of the Company, to be held on July 14, 2017, at 10 a.m., local time. The Meeting
will be held at Red Rock Casino Resort & Spa located at 11011 West Charleston Boulevard, Las Vegas, Nevada 89135, (702) 797-7777.
This proxy statement and proxy will be made available to our stockholders on or about May __, 2017.
Only stockholders of record
at the close of business on May 24, 2017 (the “
Record Date
”), are entitled to notice of, and to vote
at, the Meeting. At the close of business on the Record Date, ___ shares of the Company’s common stock were issued and outstanding,
held by more than more than _____ individual participants in securities positions listings of our common stock. Each share of common
stock is entitled to one vote on each matter to be voted upon at the Meeting. Shares cannot be voted at the Meeting unless the
holder thereof is present or represented by proxy. The presence, in person or by proxy, of the holders of a majority in voting
power of the outstanding shares of common stock on the Record Date will constitute a quorum for the transaction of business at
the Meeting and any adjournment or postponement thereof.
Our Board has selected
Michael Mona, Jr. to serve as the holder of proxies for the Meeting. The shares of common stock represented by each executed and
returned proxy will be voted by him in accordance with the directions indicated on the proxy. If you sign your proxy card without
giving specific instructions, Mr. Mona will vote your shares “FOR” the proposals being made at the Meeting. The proxy
also confers discretionary authority to vote the shares authorized to be voted thereby on any matter that may be properly presented
for action at the Meeting; we currently know of no other business to be presented.
Any proxy given may be
revoked by the person giving it at any time before it is voted at the Meeting. If you have not voted through your broker, there
are three ways for you to revoke your proxy and change your vote. First, you may send a written notice to the Company’s secretary
stating that you would like to revoke your proxy. Second, you may complete and submit a new proxy card, but it must bear a later
date than the original proxy. Third, you may vote in person at the Meeting. However, your attendance at the Meeting will not, by
itself, revoke your proxy. If you have instructed a broker to vote your shares, you must follow the directions you receive from
your broker to change your vote. Your last vote will be the vote that is counted. Please note that dissenter’s rights are
not available with respect to any proposal to be voted upon at the Meeting.
We will provide copies
of this proxy statement and accompanying materials to brokerage firms, fiduciaries and custodians for forwarding to beneficial
owners and will reimburse these persons for their costs of forwarding these materials. Our directors and officers and employees
may solicit proxies by telephone, facsimile, or personal solicitation. We will not pay additional compensation for any of these
services.
QUESTIONS AND ANSWERS REGARDING THIS SOLICITATION
AND VOTING AT THE MEETING
Q. When is the Meeting?
A. July 14, 2017 at 10
a.m., local time.
Q. Where will the Meeting be held?
A. The Meeting will be
held at 11011 West Charleston Boulevard, Las Vegas, Nevada 89135, (702) 797-7777.
Q. Why am I receiving these proxy materials?
A. As permitted by rules
adopted by the Securities and Exchange Commission (the “
SEC
”), we are making this Proxy Statement and
our Annual Report filed on Form 10-K for the year ended December 31, 2016 (the “
Annual Report
”), available
to our stockholders electronically via the Internet. On or about May __, 2017, we mailed to all stockholders of record entitled
to vote at the 2017 Annual Meeting a Notice of Internet Availability of Proxy Materials containing instructions on how to access
this Proxy Statement and our Annual Report and vote via the Internet, by phone, in person or by mail. If you received a Notice
of Internet Availability of Proxy Materials by mail, you will not receive a printed copy of the proxy materials, unless specifically
requested. If you received a Notice of Internet Availability of Proxy Materials by mail and would like to receive a printed copy
of the proxy materials you should follow the instructions for requesting such materials included in the Notice of Internet Availability
of Proxy Materials. We sent you the Notice of Internet Availability of Proxy Materials because the Board of Directors, or the Board,
of CV Sciences, Inc., also referred to as the Company, CV Sciences, we, or us, is soliciting your proxy to vote at the 2017 Annual
Meeting. You are invited to attend the annual meeting to vote on the proposals described in this Proxy Statement. However, you
do not need to attend the meeting to vote your shares. Instead, you may follow the instructions on the Notice of Internet Availability
of Proxy Materials to vote by internet or by mail.
Q. Who is entitled to
vote at the Meeting?
A. Only stockholders who
owned our common stock at the close of business on the Record Date are entitled to notice of the Meeting and to vote at the meeting,
and at any postponements or adjournments thereof. At the close of business on the Record Date, there were ____ shares of our common
stock outstanding held by over ______ individual participants in securities positions listings of our common stock.
Q. How many shares must
be present to conduct business?
A. The presence at the
Meeting, in person or by proxy, of the holders of a majority in voting power of the outstanding shares of our common stock at the
close of business on the Record Date will constitute a quorum. A quorum is required to conduct business at the meeting.
Q. What will be voted
on at the Meeting?
A. The items of business
scheduled to be voted on at the meeting are as follows:
1. Election
of five directors to serve until the Company’s 2018 Annual Meeting of Stockholders;
2. Ratification
of Tanner LLC (“
Tanner
”), as the Company’s independent registered public accounting firm for the
fiscal year ending December 31, 2017;
3. Amendment
of the Company’s Amended and Restated 2013 Equity Incentive Plan, as amended, to increase the number of shares issuable under
the plan; and
4. An amendment to the Company’s Certificate of Incorporation, as amended, to effect, at the discretion
of the Company’s Board of Directors, a reverse stock split of all outstanding shares of the Company’s common stock,
par value $0.0001 per share, at a ratio of not less than 1-for-5 and not greater than 1-for-50, such ratio to be determined by
the Company’s Board of Directors at any time before June 30, 2018, without further approval or authorization of our stockholders.
Q.
How does the Board recommend that I vote?
A. Our Board recommends
that you vote your shares “FOR” approval of all of the proposals set forth herein.
Q. What shares can I
vote at the Meeting?
A. You may vote all shares
of common stock owned by you as of the Record Date, including (1) shares held directly in your name as the stockholder of record,
and (2) shares held for you as the beneficial owner through a broker, trustee or other nominee such as a bank.
Q. What is the difference
between holding shares as a stockholder of record and as a beneficial owner?
A. Some of our stockholders
may hold shares of common stock in their own name rather than through a broker or other nominee. As summarized below, there are
some distinctions between shares held of record and those owned beneficially.
Stockholders of Record.
If your shares are registered directly in your name with our transfer agent, Interwest Transfer Co., Inc., you are considered to
be, with respect to those shares, the stockholder of record, and the Notice of Internet Availability of Proxy Materials was sent
directly to you. As the stockholder of record, you have the right to vote in person at the Meeting and vote by proxy. Whether or
not you plan to attend the Meeting, we urge you vote by internet or by mail to ensure your vote is counted. You may still attend
the meeting and vote in person if you have already voted by proxy.
Beneficial Owner. If your
shares are held in a brokerage account or by another nominee, you are considered the beneficial owner of shares held in street
name, and these proxy materials are being forwarded to you from that organization together with a voting instruction card. As the
beneficial owner, you have the right to direct your broker, trustee or nominee how to vote and are also invited to attend the Meeting.
Please note that since a beneficial owner is not the stockholder of record, you may not vote these shares in person at the meeting
unless you obtain a “legal proxy” from the broker, trustee or nominee that holds your shares, giving you the right
to vote the shares at the meeting. If this applies to you, your broker, trustee or nominee will have enclosed or provided voting
instructions for you to use in directing the broker, trustee or nominee how to vote your shares.
Q. How can I vote my
shares without attending the Meeting?
A. Whether you hold shares
directly as the stockholder of record or beneficially in street name, you may direct how your shares are voted without attending
the Meeting. If you are a stockholder of record, you may vote by proxy by internet or by mail by following the instructions provided
on the Notice of Internet Availability of Proxy Materials. To vote using the proxy card, you must request a paper copy of the proxy
materials by following the instructions available on the Notice of Internet Availability of Proxy Materials and then simply complete,
sign and date the proxy card and return it promptly in the envelope provided. If you return your signed proxy card to us before
the 2017 Annual Meeting, we will vote your shares as you direct. Stockholders who hold shares beneficially in street name may cause
their shares to be voted by proxy in accordance with the instructions provided by their broker, trustee or nominee, by using the
proxy card provided by the broker, trustee or nominee and mailing them in the envelope provided by such person.
Q. How can I vote my
shares in person at the Meeting?
A. Shares held in your
name as the stockholder of record may be voted in person at the Meeting. Shares held beneficially in street name may be voted in
person only if you obtain a legal proxy from the broker, trustee or nominee that holds your shares giving you the right to vote
the shares. Even if you plan to attend the Meeting, we recommend that you also submit your proxy card or voting instructions as
described above so that your vote will be counted if you later decide not to, or are unable to, attend the meeting.
Q. How are votes counted?
A. If you provide specific
instructions with regard to an item, your shares will be voted as you instruct on such item. If you sign your proxy card without
giving specific instructions, your shares will be voted in accordance with the recommendations of the Board (“FOR”
each proposal, “FOR” the nominees identified herein, and in the discretion of the proxy holder on any other matters
that properly come before the Meeting).
Q. What is a “broker
non-vote”?
A. A broker non-vote
occurs when a beneficial owner of shares held in “street name” does not give instructions to the broker or nominee
holding the shares as to how to vote on matters deemed “non-routine.” Generally, if shares are held in street name,
the beneficial owner of the shares is entitled to give voting instructions to the broker or nominee holding the shares. If the
beneficial owner does not provide voting instructions, the broker or nominee can still vote the shares with respect to matters
that are considered to be “routine,” but not with respect to “non-routine” matters. Under the rules and
interpretations of the New York Stock Exchange, “non-routine” matters are generally those involving a contest or a
matter that may substantially affect the rights or privileges of stockholders, such as mergers, dissolutions or stockholder proposals.
Your broker will NOT be able to vote your shares with respect to the election or directors, the approval of the amendment to the
Amended and Restated 2013 Equity Incentive Plan, as amended, or the approval of the amendment to the Company’s Certificate
of Incorporation, as amended, to effect, at the discretion of the Company’s Board of Directors, a reverse stock split of
all outstanding shares of the Company’s common stock, par value $0.0001 per share, at a ratio of not less than 1-for-5 and
not greater than 1-for-50, such ratio to be determined by the Company’s Board of Directors at any time before June 30, 2018,
without further approval or authorization of our stockholders. If you hold shares through a broker, we strongly encourage you
to submit your voting instruction card and exercise your right to vote as a stockholder.
Broker non-votes will have
no effect on the election of directors.
Q. How are abstentions
counted?
A. If you return a proxy
card that indicates an abstention from voting on all matters, the shares represented will be counted for the purpose of determining
both the presence of a quorum and the total number of votes entitled to vote with respect to a proposal, but they will not be voted
on any matter at the Meeting.
With regard to the election
of directors, votes may be cast in favor of a director nominee or withheld. Because directors are elected by plurality, abstentions
will be entirely excluded from the vote and will have no effect on its outcome.
With regard to ratification
of Tanner as the Company’s independent registered public accounting firm for the year ending December 31, 2017, the affirmative
vote of a majority of the shares present in person or represented by proxy and entitled to vote at the meeting is required for
approval. Accordingly, abstentions will not be voted in favor of such proposal and will have the same effect as a vote “AGAINST”
the proposal.
With regard to the proposal
approving an amendment to the Company’s Amended and Restated 2013 Equity Incentive Plan, as amended, the affirmative vote
of a majority of the shares present in person or represented by proxy and entitled to vote at the meeting is required for approval.
Accordingly, abstentions will not be voted in favor of such proposal and will have the same effect as a vote “AGAINST”
the proposal.
With regard to the
proposal approving an amendment to the Company’s Certificate of Incorporation, as amended, to effect, at the discretion
of the Company’s Board of Directors, a reverse stock split of all outstanding shares of the Company’s common stock,
par value $0.0001 per share, at a ratio of not less than 1-for-5 and not greater than 1-for-50, such ratio to be determined by
the Company’s Board of Directors at any time before June 30, 2018, without further approval or authorization of our stockholders,
the affirmative vote of a majority in voting power of the outstanding shares of common stock entitled to vote at the meeting is
required for approval. Accordingly, abstentions will not be voted in favor of such proposal and will have the same effect as a
vote “AGAINST” the proposal.
Q. What should I do if I receive more than
one Notice of Internet Availability of Proxy Materials?
A. If you receive more
than one Notice of Internet Availability of Proxy Materials, your shares are registered in more than one name or are registered
in different accounts. Please follow the instructions on each Notice of Internet Availability of Proxy Materials to ensure that
all of your shares are voted.
Q. Can I change my mind after I return my
proxy?
A. Yes. You may change
your vote at any time before your proxy is voted at the Meeting. If you are a stockholder of record, you can do this by giving
written notice to the corporate secretary, by submitting another proxy with a later date, or by attending the Meeting and voting
in person. If you are a stockholder in “street” or “nominee” name, you should consult with the bank, broker
or other nominee regarding that entity’s procedures for revoking your voting instructions.
Q. Who is soliciting my vote and who is paying
the costs?
A. Your vote is being solicited
on behalf of the Board, and the Company will pay the costs associated with the solicitation of proxies, including preparation,
assembly, printing and mailing of the Notice of Internet Availability of Proxy Materials and this proxy statement, as applicable.
Q. How can I find out the results of the
voting?
A. We intend to announce
preliminary voting results at the meeting and publish final results in a Current Report on Form 8-K within four business days following
the meeting.
Q. Whom should I contact if I have questions?
A. If you have any additional
questions about the Meeting or the proposals presented in this proxy statement, you should contact the following person at our
principal executive office as follows:
Joseph Dowling, Secretary
2688 South Rainbow Boulevard, Suite B
Las Vegas, Nevada 89146
(866) 290-2157
PROPOSAL 1
ELECTION OF DIRECTORS
The Board has nominated Mr. Michael Mona,
Jr., Mr. James McNulty, Mr. Michael Mona, III, Mr. Gary Sligar and Stephen Schmitz, MD as directors to be elected to serve until
the next annual meeting of stockholders and until their successors are duly elected and qualified. If elected, each of the directors
will hold office as a director until our 2018 annual meeting of stockholders.
If you sign your proxy or voting instruction
card but do not give instructions with respect to the voting of directors, your shares will be voted for the nominees recommended
by our Board. If you wish to give specific instructions with respect to the voting of directors, you may do so by indicating your
instructions on your proxy or voting instruction card. The Board expects that the nominees will be available to serve as directors.
If any of Mr. Mona, Jr., Mr. McNulty, Mr. Mona, III, Mr. Sligar or Dr. Schmitz becomes unavailable, however, the proxy holder
intends to vote for any nominee designated by the Board, unless the Board chooses to reduce the number of directors serving on
the Board. If additional persons are nominated for election as directors, the proxy holders intend to vote all proxies received
by them in such a manner as to assure the election of Mr. Mona, Jr., Mr. McNulty, Mr. Mona, III, Mr. Sligar and Dr. Schmitz.
Recommendation of the Board of Directors
The Board of Directors unanimously recommends
that you vote “FOR” the nominees identified above.
DIRECTORS AND EXECUTIVE OFFICERS
Our executive officers, key employees and directors
are listed in the below table. There are no arrangements, agreements or understandings between non-management security holders
and management under which non-management security holders may directly or indirectly participate in or influence the management
of our affairs and there are no arrangements or understanding between any of our officers, directors or nominees for directors
and any other person pursuant to which any officer, director or nominee for director was or is to be selected as an officer, director
or nominee. There currently are no legal proceedings, and, except for the judgment against Mr. Mona, Jr. in 2012 in connection
with the lawsuit filed by Far West Industries, as previously reported by the Company in its Annual Report on Form 10-K filed with
the SEC for the fiscal year ended December 31, 2014, and other filings made by the Company pursuant to the Exchange Act (as defined
below) and the Securities Act of 1933, as amended (the “
Securities Act
”), during the past ten years there
have been no legal proceedings that are material to the evaluation of the ability or integrity of any of our directors or director
nominees. There are no material proceedings to which any director, officer, affiliate or owner of record or beneficially of more
than 5% of any class of voting securities of the Company, or any associates of any such persons, is a party adverse to the Company
or any of our subsidiaries and none of such persons has a material interest adverse to the Company or any of its subsidiaries.
Name
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Age
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Position
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Director since the
below date (1)
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Nominee
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Michael Mona, Jr.(2)
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62
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President, Chief Executive Officer and Director
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January 28, 2013
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Y
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James McNulty
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66
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Director
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January 4, 2016
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Y
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Michael Mona, III(3)
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30
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Chief Operating Officer and Director
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May 24, 2016
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Y
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Gary Sligar
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66
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Director
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June 2, 2016
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Y
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Stephen Schmitz, MD
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61
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Director
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May 10, 2017
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Y
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Joseph Dowling(4)
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60
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Chief Financial Officer and Secretary
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N/A
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N
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(1)
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Each director serves until the next annual meeting of stockholders.
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(2)
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Elected as President and Chief Executive Officer on November 16, 2012.
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(3)
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Appointed as Vice President, Operations on July 25, 2013 (title was changed to Chief Operating Officer in March 2016)
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(4)
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Appointed as Chief Financial Officer on June 16, 2014 and Secretary on August 25, 2014
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Michael Mona, Jr.
Mr. Mona, Jr. is the
founder of CV Sciences and possesses more than 30 years of senior management experience in a range of industries including real
estate/construction, industrial farming operations, chemical processing and consumer products. Mr. Mona, Jr. is a recognized industry
leader in hemp farming operations and chemical extraction, and has established a global supply chain of hemp based products. Prior
to founding CV Sciences, Mr. Mona, Jr. was an entrepreneur, founding two successful real estate/construction companies, M&M
Development, Inc., where he has served as the President since 1994, and Mona Co. Development. As our President and Chief Executive
Officer, Mr. Mona, Jr. is specially qualified to serve on the Board because of his detailed knowledge of our global operations
and supply chain, and the end-consumer market sectors that we serve.
James McNulty.
Mr. McNulty was initially
appointed as a director of the Company on January 4, 2016. Mr. McNulty has served as Chief Financial Officer (“CFO”)
of Hopkins Capital Group, an affiliation of limited liability companies which engage in venture activities primarily in the development
of pharmaceuticals, since 2000. Mr. McNulty currently serves as Chief Executive Officer (“CEO”) of MYMD Pharmaceuticals,
is a Director of Quantum Sciences Technology, Inc., and is CEO of Defender Pharmaceuticals, Inc.; all of which are privately-held
companies. Mr. McNulty was CFO of Biodelivery Sciences International, Inc. (NASDAQ: BDSI) from 2000 until his retirement from BDSI
in December 2014. BDSI is a specialty pharmaceutical company that is leveraging its novel and proprietary patented drug delivery
technologies to develop and commercialize, either on its own or in partnerships with third parties, new applications of proven
therapeutics. The development strategy focuses on utilization of the FDAs 505(b)(2) approval process to potentially obtain timely
and efficient approval of new formulations of previously approved therapeutics which incorporate the company's licensed drug delivery
technologies. Mr. McNulty has performed accounting and consulting services, including expert testimony as a Certified Public Accountant
since 1975. Mr. McNulty chairs the Company’s audit committee which was formally chartered on March 16, 2016. Mr. McNulty’s
knowledge of the pharmaceutical industry and technical accounting issues as well as extensive business background makes him a valuable
addition to the Board.
Michael Mona, III.
Mr. Mona, III was
appointed as Vice President of Operations on July 31, 2013 and has been instrumental in developing the worldwide supply chain for
hemp products. Mr. Mona, III was appointed as Chief Operating Officer in March 2016 and as a director of the Company on May 24,
2016. Mr. Mona, III’s expertise in hemp farming, processing, testing and product development has greatly aided the Company
in developing new markets for hemp-based products. Mr. Mona, III heads our consumer product business segment and also leads our
efforts to bring hemp, as a viable economic crop, back to the United States through our affiliation with the Kentucky State Department
of Agriculture. Prior to CV Sciences, Mr. Mona, III held various management positions in the real estate/construction industry
including serving as a managing member of Mona Co. Development from 2009-2013. Mr. Mona, III graduated from the University of San
Diego in Business Administration.
Gary Sligar
. Mr. Sligar was initially
appointed as a director of the Company on June 2, 2016. Mr. Sligar’s career spans 35 years in the commercial real estate
industry including appraisal, commercial mortgage, property/asset management, leasing, construction and development. Since 2000,
Mr. Sligar has co-owned and managed Paradise Properties LLC, a Florida-based real estate investment/development company focusing
on office, retail, hotel, restaurant and multifamily properties in Southwest Florida. In 2008, Mr. Sligar founded TRECAP Partners,
LLC which was subsequently acquired by Hunt Investment Management, an SEC-registered investment advisor and a subsidiary of the
Hunt Companies, Inc. Mr. Sligar served as President of Hunt Investment Management until 2012 and a consultant to Hunt Investment
Management from 2012 to 2014. Mr. Sligar also served on the Board of Directors of Hunt Investment Management from 2011 to 2013.
Prior to Paradise Properties, LLC, Mr. Sligar was the founder and Chief Executive Officer of Compass Management and Leasing, Inc.
from 1989 until its sale to Lasalle Partners in 1999. Before the formation of Compass Management and Leasing, Inc., Mr. Sligar
was the Executive Vice President responsible for the New York office asset management operations for Equitable Real Estate from
1986 to 1989. Mr. Sligar is a graduate of Tulsa University and has completed certain graduate studies at the University of Houston,
Mr. Sligar’s extensive business background makes him a valuable member of the Board.
Stephen Schmitz, MD.
Dr. Schmitz
was initially appointed as a director of the Company on May 10, 2017. Dr. Schmitz is a board certified physician with nearly 20
years of experience in the pharmaceutical industry with extensive experience in drug safety, dietary supplement safety, clinical
development and regulatory affairs. He has worked for several major pharmaceutical companies, in the therapeutic areas of neurosciences,
ophthalmology, medical devices and orphan (rare) diseases. While the focus of his pharma career has been in drug safety, he has
also worked in clinical development and served as the medical monitor for numerous studies. Before entering the pharmaceutical
industry, Dr. Schmitz worked in preventive medicine, and practiced family and occupational medicine. Dr. Schmitz earned his B.S.
in Biology from Fairfield University, an M.D. from Rutgers Medical School, and his M.P.H. from the Boston University School of
Public Health. Since 2012, Dr. Schmitz has worked in drug safety for Shire, a global pharmaceutical company. Dr. Schmitz’
knowledge of the pharmaceutical industry as well as extensive business background makes him a valuable addition to the Board.
Joseph Dowling.
Mr. Dowling was appointed
as Chief Financial Officer (“CFO”) of the Company on June 16, 2014 and was appointed Secretary on August 25, 2014.
Prior to his appointment as CFO, Mr. Dowling held numerous senior positions including President and CFO of MediVas, LLC, a biotechnology
company focused on drug formulation and delivery, and from 1998 to 2005 served as a Managing Director at Citigroup, a global financial
services firm. Earlier in his career, Mr. Dowling served in various finance and accounting roles in both public accounting and
in the banking industry. Mr. Dowling graduated from University of California, Los Angeles in Economics and is a Certified Public
Accountant.
Board of Directors and Stockholder Meetings
and Attendance
The Board has responsibility for establishing
broad corporate policies and reviewing our overall performance rather than day-to-day operations. The primary responsibility of
the Board is to oversee the management of the Company and, in doing so, serve the best interests of the Company and its stockholders.
The entire Board selects, evaluates and provides for the succession of executive officers and, subject to stockholder election,
directors. It reviews and approves corporate objectives and strategies, and evaluates significant policies and proposed major commitments
of corporate resources. The Board also participates in decisions that have a potential major economic impact on the Company. Management
keeps the directors informed of Company activity through regular communication, including written reports and presentations at
Board and committee meetings.
Directors are elected annually and hold office
until the next annual meeting and until their successors are duly elected and qualified. During fiscal year 2016, there were five
formal Board meetings. None of our directors attended fewer than 75% of the total number of meetings of the Board and meetings
of any Committee of the Board on which such director served during the time each such individual director was serving as a director.
The Company encourages, but does not require, directors to attend annual meetings of stockholders. All of the directors attended
the 2016 Annual Meeting of Stockholders; Larry Raskin attended telephonically.
Committees of the Board of Directors
The Company has formal Compensation and Audit
Committees. All other functions of the Board, including those functions performed by a Nominating Committee, are being undertaken
by the Board of Directors as a whole. The Company’s Board has determined that a formal nominating committee is not currently
necessary given the Company’s current operations and size.
The Compensation Committee consists of James
McNulty, and, prior to his resignation on May 5, 2017, Larry Raskin, and has established a charter that requires all members of
the Compensation Committee to be “non-employee directors” for purposes of Rule 16b-3 of the Securities Exchange Act
of 1934, as amended (the “
Exchange Act
”), and satisfy the requirements of an “outside director”
for purposes of Section 16(m) of the Internal Revenue Code. The Compensation Committee is responsible for overseeing and, as appropriate,
making recommendations to the Board of Directors regarding the annual salaries and other compensation of our executive officers,
our general employee compensation and other policies and providing assistance and recommendations with respect to our compensation
policies and practices. The Compensation Committee is authorized to carry out these activities and other actions reasonably related
to the Compensation Committee's purposes or assigned by the Board of Directors from time to time. The Compensation Committee operates
pursuant to a written charter that is available on our website at http://www.cvsciences.com. During fiscal year 2016, the Compensation
Committee held one meeting. During fiscal year 2016, the Compensation Committee retained Radford, a division of Aon Hewitt, to
consult with the Company on a range of issues relating to executive and director compensation. Radford serves at the discretion
of the Compensation Committee and provides services only to the Compensation Committee. Services provided by Radford included a
review of executive and director compensation, public peer group and compensation philosophy development, and executive compensation
benchmarking. Working with Radford, the Compensation Committee considered a variety of factors when determining the Company’s
executive compensation program and total compensation levels. These factors included analysis of peer companies and Radford’s
Global Life Science Survey.
The Audit Committee consists of James McNulty
and Gary Sligar, and has established a charter that requires all members of the Audit Committee to be independent in accordance
with applicable listing standards. Our securities are quoted on the OTC: QB, which does not have any director independence requirements.
Further, companies with securities only listed on the OTC: QB are not required to comply with the independence standards set forth
in Rule 10A-3(b)(1) of the Exchange Act. Our Board of Directors has also determined that Mr. McNulty is an “audit committee
financial expert” as defined in Item 407(d) of Regulation S-K. During fiscal year 2016, the Audit Committee held four meetings.
The Audit Committee operates pursuant to a written charter that is available on our website at http://www.cvsciences.com.
The Audit Committees responsibilities include:
a) selecting and evaluating the performance of our independent auditors; b) reviewing the scope of the audit to be conducted by
our independent auditors, as well as the result of their audit, and approving audit and non-audit services to be provided; c) reviewing
and assessing our financial reporting activities and disclosure, including our earnings press releases and periodic reports, and
the accounting standards and principles followed; d) reviewing the scope, adequacy and effectiveness of our internal control over
financial reporting; e) reviewing management’s assessment of our compliance with our disclosure controls and procedures;
f) reviewing our public disclosure policies and procedures; g) reviewing our guidelines and policies regarding risk assessment
and management, our tax strategy and our investment policy; h) reviewing and approving related-party transactions; and i) reviewing
threatened or pending litigation matters and investigating matters brought to the committees attention that are within the scope
of its duties.
The Audit Committee also reviews and discusses
with our management and independent registered public accounting firm the financial statements and disclosures in our quarterly
financial press releases and SEC filings. In performing its responsibilities, the Audit Committee has reviewed and discussed with
management and the Company’s independent auditors the audited financial statements in the Company’s Annual Report.
The Audit Committee has also discussed with the independent registered public accounting firm matters required to be discussed
by Auditing Standard No. 61, Professional Standards, as adopted by the Public Company Accounting Oversight Board (“
PCAOB
”).
The Audit Committee has received the written disclosures and the letter from the Company’s independent accountant required
by applicable requirements of the PCAOB regarding the independent accountant's communications with the Audit Committee concerning
independence, and has discussed with our independent registered public accounting firm such firm’s independence. Based on
the reviews and discussions referred to above, the Audit Committee unanimously recommended to the Board that the audited financial
statements be included in the Annual Report.
|
Audit Committee
|
|
James McNulty
|
|
Gary Sligar
|
We do not have a formal policy regarding the
consideration of any director candidates which may be recommended by our stockholders, including the minimum qualifications for
director candidates, nor has our Board established a process for identifying and evaluating director nominees, nor do we have a
policy regarding director diversity. We have not adopted a policy regarding the handling of any potential recommendation of director
candidates by our stockholders, including the procedures to be followed. Our Board has not considered or adopted any of these policies
as we have never received a recommendation from any stockholder for any candidate to serve on our Board. We do not know if any
of our stockholders will make a recommendation for any candidate to serve on our Board given the relatively small size of our company.
Section 16(a) Beneficial Ownership Reporting
Compliance
Section 16(a) of the Exchange Act requires
our executive officers and directors, and persons who beneficially own more than 10% of a registered class of our equity securities
to file with the SEC initial statements of beneficial ownership, reports of changes in ownership and annual reports concerning
their ownership of our common shares and other equity securities, on Forms 3, 4 and 5 respectively. Executive officers, directors
and greater than 10% stockholders are required by the SEC regulations to furnish us with copies of all Section 16(a) reports they
file. Based on our review of the copies of such forms received by us, and to the best of our knowledge, all executive officers,
directors and persons holding greater than 10% of our issued and outstanding stock have filed the required reports in a timely
manner during fiscal year 2016 with the exception of: (i) two late Form 4’s filed by each of Joseph Dowling, Michael J. Mona
Jr., Larry Raskin and Roen Ventures, LLC, Mai Dun Limited, LLC, Mercia Holdings, LLC, Mackay Ventures, LLC and Bart Mackay, as
a group (the “
Mackay Group
”); (ii) one late Form 3 filed by each of James McNulty and Gary Sligar; and
(iii) one late Form 4 filed by each of Michael Mona, III, James McNulty and Bart Mackay, individually. Each of the abovementioned
reports contained one transaction except for the Form 3 filed by Mr. Sligar and one Form 4 filed by each of Mr. McNulty and the
Mackay Group, each of which contained two transactions, and one Form 4 filed by Mr. Raskin which contained 4 transactions.
Other Directorships
Other than as disclosed above, during the last
5 years, none of our directors held any other directorships in any company with a class of securities registered pursuant to Section
12 of the Exchange Act or subject to the requirements of Section 15(d) of such Act or any company registered as an investment company
under the Investment Company Act of 1940.
Board Leadership Structure
The Company does not have a lead independent
director and does not believe one is necessary. We believe our leadership structure is appropriate for the size and scope of operations
of a company of our size.
Board’s Role in Risk Management
The Board is responsible for oversight of risks
facing the Company, while our management is responsible for day-to-day management of risk. The Board, as a whole, directly oversees
our strategic and business risk, including financial reporting related risk and product development risk. We believe the Board,
as a whole, supports its role in risk oversight, with our Chief Executive Officer, President, and our Chief Financial Officer responsible
for assessing and managing risks facing the Company day-to-day and other members of the Board providing oversight of such risk
management.
Code of Ethics
We have adopted a corporate code of ethics
that applies to our principal executive officer, principal financial officer, principal accounting officer or controller, or persons
performing similar functions. A copy of the code is attached as Exhibit 14.1 to the Annual Report which accompanies this proxy
statement.
Family Relationships
Our Chief Operating Officer, Michael Mona,
III, is the son of our President, Chief Executive Officer and Director, Michael Mona, Jr.
Compensation of Directors
We have an informal plan for compensating our
directors for their services, whereby during 2016 each director, other than our Chairman, received $500 per meeting of the Board
of Directors attended. Each of our directors is expected in the future to receive stock grants as further compensation for their
services.
Name of Directors
* indicates Independent
Director
|
|
Fiscal Year
|
|
|
Fees earned
or paid in
cash
($)
|
|
|
Stock
Awards
($)
|
|
|
Option
Awards
($)
|
|
|
All other
compensation
($) (6)
|
|
|
Total ($)
|
|
Bart Mackay (1)
|
|
|
2016
|
|
|
$
|
500
|
|
|
$
|
10,625
|
|
|
$
|
–
|
|
|
$
|
30,831
|
|
|
$
|
41,956
|
|
|
|
|
2015
|
|
|
$
|
1,500
|
|
|
$
|
35,000
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
36,500
|
|
* Larry Raskin (2)
|
|
|
2016
|
|
|
$
|
500
|
|
|
$
|
–
|
|
|
$
|
64,138
|
|
|
$
|
–
|
|
|
$
|
64,638
|
|
|
|
|
2015
|
|
|
$
|
1,500
|
|
|
$
|
–
|
|
|
$
|
9,986
|
|
|
$
|
–
|
|
|
$
|
11,486
|
|
* James McNulty (3)
|
|
|
2016
|
|
|
$
|
1,000
|
|
|
$
|
–
|
|
|
$
|
64,138
|
|
|
$
|
–
|
|
|
$
|
65,138
|
|
|
|
|
2015
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
* Gary Sligar (4)
|
|
|
2016
|
|
|
$
|
500
|
|
|
$
|
–
|
|
|
$
|
64,138
|
|
|
$
|
–
|
|
|
$
|
64,638
|
|
|
|
|
2015
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
* Stephen Schmitz (5)
|
|
|
2016
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
|
|
2015
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
(1)
|
Resigned on June 1, 2016.
|
|
(2)
|
Resigned on May 5, 2017.
|
|
(3)
|
Appointed on January 4, 2016.
|
|
(4)
|
Appointed on June 2, 2016.
|
|
(5)
|
Appointed on May 10, 2017.
|
|
(6)
|
Represents the Black-Scholes value for the issuance of a warrant of 100,000 shares to Bart Mackay on July 6, 2016 in recognition of his valuable service to the Company and in connection with his resignation as previously reported in the July 2016 8-K (defined below).
|
On March 16, 2015, Bart Mackay was awarded
25,000 shares of common stock with a value equal to the fair market value of the Company’s common stock at the time of award.
On December 17, 2015, the Board of Directors of the Company approved an award of 25,000 shares of common stock to Bart Mackay with
a value equal to the fair market value of the Company’s common stock at the time of grant. On June 2, 2016, the Board of
Directors of the Company approved an award of 25,000 shares of common stock to Bart Mackay with a value equal to the fair market
value of the Company’s common stock at the time of grant. On July 6, 2016, the Board of Directors of the Company approved
the issuance of a warrant for 100,000 shares to Bart Mackay. The warrant has a term of ten (10) years, was 100% vested as of the
date of issuance and was issued with an exercise price equal to the fair market value of the Company’s common stock at the
time of issuance.
On September 23, 2015, the Compensation Committee
approved the grant of 25,000 stock options to Mr. Raskin. The stock option has a term of ten (10) years, was 100% vested as of
the date of grant and was granted with an exercise price equal to the fair market value of the Company’s common stock at
the time of the grant. As of May 15, 2017, 25,000 option shares have vested, and Mr. Raskin has not exercised any stock options.
On July 6, 2016, the Board of Directors, in
recognition of the Board’s services, approved the grant of 200,000 stock options to each of Larry Raskin, James McNulty and
Gary Sligar in recognition of such individual’s respective Board service. The stock options have a term of ten (10) years,
are durational-based, vesting in twenty-four (24) equal monthly installments measured from the date of grant and were granted with
an exercise price equal to the fair market value of the Company’s common stock at the time of grant. As of May 15, 2017,
83,333 option shares have vested with respect to each such grant. On July 6, 2016, the Board of Directors of the Company approved
the grant of 50,000 stock options to Larry Raskin, James McNulty and Gary Sligar. The stock options have a term of ten (10) years,
are 100% vested as of the date of grant and were granted with an exercise price equal to the fair market value of the Company’s
common stock at the time of grant. None of the recipients has exercised any of the foregoing stock options.
Conflicts of Interest
Our directors and officers are not obligated
to commit their full time and attention to our business and, accordingly, they may encounter a conflict of interest in allocating
their time between our operations and those of other businesses. In the course of their other business activities, they may become
aware of investment and business opportunities which may be appropriate for presentation to us as well as other entities to which
they owe a fiduciary duty. As a result, they may have conflicts of interest in determining to which entity a particular business
opportunity should be presented. They may also in the future become affiliated with entities that are engaged in business activities
similar to those we intend to conduct.
In general, officers and directors of a corporation
are required to present business opportunities to the corporation if:
|
·
|
the corporation could financially undertake the opportunity;
|
|
·
|
the opportunity is within the corporation’s line of business; and
|
|
·
|
it would be unfair to the corporation and its stockholders not to bring the opportunity to the attention of the corporation.
|
We have adopted a code of ethics that obligates
our directors, officers and employees to disclose potential conflicts of interest and prohibits those persons from engaging in
such transactions without our consent.
Board Communications with Stockholders
Stockholders desiring to communicate with the
Board or any individual member should do so by sending regular mail to Board of Directors, or such director, care of Corporate
Secretary, 2688 South Rainbow Boulevard, Suite B, Las Vegas, Nevada 89146. All communications will be compiled by the corporate
Secretary and forwarded to the Board or the appropriate director accordingly.
EXECUTIVE COMPENSATION
The following table
summarizes all compensation recorded by us in each of the last two completed fiscal years for our principal executive officer,
each other executive officer serving as such whose annual compensation exceeded $100,000 and up to two additional individuals for
whom disclosure would have been made in this table but for the fact that the individual was not serving as an executive officer
of our company at December 31, 2016. The value attributable to any option awards, if any, is computed in accordance with FASB ASC
718
Share-Based-Payment
(“
ASC 718
”).
Summary Compensation
Table
Name and Principal Position
|
|
Fiscal
Year
|
|
Salary
($)
|
|
|
Bonus
($)
|
|
|
Stock
Awards
($) (1)
|
|
|
Option
Awards
($) (2)
|
|
|
Non-Equity
Incentive Plan
Compensation
($)(3)
|
|
|
Nonqualified
Deferred
Compensation
($)
|
|
|
All Other
Compensation
($) (4)
|
|
|
Total ($)
|
|
Michael Mona Jr.
|
|
2016
|
|
$
|
314,808
|
|
|
$
|
20,000
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
485,442
|
|
|
$
|
–
|
|
|
$
|
47,560
|
|
|
$
|
867,810
|
|
Chairman, CEO
|
|
2015
|
|
$
|
300,000
|
|
|
$
|
15,000
|
|
|
$
|
–
|
|
|
$
|
790,740
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
1,105,740
|
|
Michael Mona III
|
|
2016
|
|
$
|
202,212
|
|
|
$
|
20,000
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
314,710
|
|
|
$
|
–
|
|
|
$
|
37,915
|
|
|
$
|
574,837
|
|
Chief Operating Officer
|
|
2015
|
|
$
|
180,000
|
|
|
$
|
15,000
|
|
|
$
|
590,000
|
|
|
$
|
183,959
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
968,959
|
|
Joseph Dowling
|
|
2016
|
|
$
|
262,340
|
|
|
$
|
20,000
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
98,745
|
|
|
$
|
–
|
|
|
$
|
10,500
|
|
|
$
|
391,585
|
|
Chief Financial Officer and Secretary
|
|
2015
|
|
$
|
215,384
|
|
|
$
|
15,000
|
|
|
$
|
–
|
|
|
$
|
240,339
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
–
|
|
|
$
|
470,723
|
|
______________________________
|
(1)
|
These amounts reflect the grant date fair value of stock awards as determined by the market price of the Common Stock on the date of grant.
|
|
(2)
|
These amounts reflect the grant date fair value of stock options as determined under ASC Topic 718 and using the Black-Scholes model. The underlying valuation assumptions for stock option awards are further disclosed in Note 11 to our consolidated financial statements filed with our Annual Report on Form 10-K for the year ended December 31, 2016.
|
|
(3)
|
These amounts reflect the grant date fair value of stand-alone stock options which were not granted under the Amended 2013 Plan (as defined below) as determined under ASC Topic 718 and using the Black-Scholes model. The underlying valuation assumptions for stock option awards are further disclosed in Notes 11 and 15 to our consolidated financial statements filed with this Annual Report on Form 10-K for the year ended December 31, 2016.
|
|
(4)
|
These amounts reflect $36,824 related to an auto lease and $10,736 related to life insurance premiums paid by the Company on behalf of Michael Mona Jr, $37,915 related to an auto lease paid by the Company on behalf of Michael Mona III and $10,500 related to an auto allowance provided to Joseph Dowling during the year ended December 31, 2016.
|
Compensation Arrangements
and Determination of Compensation
We rely on our judgment
in making compensation decisions, after reviewing the performance of the Company and carefully evaluating an executive’s
performance during the year against established goals, leadership qualities, operational performance, business responsibilities,
and career with the Company, current compensation arrangements and long-term potential to enhance stockholder value.
The Board of Directors
approved a salary of $330,000 for our President and Chief Executive Officer on July 6, 2016 in connection with the entry of the
Company into an Employment Agreement with Mr. Mona, Jr. on the same date (the “
Mona Employment Agreement
”),
as previously discussed in the Current Report on Form 8-K filed by the Company with the SEC on July 11, 2016 (the “
July
2016 8-K
”). During fiscal year 2016, Mr. Mona, Jr. was paid an aggregate sum of $867,810. During fiscal year 2015,
Mr. Mona, Jr. was paid an aggregate sum of $1,105,740. On December 8, 2014, the Compensation Committee approved the grant of 4,000,000
stock options to Mr. Mona, Jr. (the “
December 2014 Option
”). The stock option has a term of ten (10)
years, is durational based, with 67% vested as of the date of grant, and the remainder vesting in twelve (12) equal monthly installments
measured from January 31, 2015, and was granted with an exercise price equal to the fair market value of the Company’s common
stock at the time of the grant. On September 23, 2015, the Compensation Committee approved the grant of 1,470,000 stock options
to Mr. Mona, Jr. The stock option has a term of ten (10) years, was 100% vested as of the date of grant and was granted with an
exercise price equal to the fair market value of the Company’s common stock at the time of the grant. On December 28, 2015,
the Compensation Committee approved the grant of 530,000 stock options to Mr. Mona, Jr. The stock option has a term of ten (10)
years, was 100% vested as of the date of grant and was granted with an exercise price equal to the fair market value of the Company’s
common stock at the time of grant. As previously discussed in the July 2016 8-K, on July 6, 2016, the Compensation Committee approved
the grant of 6,000,000 standalone stock options to Mr. Mona, Jr. which were not granted under the Company’s Amended and Restated
2013 Equity Incentive Plan (the “
Amended 2013 Plan
”). As set forth in the Current Report on Form 8-K
filed with the SEC on March 22, 2017 (the “
March 2017 8-K
”), the terms of the option were subsequently
amended and the stock grant has a term of ten (10) years, is performance-based, with the option shares vesting upon the completion
of each of four defined option performance conditions. As previously reported by the Company in the March 2017 8-K, on March 15,
2017, the Board approved an amendment to the Mona Employment Agreement to provide eligibility for a cash bonus upon the occurrence
of certain liquidity events of the Company as more particularly set forth in the March 2017 8-K and approved the re-pricing of
the exercise price of the December 2014 Option to $0.38 per share, which represents the fair market value of the Company’s
common stock as of such date. Section 162(m) of the Internal Revenue Code of 1986, as amended, denies a deduction to any publicly-held
corporation for compensation paid to certain “covered employees” in a taxable year to the extent that compensation
to such covered employee exceeds $1 million, subject to certain exceptions. It is possible that compensation attributable to the
standalone option awards granted to Mr. Mona, Jr. and Mr. Dowling and Mr. Mona, III, as further discussed below, when combined
with all other types of compensation received by such individuals from the Company, may cause this limitation to be exceeded in
any particular year.
The Board of Directors
approved a salary of $225,000 for our Chief Operating Officer on July 6, 2016 in connection with the entry of the Company into
an Employment Agreement with Mr. Mona, III on the same date (the “
Mona III Employment Agreement
”) as
previously discussed in the July 2016 8-K. During fiscal year 2016, Mr. Mona, III was paid an aggregate sum of $574,837. During
fiscal year 2015, Mr. Mona, III was paid an aggregate sum of $968,959. On October 1, 2014, the Compensation Committee approved
the grant of 500,000 stock options to Mr. Mona, III (the “
Mona III October 2014 Option
”). The stock option
has a term of ten (10) years, is durational-based, with 229,166 option shares vested on the grant date, and the remaining option
shares vesting in twenty-six (26) equal monthly installments measured from October 1, 2014, and was granted with an exercise price
equal to the fair market value of the Company’s common stock at the time of the grant. On January 2, 2015, the Compensation
Committee approved the award of 250,000 shares of common stock to the Company’s Vice President of Operations, Michael Mona,
III, with a value equal to the fair market value of the Company’s common stock at the time of the award. On September 23,
2015, the Compensation Committee approved the grant of 343,000 stock options to Mr. Mona, III. The stock option has a term of ten
(10) years, is durational based, with 50% vesting on the one year anniversary date of grant, and the remainder vesting in twelve
(12) equal monthly installments measured from September 23, 2016, and was granted with an exercise price equal to the fair market
value of the Company’s common stock at the time of the grant. As previously discussed in the July 2016 8-K, on July 6, 2016,
the Compensation Committee approved the grant of 4,000,000 standalone stock options to Mr. Mona, III which were not granted under
the Amended 2013 Plan. As set forth in the March 2017 8-K, the terms of the option were subsequently amended and the stock grant
has a term of ten (10) years, is performance-based, with the option shares vesting upon the completion of each of four defined
option performance conditions. As previously reported by the Company in the March 2017 8-K, on March 15, 2017, the Board approved
an amendment to the Mona III Employment Agreement to provide eligibility for a cash bonus upon the occurrence of certain liquidity
events of the Company as more particularly set forth in the March 2017 8-K and approved the re-pricing of the exercise price of
the Mona III October 2014 Option to $0.38 per share, which represents the fair market value of the Company’s common stock
as of such date.
The Board of
Directors approved a salary of $275,000 for our Chief Financial Officer on July 6, 2016 in connection with the entry of the Company
into an Employment Agreement with Mr. Dowling on the same date, as previously discussed in the July 2016 8-K. During fiscal year
2016, Mr. Dowling was paid an aggregate sum of $391,585. During the fiscal year 2015, Mr. Dowling was paid an aggregate sum of
$470,723. On October 1, 2014, the Compensation Committee approved the grant of 600,000 stock options to Mr. Dowling (the “
Dowling
October 2014 Option
”). The stock option is durational-based, with 25% vested on June 16, 2015, and the remaining
options vesting in 36 equal monthly installments measured from June 16, 2015, and was granted with an exercise price equal to
the fair market value of the Company’s common stock at the time of the grant. On May 21, 2015, the Compensation Committee
approved a grant of 100,000 stock options to Mr. Dowling (the “
May 2015 Option
”). The stock option is
durational-based, with 25% vested on May 21, 2016, and the remaining options vesting in 36 equal monthly installments. On September
23, 2015, the Compensation Committee approved the grant of 200,000 stock options to Mr. Dowling. The stock option has a term of
ten (10) years, is durational based, with 50% vesting on the one year anniversary date of grant, and the remainder vesting in
twelve (12) equal monthly installments measured from September 23, 2016, and was granted with an exercise price equal to the fair
market value of the Company’s common stock at the time of the grant. On December 28, 2015, the Compensation Committee approved
the grant of 150,000 stock options to Mr. Dowling. The stock option is durational-based, with 50% of the shares subject to the
option vested on September 23, 2016 and the remaining options vesting in twelve (12) successive equal monthly installments measured
from September 23, 2016, and was granted with an exercise price equal to the fair market value of the Company’s common stock
at the time of the grant. As previously discussed in the July 2016 8-K, on July 6, 2016, the Compensation Committee approved the
grant of 1,000,000 standalone stock options to Mr. Dowling which were not granted under the Amended 2013 Plan. As set forth in
the March 2017 8-K, the terms of the options were subsequently amended and the stock grant has a term of ten (10) years, is performance-based,
with the option shares vesting upon the completion of each of four defined option performance conditions. As previously reported
by the Company in the March 2017 8-K, on March 15, 2017, the Board approved the re-pricing of the exercise price of the Dowling
October 2014 Option and May 2015 Option to $0.38 per share, which represents the fair market value of the Company’s common
stock as of such date.
Option Grants
On July 23, 2014, Company stockholders approved
the Amended 2013 Plan, which provides for the granting of stock options, restricted stock awards, restricted stock units, stock
bonus awards and performance based awards. This Amended 2013 Plan serves as the successor to the 2013 Equity Incentive Plan. There
were no option awards under the 2013 Equity Incentive Plan. On December 21, 2015, Company stockholders approved an amendment to
the Amended 2013 Plan, increasing the number of shares that may be issued under the Amended 2013 Plan to 15,000,000 shares of common
stock. On October 24, 2016, Company stockholders approved another amendment to the Amended 2013 Plan, increasing the number of
shares that may be issued under the Amended 2013 Plan to 20,000,000. As of December 31, 2016, the Company had 7,159,000 of authorized
unissued shares reserved and available for issuance under the Amended 2013 Plan.
Outstanding Equity Awards at Fiscal Year End
The following table
provides a summary of all outstanding equity awards for Named Executive Officers at the end of fiscal year 2016.
|
|
Option Awards
|
Name
|
|
Award Grant
and
Commencement
of Vesting Date
|
|
|
Number of
securities
underlying
unexercised
option (#)
exercisable
|
|
|
|
Number of
securities
underlying
unexercised
option (#)
unexercisable
|
|
|
|
Option
exercise
price
($)
|
|
Option
Expiration
Date
|
Michael Mona Jr.
|
|
12/8/2014
|
|
|
4,000,000
|
|
|
|
–
|
|
|
$
|
2.64
|
(1)
|
|
12/8/2024
|
Chairman, CEO
|
|
9/23/2015
|
|
|
1,470,000
|
|
|
|
–
|
|
|
$
|
0.73
|
|
|
9/23/2025
|
|
|
12/28/2015
|
|
|
530,000
|
|
|
|
–
|
|
|
$
|
0.16
|
|
|
12/28/2025
|
|
|
10/5/2016
|
|
|
1,500,000
|
|
|
|
–
|
|
|
$
|
0.37
|
|
|
7/5/2026
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Joseph Dowling
|
|
10/1/2014
|
|
|
374,964
|
|
|
|
225,036
|
|
|
$
|
2.82
|
(1)
|
|
10/1/2024
|
Chief Financial Officer and Secretary
|
|
5/21/2015
|
|
|
39,581
|
|
|
|
60,419
|
|
|
$
|
1.39
|
(1)
|
|
5/21/2025
|
|
|
9/23/2015
|
|
|
125,000
|
|
|
|
75,000
|
|
|
$
|
0.73
|
|
|
9/23/2025
|
|
|
12/28/2015
|
|
|
93,750
|
|
|
|
56,250
|
|
|
$
|
0.16
|
|
|
12/28/2025
|
|
|
10/5/2016
|
|
|
250,000
|
|
|
|
–
|
|
|
$
|
0.37
|
|
|
7/5/2026
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael Mona III
|
|
10/1/2014
|
|
|
500,000
|
|
|
|
–
|
|
|
$
|
2.82
|
(1)
|
|
10/1/2024
|
Chief Operating Officer
|
|
9/23/2015
|
|
|
214,375
|
|
|
|
128,625
|
|
|
$
|
0.73
|
|
|
9/23/2025
|
|
|
10/5/2016
|
|
|
1,000,000
|
|
|
|
–
|
|
|
$
|
0.37
|
|
|
7/5/2026
|
____________
(1) As previously reported by the Company in the March 2017 8-K, on March 15, 2017, the Board approved the
re-pricing of the exercise price of the December 2014 Option, the Dowling October 2014 Option, the May 2015 Option, and the Mona
III October 2014 Option to $0.38 per share, which represents the fair market value of the Company’s common stock as of such
date.
Pension, Retirement or Similar Benefit Plans
During fiscal years 2015 and 2016 there were
no arrangements or plans in which we provided pension, retirement or similar benefits to our directors or executive officers. During
2015 and 2016 we had no material bonus or profit sharing plans pursuant to which cash or non-cash compensation was or may be paid
to our directors or executive officers, except that stock options could be granted at the discretion of the Board or a committee
thereof.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS,
AND DIRECTOR INDEPENDENCE
Except for the transactions described below,
none of our directors, nominees for director, officers or principal stockholders, nor any associate or affiliate of the foregoing,
have had any interest, direct or indirect, in any transaction or in any proposed transaction since January 1, 2016, which materially
affects the Company or has affected the Company.
As previously discussed in the July 2016
8-K, on July 6, 2016, the Compensation Committee approved the grant of 6,000,000 stock options to Mr. Mona, Jr. As set forth in
the March 2017 8-K, the terms of the options were subsequently amended and the stock grant has a term of ten (10) years, is performance-based,
with the option shares vesting upon the completion of each of four defined option performance conditions. In addition, as set
forth in the March 2017 8-K, the disinterested members of the Board approved the grant of 200,000 stock options pursuant to the
bonus plan set forth in the Employment Agreement for fiscal year 2016. The stock option has a term of ten (10) years, was 100%
vested as of the date of grant and was granted with an exercise price equal to the fair market value of the Company’s common
stock at the time of grant. Furthermore, as set forth in the March 2017 8-K, the disinterested members of the Board approved the
grant of 5,000,000 stock options to Mr. Mona, Jr. The stock options (a) are durational-based, conditional upon the Company’s
receipt of the final meeting minutes from a pre-investigational new drug application (“IND”) meeting as authorized
by the FDA for a drug development program utilizing CBD as the active pharmaceutical ingredient, 25% vesting when the Company
is granted an IND and 50% vesting when the Company commences its first human dosing under the IND, (b) have an exercise price
equal to the fair market value of the Company’s stock at the time of grant and (c) have a term of ten (10) years from the
date of grant and vesting shall accelerate upon a sale of the company or change in control.
As previously discussed in the July 2016 8-K,
on July 6, 2016, the Compensation Committee approved the grant of 1,000,000 stock options to Mr. Dowling. As set forth in the March
2017 8-K, the terms of the option were subsequently amended and the stock grant has a term of ten (10) years, is performance-based,
with the option shares vesting upon the completion of each of four defined option performance conditions. In addition, as set forth
in the March 2017 8-K, the disinterested members of the Board approved the grant of 100,000 stock options pursuant to the bonus
plan set forth in the Employee Agreement for fiscal year 2016. The stock option has a term of ten (10) years, was 100% vested as
of the date of grant and was granted with an exercise price equal to the fair market value of the Company’s common stock
at the time of grant. Furthermore, as set forth in the Company’s Current Report on Form 8-K filed with the SEC on April 12,
2017 (the “
April 2017 8-K
”), the disinterested members of the Board approved the grant of 1,000,000 stock
options to Mr. Dowling. The stock options (a) are durational-based, conditional upon the Company’s receipt of the final meeting
minutes from a IND meeting as authorized by the FDA for a drug development program utilizing CBD as the active pharmaceutical ingredient,
25% vesting when the Company is granted an IND and 50% vesting when the Company commences its first human dosing under the IND,
(b) have an exercise price equal to the fair market value of the Company’s stock at the time of grant and (c) have a term
of ten (10) years from the date of grant and vesting shall accelerate upon a sale of the company or change in control.
As previously discussed in the July 2016 8-K,
on July 6, 2016, the Compensation Committee approved the grant of 4,000,000 stock options to Mr. Mona, III. As set forth in the
March 2017 8-K, the terms of the option were subsequently amended and the stock grant has a term of ten (10) years, is performance-based,
with the option shares vesting upon the completion of each of four defined option performance conditions. In addition, as set forth
in the March 2017 8-K, the disinterested members of the Board approved the grant of 100,000 stock options pursuant to the bonus
plan set forth in the Employee Agreement for fiscal year 2016. The stock option has a term of ten (10) years, was 100% vested as
of the date of grant and was granted with an exercise price equal to the fair market value of the Company’s common stock
at the time of grant. Furthermore, as set forth in the April 2017 8-K, the disinterested members of the Board approved the grant
of 1,000,000 stock options to Mr. Mona, III. The stock options (a) are durational-based, conditional upon the Company’s receipt
of the final meeting minutes from a IND meeting as authorized by the FDA for a drug development program utilizing CBD as the active
pharmaceutical ingredient, 25% vesting when the Company is granted an IND and 50% vesting when the Company commences its first
human dosing under the IND, (b) have an exercise price equal to the fair market value of the Company’s stock at the time
of grant and (c) have a term of ten (10) years from the date of grant and vesting shall accelerate upon a sale of the company or
change in control.
Vesting of the options discussed in the July
2016 8-K, the March 2017 8-K and the April 2017 8-K shall accelerate upon a sale of the Company or a change in control, including
a “Disposition Event” as defined under the Agreement and Plan of Reorganization dated December 30, 2015 by and among
the Company (formerly CannaVest Corp.), CANNAVEST Merger Sub, Inc., the LLC, CanX Inc. (“
CanX
”) and the
Starwood Trust (as amended from time to time, the “
Purchase Agreement
”). The Purchase Agreement is filed
as an exhibit to the Company’s Current Report on Form 8-K filed with the SEC on January 4, 2016 (the “
January
2016 8-K
”).
As further discussed in the March 2017 8-K,
on March 16, 2017, the parties to the Purchase Agreement entered into an amendment to the Purchase Agreement (the “
Purchase
Agreement Amendment
”) pursuant to which the Company agreed to issue the additional contingent consideration without
the Company having achieved the remaining post-closing milestones and agreed to certain revisions to the buy-out option of the
Company for the royalty payments otherwise due to the former shareholders of CanX, as further discussed in the January 2016 8-K.
As disclosed in the January 2016 8-K, James McNulty, a member of the Board, is a former shareholder of CanX and thereby received
a pro rata portion of the consideration paid to the former CanX shareholders. Mr. McNulty received 2,850,000 shares of common stock
of the Company in connection with the Purchase Agreement Amendment.
For the year ended December 31, 2016 the Company
recognized $0 sales to related parties. For the year ended December 31, 2015, the Company recognized sales to the following related
parties.
Party
|
|
Relationship
|
|
For the year ended
December 31, 2015
|
|
Medical Marijuana, Inc. ("MJNA")
|
|
Stockholder
|
|
$
|
2,002,910
|
|
Percent of total sales
|
|
|
|
|
17.4%
|
|
We recognized litigation revenue of $756,714
for the year ended December 31, 2015 related to our Settlement Agreement with MJNA, HempMeds PX, LLC, Kannaway, LLC, General Hemp,
LLC, HDDC Holdings, LLC, Rabbit Hole Technologies, Inc., Hemp Deposit and Distribution Corporation and MJNA Holdings, LLC (collectively,
the “MJNA Parties”). Pursuant to the Settlement Agreement, the MJNA Parties paid us the sum of $150,000 and delivered
a promissory note in the principal amount of $600,000 (the “Settlement Note”), bearing interest at the rate of 6% per
annum, payable in six equal monthly installments of $101,757 commencing August 15, 2015. The promissory note was secured by shares
of our common stock held by the MJNA Parties. In November 2015, MJNA failed to timely pay the fourth payment installment under
the Settlement Note and therefore defaulted on the Settlement Note. On December 3, 2015, we foreclosed on the Settlement Note collateral
consisting of our common stock. The foreclosure resulted in us obtaining rights to receive 624,600 shares of its common stock in
full satisfaction of the remaining principal and accrued interest balance. At the foreclosure date, we took immediate possession
of 500,000 shares held in escrow. The Settlement Note balance of $60,351 at December 31, 2015 represents the fair value at the
foreclosure date of the remaining 124,600 shares. In December 2016, we obtained the remaining 124,600 shares of Company common
stock held as collateral from the MJNA Parties pursuant to the terms of the Settlement Note, which were immediately cancelled upon
receipt.
We also recognized revenue related to the sale
of our products to MJNA of $2,000,000 for the year ended December 31, 2015 and received a promissory note in the principal amount
$2,002,910 (the “MJNA Promissory Note”) that was to be paid in 12 equal installments beginning on November 3, 2015
in exchange for products shipped to MJNA. The MJNA Promissory Note was secured by 2,000,000 shares of the Company’s common
stock held in escrow (the “collateral shares”). MJNA failed to make any payments on the MJNA Promissory Note owned
by MJNA. At December 31, 2015, the fair value of the collateral was determined to be $480,000 equal to the $0.24 per share closing
price of the Company’s common stock as of December 31, 2015, multiplied by the 2,000,000 shares of Company common stock.
As a result, the Company recorded a loss of $1,522,910 related to the MJNA Promissory Note for the year ended December 31, 2015.
On November 11, 2016, we entered into a Mutual Release and Satisfaction of the Note with MJNA (the “Note Release”).
As part of the Note Release, MJNA paid us $859,486 in full satisfaction of all obligations outstanding with regards to the MJNA
Promissory Note, as specified in the Amendment. As a result, we recorded a gain of $379,486, presented as a separate line item
in the consolidated financial statements within operating income/(loss).
In addition, during the year ended 2016,
a portion of our products previously sold to MediJane Holdings (“
MJMD
”), valued at $77,330 at December
31, 2015, were returned to us in February 2016 with the remaining products returned in June 2016. In connection with the return
of the remaining products, a bad debt expense of $9,218 was recorded during the fiscal year ended December 31, 2016.
During the years ended December 31, 2016 and
2015, the Company paid $412,822 and $3,948,304, respectively, to a stockholder of the Company who is a supplier of hemp oil and
hemp to the Company. In addition, during the year ended 2016, the Company issued 500,000 shares of common stock in connection with
consulting services from a European supplier valued based on the closing trading price of the Company’s common stock on the
date of issuance and was expensed to selling, general and administrative expense.
There have been no other transactions since
the beginning of our last fiscal year or any currently proposed transactions in which we are, or plan to be, a participant and
the amount involved exceeds the lesser of $120,000 or one percent (1%) of the average of our total assets at year end for the last
two completed fiscal years, and in which any related person had or will have a direct or indirect material interest. We have not
adopted any formal procedures for the review or ratification, or standards for approval, of related-party transactions but instead
review such transactions on a case-by-case basis.
Director Independence
Our securities are quoted on the OTC: QB,
which does not have any director independence requirements. However, the Board of Directors has determined that three members
of our Board, Mr. McNulty, Mr. Sligar and Dr. Schmitz, are independent under the New York Stock Exchange Listing Manual and that
Mr. McNulty and Mr. Sligar are independent as independence for audit committee members is defined in the New York Stock Exchange
Listing Manual. Prior to his resignation on June 1, 2016, the Board had not determined that Mr. Bart Mackay was independent under
the New York Stock Exchange Listing Manual. Prior to his resignation on May 5, 2017, the Board had determined that Mr. Larry Raskin
was independent under the New York Stock Exchange Listing Manual.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL
OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS
Beneficial Ownership of Directors, Officers
and 5% Stockholders
Beneficial ownership is determined in accordance
with the rules of the SEC. In computing the number of shares beneficially owned by a person and the percentage of ownership of
that person, shares of common stock subject to options and warrants held by that person that are currently exercisable or become
exercisable within 60 days are deemed outstanding even if they have not actually been exercised. Those shares, however, are not
deemed outstanding for the purpose of computing the percentage ownership of any other person. The following table sets forth, as
of May 15, 2017, certain information as to shares of our common stock owned by (i) each person known to beneficially own more than
five percent of our outstanding common stock or preferred stock, (ii) each of our directors, and executive officers named in our
summary compensation table, and (iii) all of our executive officers and directors as a group. Unless otherwise indicated, the address
of each named beneficial owner is the same as that of our principal executive offices located at 2688 South Rainbow Boulevard,
Suite B, Las Vegas, NV 89146.
Name and Address
of Beneficial Owner (1)
|
|
|
Number of Shares
of Common Stock
Beneficially Owned (2)
|
|
|
Percent of
Common Stock
Beneficially Owned
|
Mai Dun Limited (3)
|
|
|
5,463,162
|
|
|
6.14%
|
Mackay Ventures, LLC (4)
|
|
|
6,027,094
|
|
|
6.78%
|
Michael Mona III (5)
|
|
|
3,627,124
|
|
|
3.99%
|
Joseph Dowling (6)
|
|
|
983,332
|
|
|
1.09%
|
Michael Mona, Jr (7)
|
|
|
7,700,000
|
|
|
7.97%
|
Bart Mackay (8)
|
|
|
6,256,726
|
|
|
7.03%
|
James McNulty (9)
|
|
|
3,049,999
|
|
|
3.42%
|
Gary Sligar (10)
|
|
|
149,999
|
|
|
*
|
Stephen Schmitz (11)
|
|
|
956,000
|
|
|
1.08%
|
All executive officers and directors as a group (six persons)
|
|
|
16,466,454
|
|
|
16.49%
|
_______________________
* Less than 1%
|
(1)
|
Beneficial ownership has been determined in accordance with Rule 13d-3 under the Exchange Act. Pursuant to the rules of the SEC, shares of our common stock that each named person and group has the right to acquire within 60 days pursuant to options, warrants, or other rights, are deemed outstanding for purposes of computing shares beneficially owned by the percentage ownership of each such person and group. Applicable percentages are based on 88,951,086 shares of our common stock outstanding on May 15, 2017, and are calculated as required by rules promulgated by the SEC.
|
|
|
|
|
(2)
|
Unless otherwise noted, all shares listed are owned of record and the record owner has sole voting and investment power, subject to community property laws where applicable.
|
|
|
|
|
(3)
|
Representing Mai Dun Limited, LLC’s direct ownership of 5,463,162 shares. The address of Mai Dun
Limited, LLC is 6325 S. Jones Blvd., Suite 500, Las Vegas, Nevada 89118.
|
|
|
|
|
(4)
|
Beneficial ownership of Mackay Ventures LLC is reported based upon its direct ownership of 618,564 shares and its 99% ownership in Mai Dun Limited, LLC. The address of Mackay Ventures LLC is 6325 S. Jones Blvd., Suite 500, Las Vegas, Nevada 89118.
|
|
|
|
|
(
5)
|
Michael Mona, III owns 980,000 shares of record, is a beneficial owner and beneficiary of Mik Nik Trust, which owns 750,000 shares, and on October 1, 2014 was granted a stock option to purchase 500,000 shares of common stock. The stock option has a term of ten (10) years, is durational-based, with 229,166 option shares vested on the grant date, and the remaining option shares vesting in twenty-six (26) equal monthly increments. As of May 15, 2017, 100% of the option shares have vested. In September 2015, the Compensation Committee approved the grant of 343,000 stock options to Mr. Mona, III. The stock option has a term of ten (10) years, is durational based, with 50% vesting on the one year anniversary date of grant, and the remainder vesting in twelve (12) equal monthly installments measured from September 23, 2016, and was granted with an exercise price equal to the fair market value of the Company’s common stock at the time of the grant. As of May 15, 2017, 271,541 option shares have vested and 25,583 option shares will vest within 60 days. On July 6, 2016, Mr. Mona, III was granted an option to purchase 4,000,000 shares of the Company’s Common Stock. The option is performance-based, and vests and becomes exercisable upon the completion of each of four defined option performance conditions. On October 5, 2016, the first performance criteria was met resulting in vesting of the option as to 1,000,000 shares. On March 15, 2017, Mr. Mona III was granted a stock option to purchase 100,000 shares of common stock. The stock option has a term of ten (10) years, is durational-based, was fully-vested on the grant date and has an exercise price equal to the fair market value of the Company’s common stock at the time of grant. As of May 15, 2017, 100% of the option shares have vested.
|
|
(6)
|
On October 16, 2014, the Compensation Committee approved the grant of 600,000 stock options to Mr. Dowling. The stock option is durational-based, with 25% vested on June 16, 2015, and the remaining options vesting in 36 equal monthly installments. As of May 15, 2017, 425,000 option shares have vested and another 25,000 shares will vest within 60 days. On May 21, 2015, the Compensation Committee approved a grant of 100,000 stock options to Mr. Dowling. The stock option is durational-based, with 25% vested on May 21, 2016, and the remaining options vesting in 36 equal monthly installments. As of May 15, 2017, 47,916 option shares have vested and 4,166 option shares will vest within 60 days. In December 2015, the Compensation Committee approved the grant of 150,000 stock options to Mr. Dowling. The stock option is durational-based, with 50% of the shares subject to the option vested on September 23, 2016 and the remaining options vesting in twelve (12) successive equal monthly installments measured from September 23, 2016. As of May 15, 2017, 118,750 option shares have vested and 12,500 will vest within 60 days. On July 6, 2016, Mr. Dowling was granted an option to purchase 1,000,000 shares of the Company’s Common Stock. The option is performance-based, and vests and becomes exercisable upon the completion of each of four defined option performance conditions. On October 5, 2016, the first performance criteria was met resulting in vesting of the option as to 250,000 shares. On March 15, 2017, Mr. Dowling was granted a stock option to purchase 100,000 shares of common stock. The stock option has a term of ten (10) years, is durational-based, was fully-vested on the grant date and has an exercise price equal to the fair market value of the Company’s common stock at the time of grant. As of May 15, 2017, 100% of the option shares have vested.
|
|
(7)
|
On December 8, 2014, the Compensation Committee approved the grant of 4,000,000 stock options to Michael Mona, Jr., the Company’s President and Chief Executive Officer (the “December 2014 Option”). The stock option is durational-based, with 67% vested as of the date of grant and the remainder vesting in twelve (12) equal monthly installments measured from January 31, 2015. In September, 2015, the Compensation Committee approved the grant of 1,470,000 stock options to Mr. Mona. The stock option has a term of ten (10) years, was 100% vested as of the date of grant and was granted with an exercise price equal to the fair market value of the Company’s common stock at the time of the grant. As of May 15, 2017, both grants were fully vested and 5,470,000 option shares have vested under both grants. In December, 2015, the Compensation Committee approved the grant of 530,000 stock options to Mr. Mona. The stock option has a term of ten (10) years, was 100% vested as of the date of grant and was granted with an exercise price equal to the fair market value of the Company’s common stock at the time of grant. As of May 15, 2017, 530,000 option shares have vested. Pursuant to the Decree issued by the Court, the Court awarded 3,000,000 shares of the December 2014 Option to Ms. Rhonda Mona, the ex-wife of Mr. Mona. Pursuant to the Amended 2013 Plan, the stock options to purchase shares of common stock granted under the Amended 2013 Plan may not be transferred, however, pursuant to the Decree Mr. Mona believes that Ms. Mona has shared beneficial ownership of 3,000,000 of the shares of the Company’s common stock that would be acquired upon exercise of the option. On July 6, 2016, Mr. Mona, Jr. was granted an option to purchase 6,000,000 shares of the Company’s Common Stock. The option is performance-based, and vests and becomes exercisable upon the completion of each of four defined option performance conditions. On October 5, 2016, the first performance criteria was met resulting in vesting of the option as to 1,500,000 shares. On March 15, 2017, Mr. Mona, Jr. was granted a stock option to purchase 200,000 shares of common stock. The stock option has a term of ten (10) years, is durational-based, was fully-vested on the grant date and has an exercise price equal to the fair market value of the Company’s common stock at the time of grant. As of May 15, 2017, 100% of the option shares have vested.
|
|
|
|
|
(8)
|
Beneficial ownership of Bart Mackay is reported based upon his
direct ownership of 75,000 shares, his 100% ownership in Mackay Ventures, LLC and his 1% interest in Mai Dun Limited, LLC.
Bart Mackay is deemed to have shared voting and investment power over the shares of the Company’s common stock owned by
each of Mai Dun Limited, LLC and Mackay Ventures LLC. On July 6, 2016, the Board approved the issuance of a common stock
purchase warrant to Mr. Mackay with the right to purchase up to 100,000 shares of the Issuer’s Common Stock (the
“Warrant”). The Warrant was 100% vested as of the date of granted and was granted with an exercise price equal to
the fair market value of the Company’s common stock at the time of grant. As of May 15, 2017, all 100,000 warrant
shares have vested. The address of Bart Mackay is 6325 S. Jones Blvd., Suite 500, Las Vegas, Nevada 89118.
|
|
(9)
|
Mr. McNulty acquired 50,000 shares pursuant to the Purchase
Agreement. Mr. McNulty was a shareholder of CanX, and acquired his shares of the Company in exchange pursuant to the merger
transaction. On July 6, 2016, the Board approved the grant of 50,000 stock options to Mr. McNulty. The stock option has a
term of ten (10) years, was 100% vested as of the date of grant and was granted with an exercise price equal to the fair
market value of the Company’s common stock at the time of the grant. As of May 15, 2017, all 50,000 option shares
have vested, and Mr. McNulty has not exercised any stock options. On July 6, 2016, the Board approved a grant of 200,000
stock options to Mr. McNulty. The stock option has a term of ten (10) years, is durational-based vesting in twenty-four
(24) equal monthly installments measured from July 6, 2016 and an exercise price equal to the fair market value of the
Company’s common stock at the time of grant. As of May 15, 2017, 83,333 shares have vested and another 16,666 will
vest within 60 days. On April 12, 2017, Mr. McNulty acquired 2,850,000 shares of common stock of the Company pursuant
to the Purchase Agreement Amendment. Mr. McNulty was a shareholder of CanX and acquired these shares pursuant to the
issuance of the additional contingent consideration by the Company without the Company having achieved the remaining
post-closing milestones and the revisions to the buy-out option of the Company for the royalty payments otherwise due to
the former shareholders of CanX.
|
|
|
|
|
(10)
|
On July 6, 2016, the Board approved the grant of 50,000 stock options to Mr. Sligar. The stock option
has a term of ten (10) years, was 100% vested as of the date of grant and was granted with an exercise price equal to the fair
market value of the Company’s common stock at the time of the grant. As of May 15, 2017, all 50,000 option shares have vested,
and Mr. Sligar has not exercised any stock options. On July 6, 2016, the Board approved a grant of 200,000 stock options to Mr.
Sligar. The stock option has a term of ten (10) years, is durational-based vesting in twenty-four (24) equal monthly installments
measured from July 6, 2016 and an exercise price equal to the fair market value of the Company’s common stock at the time
of grant. As of May 15, 2017, 83,333 shares have vested and another 16,666 will vest within 60 days.
|
|
|
|
|
(11)
|
Beneficial ownership of Stephen Schmitz is reported based upon his direct ownership of 900,000 shares
and his indirect ownership of 56,000 shares which are held in the name of his son.
|
Equity Compensation Plan Information
On July 23, 2014, Company shareholders approved
the Amended 2013 Plan, which provides for the granting of stock options, restricted stock awards, restricted stock units, stock
bonus awards and performance-based awards. The Amended 2013 Plan serves as the successor to the 2013 Equity Incentive Plan. On
December 21, 2015, Company shareholders approved an amendment to the Amended 2013 Plan, increasing the number of shares that may
be issued to 15,000,000 shares of common stock. On October 24, 2016, Company stockholders approved another amendment to the Amended
2013 Plan, increasing the number of shares that may be issued under the Amended 2013 Plan to 20,000,000. The information set forth
in the table below is provided as of December 31, 2016.
Plan Category
|
|
Number of
securities to
be issued upon
exercise of
outstanding
options,
warrants and
rights
|
|
|
Weighted-
average
exercise price
of outstanding
options,
warrant and
rights
|
|
|
Number of
securities
remaining
available for
future
issuance
under equity
compensation
plans
(excluding
securities
reflected in
the first
column)
|
|
Equity compensation plans approved by security holders
|
|
|
12,841,000
|
|
|
$
|
1.57
|
|
|
|
7,159,000
|
|
Equity compensation plans not approved by security holders
|
|
|
2,750,000
|
|
|
|
0.37
|
|
|
|
–
|
|
|
|
|
15,591,000
|
|
|
$
|
1.94
|
|
|
|
7,159,000
|
|
Vote Required and Recommendation of the Board of Directors
Each of the five director nominees must be
elected by a plurality of votes cast by holders of our common stock entitled to vote at the Meeting.
The Board unanimously recommends that you
vote “FOR” the nominees identified above
.
PROPOSAL 2
RATIFICATION OF SELECTION OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
Our Board has selected Tanner to serve as our
independent registered public accounting firm for the fiscal year ending December 31, 2017. Tanner has served as our independent
registered public accounting firm since February 23, 2017. Representatives of Tanner are expected to be at the Meeting telephonically,
will have an opportunity to make a statement if they so desire, and will be available to respond to appropriate questions.
The selection of our independent registered
public accounting firm is not required to be submitted for stockholder approval. Nonetheless, the Board is seeking ratification
of its selection of Tanner as a matter of further involving our stockholders in our corporate affairs. If the stockholders do not
ratify this selection, the Board will reconsider its selection of Tanner and will either continue to retain the firm or appoint
a new independent registered public accounting firm. Even if the selection is ratified, the Board may, in its sole discretion,
determine to appoint a different independent registered public accounting firm at any time during the year if it determines that
such a change would be in our and our stockholders’ best interests.
Vote Required
The affirmative vote of a majority of the shares
present in person or represented by proxy and entitled to vote at the Meeting, at which a quorum is present, is required to approve
this proposal. Proxies solicited by the Board will be voted for this proposal unless you specify otherwise in your proxy.
Recommendation of the Board of Directors
The Board of Directors unanimously recommends
that you vote “FOR” the ratification of Tanner as the Company’s independent registered public accounting firm.
CHANGE IN THE COMPANY’S INDEPENDENT
PUBLIC ACCOUNTING FIRM
On February 23, 2017, PKF, Certified Public
Accountants, a professional corporation (“
PKF
”) resigned as the independent registered public accounting
firm the Company.
The reports of PKF regarding the Company’s
financial statements for fiscal years ended December 31, 2014 and December 31, 2015 did not contain any adverse opinion or disclaimer
of opinion and were not qualified or modified as to uncertainty, audit scope or accounting principles. PKF did not report on the
financial statements for the fiscal year ended December 31, 2016. During the fiscal years ended December 31, 2014, December 31,
2015, and December 31, 2016 and during the period from December 31, 2016 through February 23, 2017, the date of resignation, there
were no disagreements with PKF on any matter of accounting principles or practices, financial statement disclosure or auditing
scope or procedures, which disagreements, if not resolved to the satisfaction of PKF would have caused it to make reference to
such disagreement in its reports. No reportable events (as described in paragraph (a)(1)(v) of Item 304 of Regulation S-K) occurred
during the fiscal years ended December 31, 2014, December 31, 2015 and/or December 31, 2016.
The above information regarding the change
in our independent registered public accounting firm was previously disclosed by us in a Current Report on Form 8-K filed with
the SEC on February 24, 2017 (the “
February Form 8-K
”). We provided PKF with a copy of the disclosures
in the February Form 8-K and requested that PKF furnish to us a letter addressed to the SEC stating whether or not it agrees with
the above statements made by us in response to Item 304(a) of Regulation S-K. A copy of the letter, dated Fevruary 24, 2017, is
filed as Exhibit 16.1 to the February Form 8-K.
On February 23, 2017, the Board approved the
engagement of Tanner as its independent registered public accounting firm. During the fiscal years ended December 31, 2015 and
December 31, 2016 and the subsequent interim period through February 23, 2017, the date of engagement of Tanner, the Company did
not consult with Tanner regarding either (i) the application of accounting principles to a specific transaction, either completed
or proposed, or the type of audit opinion that might be rendered on the Company’s financial statements, or (ii) any matter
that was either the subject of a disagreement (as defined in paragraph (a)(1)(iv) of Item 304 of Regulation S-K and the related
instructions thereto) or a reportable event (as described in paragraph (a)(1)(v) of Item 304 of Regulation S-K).
AUDIT FEES
The following table summarizes the fees, as
applicable, of Tanner, our independent auditor for the year ended December 31, 2016, billed to us for each of the last two fiscal
years for audit services and billed to us in each of the last two years for other services:
Fee Category
|
|
2016
|
|
|
2015
|
|
Audit Fees (1)
|
|
$
|
117,539
|
|
|
$
|
–
|
|
Audit Related Fees (2)
|
|
|
–
|
|
|
|
–
|
|
Tax Fees (3)
|
|
|
–
|
|
|
|
–
|
|
All Other Fees (4)
|
|
|
–
|
|
|
|
–
|
|
|
|
$
|
117,539
|
|
|
$
|
–
|
|
The following table summarizes the fees, as
applicable, of PKF, our independent auditors for the year ended December 31, 2015 and for a portion of the year ended December
31, 2016, billed to us for each of the last two fiscal years for audit services and billed to us in each of the last two years
for other services:
Fee Category
|
|
2016
|
|
|
2015
|
|
Audit Fees (1)
|
|
$
|
77,000
|
|
|
$
|
93,595
|
|
Audit Related Fees (2)
|
|
|
47,056
|
|
|
|
25,403
|
|
Tax Fees (3)
|
|
|
730
|
|
|
|
7,200
|
|
All Other Fees (4)
|
|
|
25,025
|
|
|
|
19,940
|
|
|
|
$
|
149,811
|
|
|
$
|
146,138
|
|
(1) Audit fees includes the audit of our annual
financial statements, review of financial statements included in our Form 10-Q quarterly reports and services that are normally
provided by the independent auditors in connection with engagements for those fiscal years. This category also includes advice
on audit and accounting matters that arose during, or as a result of, the audit or the review of interim financial statements.
(2) Audit-related fees consist of assurance
and related services by the independent auditors that are reasonably related to the performance of the audit or review of our financial
statements and are not reported above under Audit Fees. The services for the fees disclosed under this category include consultation
regarding our correspondence with the SEC and other accounting consulting.
(3) Tax fees consist of professional fees rendered
by our outside tax advisors (other than PKF or Tanner) for tax compliance and tax advice. The services for the fees disclosed
under this category include tax return preparation and technical advice.
(4) All other fees consist of fees for other
miscellaneous items.
Our Audit Committee has adopted a procedure
for pre-approval of all fees charged by our independent auditors. Under the procedure, the Audit Committee approves the engagement
letter with respect to audit and review services. Other fees are subject to pre-approval by the Audit Committee, or, in the period
between meetings, by a designated member of the Board of Directors or Audit Committee. Any such approval by the designated member
is disclosed to the entire Board of Directors at the next meeting. 100% of the audit fees paid to the auditors with respect to
2016 were pre-approved by the Audit Committee. The audit fees paid to the auditor with respect to 2015 were pre-approved by the
entire Board of Directors.
PROPOSAL 3
amendMENT
to the Company’s
Amended and Restated 2013 Equity Incentive Plan, as amended
On May 3, 2017, our Board approved an amendment
to the Company’s Amended and Restated 2013 Equity Incentive Plan, as amended (the “
Amended 2013 Plan
”),
subject to stockholder approval at the Meeting, in order to add 5,000,000 shares for possible future issuances under the Amended
2013 Plan. The amendment of the Amended 2013 Plan will be effective as of the date it is approved by the Company’s stockholders.
The Amended 2013 Plan was initially approved by the Board and the Company’s stockholders in July 2014 to promote the success
and enhance the value of the Company by linking the personal interests of the members of the Board, employees, and consultants
to those of the Company’s stockholders and by providing such individuals with an incentive for performance to generate returns
to the Company’s stockholders. The Amended 2013 Plan is further intended to provide the Company flexibility to motivate,
attract, and retain the services of members of the Board, employees, and consultants upon whose judgment, interest, and special
effort the successful conduct of the Company’s operation is largely dependent.
The principal features of the Amended 2013
Plan are summarized below, but the summary is qualified in its entirety by reference to the Amended 2013 Plan itself, as amended,
a copy of which is attached hereto as
Attachment A
.
DESCRIPTION OF AMENDED AND RESTATED 2013
EQUITY INCENTIVE PLAN
The Amended 2013 Plan is an “omnibus”
stock plan consisting of a variety of equity vehicles to provide flexibility in implementing equity awards, including incentive
stock options, non-qualified stock options, restricted stock grants, unrestricted stock grants and restricted stock units. Participants
in the Amended 2013 Plan may be granted any one of the equity awards or any combination thereof, as determined by the Board. See
“Federal Income Tax Information” for a discussion of the tax treatment of awards.
Purpose
The Board adopted the Amended 2013 Plan to
provide a means to retain the services of the group of persons eligible to receive awards, to secure and retain the services of
new members of this group and to provide incentives for such persons to exert maximum efforts for the success of the Company and
its affiliates. All of the employees, as well as non-employee directors and consultants of the Company and its affiliates are eligible
to participate in the Amended 2013 Plan, a total of approximately 50 individuals, including 3 non-employee directors, approximately
40 employees and approximately 5 consultants.
The Importance of the Proposed Increase
in Shares
We believe the ability to grant competitive
equity awards is a necessary and powerful recruiting and retention tool for us to obtain the quality personnel we need to move
our business forward. We are a small life science company heavily reliant on a small number of senior employees and consultants.
If we are unable to offer competitive equity packages to retain and hire senior employees and engage consultants, this could significantly
hamper our ability to advance our drug development program.
Administration
As permitted by the terms of the Amended 2013
Plan, the Board has delegated administration of the Amended 2013 Plan to the Compensation Committee of the Board. As used herein
with respect to the Amended 2013 Plan, the “Board of Directors” refers to any committee the Board appoints as well
as to the Board itself. Subject to the provisions of the Amended 2013 Plan, the Board has the power to construe and interpret the
Amended 2013 Plan and awards granted under it and to determine the persons to whom and the dates on which awards will be granted,
the number of shares of the Company’s common stock to be subject to each award, the time or times during the term of each
award within which all or a portion of such award may be exercised, the exercise price, the type of consideration and other terms
of the award. Subject to the limitations set forth below, the Board will also determine the exercise price of options granted under
the Amended 2013 Plan and, with the consent of any adversely affected option holder, may reduce the exercise price of any outstanding
option, cancel an outstanding option in exchange for a new option covering the same or a different number of shares of common stock
or another equity award or cash or other consideration, or any other action that is treated as a re-pricing under generally accepted
accounting principles. All decisions, determinations and interpretations by the Board regarding the Amended 2013 Plan shall be
final and binding on all participants or other persons claiming rights under the Amended 2013 Plan or any award.
The Board has the power to delegate administration
of the Amended 2013 Plan to a committee composed of not fewer than two (2) members of the Board. In the discretion of the Board,
a committee may consist solely of two or more outside directors in accordance with Section 162(m) of the Internal Revenue Code
of 1986, as amended (the “
Code
”), or solely of two or more non-employee directors in accordance with
Rule 16b-3 of the Exchange Act. Subject to certain limitations, the Board may also delegate to one or more officers of the Company
the authority to do one or both of the following (i) designate officers and employees of the Company to be recipients of awards
and (ii) determine the number of shares of common stock to be subject to such awards granted to such officers and employees of
the Company. Such officer would be able to grant only the number of shares of common stock subject to awards as specified by the
Board, and such officer would not be allowed to grant an award to him or herself.
Stock Subject to the Amended 2013 Plan
Subject to this Proposal 3, and following the
amendment to the Amended 2013 Plan, an aggregate of 25,000,000 shares of our common stock will be reserved for issuance under the
Amended 2013 Plan. Shares issued under the Amended 2013 Plan may be previously unissued shares or reacquired shares of our common
stock bought on the market or otherwise.
If awards granted under the Amended 2013 Plan
expire or otherwise terminate without being exercised, or if any shares of common stock issued to a participant pursuant to an
award are forfeited to or repurchased by the Company, such shares of common stock again become available for issuance under the
Amended 2013 Plan. If any shares subject to an award are not delivered to a participant because such shares are withheld for the
payment of taxes or the award is exercised through a “net exercise”, the number of shares that are not delivered to
the participant shall remain available for the grant of awards under the Amended 2013 Plan. If the exercise of any award is satisfied
by tendering shares of our common stock held by the participant, the number of shares tendered shall again become available for
the grant of awards under the Amended 2013 Plan. Notwithstanding the foregoing, and subject to the terms of the Amended 2013 Plan,
the aggregate maximum number of shares of our common stock that may be issued as incentive stock options will be 25,000,000 shares
of common stock.
Eligibility
Incentive stock options may be granted under
the Amended 2013 Plan only to employees (including officers) of the Company and its affiliates. Employees (including officers),
directors, and consultants of both the Company and its affiliates are eligible to receive all other types of awards under the Amended
2013 Plan.
No incentive stock option may be granted under
the Amended 2013 Plan to any person who, at the time of the grant, owns (or is deemed to own) stock possessing more than 10% of
the total combined voting power of the Company or any affiliate of the Company, unless the exercise price is at least 110% of the
fair market value of the stock subject to the option on the date of grant and the term of the option does not exceed five years
from the date of grant. In addition, the aggregate fair market value, determined at the time of grant, of the shares of our common
stock with respect to which incentive stock options are exercisable for the first time by a participant during any calendar year
(under the Amended 2013 Plan and all other such plans of the Company and its affiliates) may not exceed $100,000.
Subject to certain adjustments set forth in
the Amended 2013 Plan, no employee may be granted options under the Amended 2013 Plan covering more than 4,000,000 shares of our
common stock during any calendar year (the “
Section 162(m) Limitation
”).
Terms of Options
The following is a description of the permissible
terms of options under the Amended 2013 Plan. Individual option grants may be more restrictive as to any or all of the permissible
terms described below.
Exercise Price; Payment. The exercise
price of incentive stock options may not be less than 100% of the fair market value of the stock subject to the option on the
date of the grant and, in some cases (see “
Eligibility
” above), may not be less than 110% of such fair
market value. The exercise price of nonstatutory options shall be determined by the Board. If options are granted to
individuals with exercise prices below fair market value, deductions for compensation attributable to the exercise of such
options could be limited by Section 162(m) of the Code and certain adverse tax consequences would result under Section 409A
of the Code. See “Federal Income Tax Information.”
Acceptable consideration for the purchase of
common stock issued under the Amended 2013 Plan will be determined by the Board and may include cash, common stock previously owned
by the optionee, a deferred payment arrangement, the net exercise of the option, consideration received in a “cashless”
broker-assisted sale and other legal consideration approved by the Board.
Option Exercise. Options granted under the
Amended 2013 Plan may become exercisable in cumulative increments (“vest”) as determined by the Board. Such increments
may be based on continued service to the Company over a certain period of time, the occurrence of certain performance milestones,
or other criteria. Options granted under the Amended 2013 Plan may be subject to different vesting terms. The Board has the power
to accelerate the time during which an option may vest or be exercised. In addition, options granted under the Amended 2013 Plan
may permit exercise prior to vesting, but in such event the participant may be required to enter into an early exercise stock purchase
agreement that allows the Company to repurchase unvested shares, generally at their exercise price, should the participant’s
service terminate before vesting. To the extent provided by the terms of an option, a participant may satisfy any federal, state
or local tax withholding obligation relating to the exercise of such option by a cash payment upon exercise, by authorizing the
Company to withhold a portion of the stock otherwise issuable to the participant, or by such other method as may be set forth in
the option agreement.
Term. The maximum term of options under the
Amended 2013 Plan is 10 years, except that in certain cases (see “Eligibility”) the maximum term of certain incentive
stock options is five years. Options under the Amended 2013 Plan generally terminate three months after termination of the participant’s
service unless (i) such termination is due to the participant’s disability, in which case the option may, but need not, provide
that it may be exercised (to the extent the option was exercisable at the time of the termination of service) at any time within
12 months of such termination; (ii) the participant dies before the participant’s service has terminated, or within three
months after termination of such service, in which case the option may, but need not, provide that it may be exercised (to the
extent the option was exercisable at the time of the participant’s death) within 12 months of the participant’s death
by the person or persons to whom the rights to such option pass by will or by the laws of descent and distribution; or (iii) the
option by its terms specifically provides otherwise. If an optionee’s service with the Company, or any affiliate of the Company,
ceases with cause, the option will terminate at the time the optionee’s service ceases. In no event may an option be exercised
after its expiration date.
A participant’s option agreement may
provide that if the exercise of the option following the termination of the participant’s service would be prohibited because
the issuance of stock would violate the registration requirements under the Securities Act, then the option will terminate on the
earlier of (i) the expiration of the term of the option or (ii) three months after the termination of the participant’s service
during which the exercise of the option would not be in violation of such registration requirements.
Restrictions on Transfer. Incentive stock options
are not transferable except by will or by the laws of descent and distribution, provided that a participant may designate a beneficiary
who may exercise an option following the participant’s death. Nonstatutory stock options are transferable to the extent provided
in the option agreement.
Terms of Stock Bonuses and Restricted Stock Awards
Stock bonus awards and restricted stock awards
are granted through a stock bonus award agreement or restricted stock award agreement.
Payment. Subject to certain limitations, the
purchase price for restricted stock or stock bonus awards must be at least the par value of our Common Stock. The purchase price
for a stock purchase award may be payable in cash, or any other form of legal consideration approved by the Board. Stock bonus
awards may be granted in consideration for the recipient’s past services for the Company.
Vesting. Common stock under a restricted stock
or stock bonus award agreement may be subject to a share repurchase option or forfeiture right in our favor, each in accordance
with a vesting schedule. If a recipient’s service relationship with us terminates, we may reacquire or receive via forfeiture
all of the shares of our common stock issued to the recipient pursuant to a restricted stock or stock bonus award that have not
vested as of the date of termination. The Board has the power to accelerate the vesting of stock acquired under a restricted stock
or stock bonus award agreement.
Restrictions on Transfer. Rights under a stock
bonus or restricted stock bonus agreement may be transferred only as expressly authorized by the terms of the applicable stock
bonus or restricted stock purchase agreement.
Restricted Stock Unit Awards
Restricted stock unit awards are issued pursuant
to a stock unit award agreement.
Payment. Subject to certain limitations, the
consideration, if any, for restricted stock unit awards must be at least the par value of our common stock. The consideration for
a stock unit award may be payable in any form acceptable to the Board and permitted under applicable law.
Vesting and Settlement. The Board may impose
any restrictions or conditions upon the vesting of restricted stock unit awards, or that delay the delivery of the consideration
after the vesting of stock unit awards, that it deems appropriate. Restricted stock unit awards are settled in shares of the Company’s
common stock. Dividend equivalents may be credited in respect of shares covered by a restricted stock unit award, as determined
by the Board. At the discretion of the Board, such dividend equivalents may be converted into additional shares covered by the
restricted stock unit award.
Termination of Service. If a restricted stock
unit award recipient’s service relationship with the Company terminates, any unvested portion of the restricted stock unit
award is forfeited upon the recipient’s termination of service.
Adjustment Provisions
Transactions not involving receipt of consideration
by the Company, such as a merger, consolidation, reorganization, recapitalization, reincorporation, reclassification, stock dividend,
dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, or a change
in corporate structure may change the type(s), class(es) and number of shares of common stock subject to the Amended 2013 Plan
and outstanding awards. In that event, the Amended 2013 Plan will be appropriately adjusted as to the type(s), class(es) and the
maximum number of shares of common stock subject to the Amended 2013 Plan and the Section 162(m) Limitation, and outstanding awards
will be adjusted as to the type(s), class(es), number of shares and price per share of common stock subject to such awards.
Effect of Certain Corporate Transactions
In the event of certain corporate transactions,
all outstanding stock awards under the Amended 2013 Plan may be assumed, continued or substituted for by any surviving entity.
If the surviving entity elects not to assume, continue or substitute for such awards, such stock awards will be terminated if not
exercised prior to the effective date of the corporate transaction. A stock award may be subject to acceleration of vesting in
the event of a change in control as may be provided in the applicable stock award agreement or other written agreement between
the award recipient and the Company.
Duration, Amendment and Termination
The Board may suspend or terminate the Amended
2013 Plan without stockholder approval or ratification at any time or from time to time. Unless sooner terminated, the Amended
2013 Plan will terminate on June 3, 2024, which is the tenth anniversary of the date of its adoption by the Board.
The Board will have authority to amend or terminate
the Amended 2013 Plan. No amendment or termination of the Amended 2013 Plan shall adversely affect any rights under awards already
granted to a participant unless agreed to by the affected participant. To the extent necessary to comply with applicable provisions
of federal securities laws, state corporate and securities laws, the Code, the rules of any applicable stock exchange or national
market system, and the rules of any non-U.S. jurisdiction applicable to awards granted to residents therein, the Company will obtain
stockholder approval of any such amendment to the Amended 2013 Plan in such a manner and to such a degree as may be required.
Amended Plan Benefits
Future awards to the Company’s executive
officers and employees are discretionary. Therefore, at this time the benefits that may be received by the Company’s executive
officers and other employees if the Company’s stockholders approve the amendment to the Amended 2013 Plan cannot be determined.
Because the value of stock issuable to the Company’s non-employee directors under the Amended 2013 Plan will depend on the
fair market value of the Company’s common stock at future dates, it is not possible to determine exactly the benefits that
might be received by the Company’s non-employee directors under the Amended 2013 Plan.
The following table shows the aggregate
benefits received by our named executive officers as a group, our executive officers as a group, our non-employee directors as
a group, our non-executive officer employees as a group and our consultants as a group under the Amended 2013 Plan in fiscal year
2016:
|
|
Number of Options Granted
|
|
|
Average Per Share Exercise Price
|
|
|
|
(#)
|
|
|
($)
|
|
|
|
|
|
|
|
|
Named executive officers as a group
|
|
|
–
|
|
|
|
–
|
|
|
|
|
|
|
|
|
|
|
All current executive officers as a group
|
|
|
–
|
|
|
|
–
|
|
|
|
|
|
|
|
|
|
|
All non-employee directors as a group
|
|
|
750,000
|
|
|
$
|
0.37
|
|
|
|
|
|
|
|
|
|
|
All other employees as a group
|
|
|
2,170,000
|
|
|
$
|
0.36
|
|
|
|
|
|
|
|
|
|
|
All consultants as a group
|
|
|
300,000
|
|
|
$
|
0.37
|
|
Also see the information set forth in Proposal
1 above under the heading “Equity Compensation Plan Information”.
Federal Income Tax Information
Incentive Stock Options. Incentive stock options
under the Amended 2013 Plan are intended to be eligible for the federal income tax treatment accorded “incentive stock options”
under the Code.
There generally are no federal income tax consequences
to the participant or the Company by reason of the grant or exercise of an incentive stock option. However, the exercise of an
incentive stock option may give rise to or increase alternative minimum tax liability for the participant.
If a participant holds stock acquired through
exercise of an incentive stock option for more than two years from the date on which the option is granted and more than one year
from the date on which the shares are transferred to the participant upon exercise of the option, any gain or loss on a disposition
of such stock will be a long-term capital gain or loss if the participant held the stock for more than one year.
Generally, if the participant disposes of the
stock before the expiration of either of these holding periods (a “disqualifying disposition”), then at the time of
disposition the participant will realize taxable ordinary income equal to the lesser of (i) the excess of the stock’s fair
market value on the date of exercise over the exercise price, or (ii) the participant’s actual gain, if any, on the purchase
and sale. The participant’s additional gain or any loss upon the disqualifying disposition will be a capital gain or loss,
which will be long-term or short-term depending on whether the stock was held for more than one year.
To the extent the participant recognizes ordinary
income by reason of a disqualifying disposition, the Company will generally be entitled (subject to the requirement of reasonableness,
the provisions of Section 162(m) of the Code and the satisfaction of a tax reporting obligation) to a corresponding business expense
deduction in the tax year in which the disqualifying disposition occurs.
Nonstatutory Stock Options, Restricted Stock
Purchase Awards, Restricted Stock Units and Stock Bonuses. Nonstatutory stock options, restricted stock purchase awards, restricted
stock units and stock bonuses granted under the Amended 2013 Plan generally have the federal income tax consequences described
below.
There generally are no tax consequences to
the participant or the Company by reason of the grant of these awards. However, if the exercise price of a nonstatutory stock option
can, at any time, be less than the fair market value of the stock on the grant date, Section 409A of the Code imposes ordinary
income and employment tax liability on the participant as the option vests in an amount equal to the difference between the fair
market value of the stock on the vesting date and the exercise price. In addition, Section 409A imposes a penalty of 20% of such
amount and an interest charge. The Company would be responsible for withholding these tax amounts. Upon acquisition of the stock
under any of these awards, the participant normally will recognize taxable ordinary income equal to the excess, if any, of the
stock’s fair market value on the acquisition date over the purchase price. However, to the extent the stock is subject to
certain types of vesting restrictions, the taxable event will be delayed until the vesting restrictions lapse unless the participant
elects to be taxed on receipt of the stock. With respect to employees, the Company is generally required to withhold from regular
wages or supplemental wage payments an amount based on the ordinary income recognized. Subject to the requirement of reasonableness,
the provisions of Section 162(m) of the Code and the satisfaction of a tax reporting obligation, the Company will generally be
entitled to a business expense deduction equal to the taxable ordinary income realized by the participant.
Upon disposition of the stock, the participant
will recognize a capital gain or loss equal to the difference between the selling price and the sum of the amount paid for such
stock plus any amount recognized as ordinary income upon acquisition (or vesting) of the stock. Such gain or loss will be long-term
or short-term depending on whether the stock was held for more than one year. Slightly different rules may apply to participants
who acquire stock subject to certain repurchase options or who are subject to Section 16(b) of the Exchange Act.
Potential Limitation on Company Deductions.
Section 162(m) of the Code denies a deduction to any publicly held corporation for compensation paid to certain “covered
employees” in a taxable year to the extent that compensation to such covered employee exceeds $1 million. It is possible
that compensation attributable to awards, when combined with all other types of compensation received by a covered employee from
the Company, may cause this limitation to be exceeded in any particular year.
Certain kinds of compensation, including qualified
“performance-based compensation,” are disregarded for purposes of the deduction limitation. In accordance with Treasury
Regulations issued under Section 162(m) (the “
Treasury Regulations
”), compensation attributable to stock
options will qualify as performance-based compensation if the award is granted by a compensation committee comprised solely of
“outside directors” and either (i) the plan contains a per-employee limitation on the number of shares for which such
awards may be granted during a specified period, the per-employee limitation is approved by the stockholders, and the exercise
price of the award is no less than the fair market value of the stock on the date of grant, or (ii) the award is granted (or exercisable)
only upon the achievement (as certified in writing by the compensation committee) of an objective performance goal established
in writing by the compensation committee while the outcome is substantially uncertain, and the award is approved by stockholders.
Restricted stock, stock bonus awards and restricted
stock units will qualify as performance-based compensation under the Treasury Regulations only if (i) the award is granted by a
compensation committee comprised solely of “outside directors,” (ii) the award is granted (or exercisable) only upon
the achievement of an objective performance goal established in writing by the compensation committee while the outcome is substantially
uncertain, (iii) the compensation committee certifies in writing prior to the granting (or exercisability) of the award that the
performance goal has been satisfied and (iv) prior to the granting (or exercisability) of the award, stockholders have approved
the material terms of the award (including the class of employees eligible for such award, the business criteria on which the performance
goal is based, and the maximum amount (or formula used to calculate the amount) payable upon attainment of the performance goal).
The Amended 2013 Plan permits the Company to
grant awards designated as “Performance-Based Awards” that are intended to qualify as performance-based compensation
under the Treasury Regulations.
Vote Required
Approval of this proposal requires the affirmative
vote of the holders of a majority of the shares of the Company’s common stock present in person or by proxy and entitled
to vote at the Meeting. Abstentions will be counted toward the tabulation of votes cast on proposals presented to the stockholders
and will have the same effect as negative votes. Broker non-votes are counted towards a quorum, but are not counted for any purpose
in determining whether this matter has been approved.
Recommendation of the Board of Directors
The Board of Directors unanimously recommends
that you vote “FOR” the adoption of the amendment to the Amended and Restated 2013 Equity Incentive Plan, as amended.
PROPOSAL 4
REVERSE
STOCK SPLIT
On May 3, 2017, the Company’s
Board of Directors unanimously approved, and declared the advisability of, subject to stockholder approval, an amendment to our
Certificate of Incorporation, as amended, to effect a reverse stock split of our outstanding common stock by combining outstanding
shares of common stock into a lesser number of outstanding shares of common stock by a ratio of not less than 1-for-5 and not more
than 1-for-50 at any time prior to June 30, 2018, with the exact ratio to be set within this range by our Board of Directors at
its sole discretion without further stockholder approval. The Board of Directors may alternatively elect to abandon such proposed
amendment and not effect the reverse stock split authorized by stockholders, in its sole discretion. Upon the effectiveness of
the amendment to our Certificate of Incorporation, as amended, effecting the reverse stock split, the outstanding shares of our
common stock will be reclassified and combined into a lesser number of shares such that one share of our common stock will be issued
for a specified number of shares.
If this Proposal 4 is approved
by our stockholders as proposed, our Board of Directors would have the sole discretion to effect the amendment and reverse stock
split at any time prior to June 30, 2018, and to fix the specific ratio for the reverse stock split, provided that the ratio would
be not less than 1-for-5 and not more than 1-for-50. The need for the broad range is due to the volatility of the stock price
which ranged from a high of $1.00 to a low of $0.11 during the fiscal year ended December 31, 2016. We believe that enabling our
Board of Directors to fix the specific ratio of the reverse stock split within the stated range will provide us with the flexibility
to implement the split in a manner designed to maximize the anticipated benefits for our stockholders. The determination of the
ratio of the reverse stock split will be based on a number of factors, described further below and under the heading "Criteria
to be Used for Decision to Apply the Reverse Stock Split." As set forth below, one of the purposes of effectuating the reverse
stock split is to potentially permit us to list our Common Stock on the NASDAQ Capital Market, or another national exchange. The
initial requirements for such listing includes a closing bid price of at least $4.00 per share. In light of the volatility of
our stock price (as discussed above), changing conditions in the capital markets, the extended time frame in which the reverse
stock split decision may be made and other factors relevant to the timing and extent of the reverse stock split, the Board believes
that stockholder approval of a range of reverse split ratios from 1-for-5 to 1-for-50 is in the best interests of the Company
and its stockholders.
The reverse stock split, if approved by our
stockholders, would become effective upon the filing of an amendment to our Certificate of Incorporation with the Secretary of
State of the State of Delaware, or at the later time set forth in the amendment. The exact timing of the amendment will be determined
by our Board of Directors based on its evaluation as to when such action will be the most advantageous to us and our stockholders,
but will not occur after June 30, 2018. In addition, our Board of Directors reserves the right, notwithstanding stockholder approval
and without further action by our stockholders, to abandon the amendment and the reverse stock split if, at any time prior to the
effectiveness of the filing of the amendment with the Secretary of State, our Board of Directors, in its sole discretion, determines
that it is no longer in our best interest and the best interests of our stockholders to proceed.
The primary purpose for effecting the reverse
stock split is to increase the per share trading price of our common stock so as to:
|
·
|
potentially permit us to list the Company's common stock on the NASDAQ Capital Market, or another national
stock exchange, in the future;
|
|
·
|
make our common stock a more attractive
investment to institutional investors;
|
|
·
|
broaden the pool of investors that may
be interested in investing in our company by attracting new investors who would prefer not to invest in shares that trade at lower
share prices; and
|
|
·
|
better enable us to raise funds to finance
planned operations.
|
Our Board of Directors further
believes that a listing of the Company’s common stock on either the NASDAQ Capital Market or another national stock exchange
could attract a broader, more diverse stockholder base. The reverse stock split proposal is intended to increase our per share
bid price and satisfy one of listing requirements for a national exchange, including the NASDAQ Capital Market. Reducing the number
of outstanding shares of our common stock should, absent other factors, increase the per share market price of the common stock,
although we cannot provide any assurance that we will be able to meet or maintain a bid price over the minimum bid price requirement
for listing on The NASDAQ Capital Market or any other exchange (and/or the other NASDAQ Capital Market listing requirements).
The Company’s Board of Directors also believes that an increased stock price may encourage investor interest and improve
the marketability of our common stock to a broader range of investors, and thus improve liquidity and lower average transaction
costs. Because of the trading volatility often associated with low-priced stocks, many brokerage firms and institutional investors
have internal policies and practices that either prohibit them from investing in low-priced stocks or tend to discourage individual
brokers from recommending low-priced stocks to their customers. Our Board of Directors believes that the anticipated higher market
price resulting from a reverse stock split would enable institutional investors and brokerage firms with policies and practices
such as those described above to invest in our common stock.
At present, other than granting equity incentives
for our employees, consultants and non-employee directors as described in Proposal 3 and the issuance of shares of the Company’s
common stock pursuant to certain convertible promissory notes and/or warrants issued by the Company to certain investors, as discussed
further in the Notes to the Company’s condensed consolidated financial statements which accompany the Annual Report, our
Board has no immediate plans, arrangements or understandings to issue the additional shares of common stock. However, we desire
to have the shares available to provide additional flexibility to use our common stock for business and financial purposes in the
future as well to have sufficient shares available to provide appropriate equity incentives for our employees.
In evaluating the reverse stock split, our
Board also took into consideration negative factors associated with reverse stock splits. These factors include the negative perception
of reverse stock splits held by many investors, analysts and other stock market participants, as well as the fact that the stock
price of some companies that have effected reverse stock splits has subsequently declined back to pre-reverse stock split levels.
Our Board, however, determined that these potential negative factors were significantly outweighed by the potential benefits, and
believes that by increasing the per share market price of our common stock as a result of the reverse stock split may encourage
greater interest in our common stock and enhance the acceptability and marketability of our common stock to the financial community
and investing public as well as promote greater liquidity for our stockholders.
The form of the proposed amendment
to our Certificate of Incorporation to effect the reverse stock split is attached hereto as
Attachment B
. Any amendment
to our Certificate of Incorporation to effect the reverse stock split will include the reverse stock split ratio fixed by our
Board of Directors, within the range approved by our stockholders.
Criteria to be Used
for Decision to Apply the Reverse Stock Split
If our stockholders approve the
reverse stock split, our Board will be authorized to proceed with the reverse split. In determining whether to proceed with the
reverse split and setting the exact amount of split, if any, our Board will consider a number of factors, including existing and
expected marketability and liquidity of our Common Stock, prevailing market conditions, the listing requirements for the applicable
stock exchange, the recommendations and requirements of any investment bankers involved in any potential listing on a national
exchange and the likely effect on the market price of the common stock. Notwithstanding approval of the reverse stock split by
the stockholders, the Board of Directors may, in its sole discretion, abandon all of the proposed amendment and determine prior
to the effectiveness of any filing with the Delaware Secretary of State not to effect the reverse stock split. If the Board fails
to implement the reverse stock split before June 30, 2018, further stockholder approval would be required prior to implementing
any reverse stock split.
Effect of the Reverse Stock Split
The reverse stock split will
be effected simultaneously for all outstanding shares of our common stock. The reverse stock split will affect all of our stockholders
uniformly and will not affect any stockholder's percentage ownership interest in our company, except to the extent that the reverse
stock split results in any of our stockholders owning a fractional share (as discussed further below). The reverse stock split
will not change the terms of our common stock. After the reverse stock split, the shares of common stock will have the same voting
rights and rights to dividends and distributions and will be identical in all other respects to the common stock now authorized,
which is not entitled to preemptive or subscription rights, and is not subject to conversion, redemption or sinking fund provisions.
The post-reverse stock split common stock will remain fully paid and non-assessable. The reverse stock split is not intended as,
and will not have the effect of, a "going private transaction" covered by Rule 13e-3 under the Securities Exchange
Act of 1934. Following the reverse stock split, we will continue to be subject to the periodic reporting requirements of the Securities
Exchange Act of 1934. After the reverse stock split, the common stock would continue to be reported on the OTC: QB under the symbol
“CVSI”.
As of the effective time of the reverse stock
split, we will adjust and proportionately decrease the number of shares of our common stock reserved for issuance upon exercise
of, and adjust and proportionately increase the exercise price of, all options and warrants and other rights to acquire our common
stock. In addition, as of the effective time of the reverse stock split, we will adjust and proportionately decrease the total
number of shares of our common stock that may be the subject of the future grants under our stock plans.
The reverse stock split will not change the
number of authorized shares of our preferred stock. As of the date of this Proxy Statement there is no preferred stock issued and
outstanding.
Assuming reverse stock split
ratios of 1-for-5, 1-for-15 1-for-25, 1-for-35 and 1-for-50, which reflect the low end, three middle points and high end of the
range that our stockholders are being asked to approve, the following table sets forth (i) the number of shares of our common
stock that would be issued and outstanding, (ii) the number of shares of our common stock that would be reserved for issuance
pursuant to the Amended 2013 Plan and (iii) the number of shares of common stock reserved for outstanding warrants, options, and
restricted stock units outside the Amended 2013 Plan, each giving effect to the reverse stock split and based on securities outstanding
as of May 15, 2017. There are currently an aggregate of 20,000,000 shares of common stock reserved for issuance pursuant to the
Amended 2013 Plan.
|
|
|
|
Shares
of Common Stock before Reverse
|
|
|
|
Post
Reverse Stock Split Ratio of
|
|
|
|
Post
Reverse Stock Split Ratio of
|
|
|
|
Post
Reverse Stock Split Ratio of
|
|
|
|
Post
Reverse Stock Split Ratio of
|
|
|
|
Post
Reverse Stock Split Ratio of
|
|
|
|
|
|
Stock
Split
|
|
|
|
1
to 5
|
|
|
|
1
to 15
|
|
|
|
1
to 25
|
|
|
|
1
to 35
|
|
|
|
1
to 50
|
|
|
Shares of Common Stock Issued and Outstanding
|
|
|
89,451,086
|
|
|
|
17,890,217
|
|
|
|
5,963,406
|
|
|
|
3,578,043
|
|
|
|
2,555,745
|
|
|
|
1,789,022
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares of Common Stock Reserved under the Amended 2013 Plan
|
|
|
17,473,000
|
|
|
|
3,494,600
|
|
|
|
1,164,867
|
|
|
|
698,920
|
|
|
|
499,229
|
|
|
|
349,460
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares of Common Stock Reserved for Options, Warrants and Restricted
Stock Units outside the Amended 2013 Plan
|
|
|
25,000,000
|
|
|
|
5,000,000
|
|
|
|
1,666,667
|
|
|
|
1,000,000
|
|
|
|
714,286
|
|
|
|
500,000
|
|
If this Proposal 4 is approved
and our Board elects to effect the reverse stock split, the number of outstanding shares of common stock will be reduced in proportion
to the ratio of the split chosen by our Board of Directors. Accordingly, if a reverse stock split is effected, the number of authorized
shares of common stock available for issuance will be proportionally increased relative to the number of outstanding shares.
Additionally, if this Proposal
4 is approved and our Board elects to effect the reverse stock split, we would communicate to the public, prior to the effective
date of the stock split, additional details regarding the reverse split, including the specific ratio selected by our Board of
Directors. If the Board does not implement the reverse stock split by June 30, 2018, the authority granted in this proposal to
implement the reverse stock split will terminate.
The increase in the number of shares of authorized
but unissued and unreserved common stock will have an ‘anti-takeover effect’ by permitting the issuance of shares to
purchasers who might oppose a hostile takeover bid or oppose any efforts to amend or repeal certain provisions of the Certificate
of Incorporation or Bylaws. The increased number of available authorized but unissued shares as a result of the reverse stock split
would give the Company’s management more flexibility to resist or impede a third-party takeover bid that provides an above-market
premium that is favored by a majority of the independent stockholders. Any such anti-takeover effect of a reverse stock split would
be in addition to existing anti-takeover provisions of the Certificate of Incorporation, as amended, and Bylaws, as amended.
Our directors and executive officers have no
substantial interests, directly or indirectly, in the matters set forth in this proposed amendment, except to the extent of their
ownership in shares of our common stock and securities convertible or exercisable for common stock.
Certain Risks and Potential
Disadvantages Associated with the Reverse Stock Split
The effect of the reverse stock split upon
the market prices for our common stock cannot be accurately predicted, and the history of similar stock split combinations for
companies in like circumstances is varied. If the reverse stock split is implemented, the post-split market price of our common
stock may be less than the pre-split price multiplied by the reverse stock split ratio.
In addition, a reduction in number of shares
outstanding may impair the liquidity for our common stock, which may reduce the value of our common stock. Also, some stockholders
may consequently own less than one hundred shares of our common stock. A purchase or sale of less than one hundred shares may result
in incrementally higher trading costs through certain brokers, particularly "full service" brokers. Therefore, those
stockholders who own less than one hundred shares following the reverse stock split may be required to pay modestly higher transaction
costs should they then determine to sell their shares.
In addition, although we believe the reverse
stock split may enhance the desirability of our common stock to certain potential investors, we cannot assure stockholders that,
if implemented, our common stock will be more attractive to institutional and other long term investors or that the liquidity of
our common stock will increase since there would be a reduced number of shares outstanding after the reverse stock split.
Procedure for Effecting
the Reverse Stock Split and Exchange of Stock Certificates
If our stockholders approve the
proposal to effect the reverse stock split, and if our Board still believes that a reverse stock split is in the best interests
of us and our stockholders, our Board will determine the ratio of the reverse stock split to be implemented and we will file the
Certificate of Amendment to our Certificate of Incorporation with the Secretary of State of the State of Delaware. As soon as
practicable after the effective date of the reverse stock split, stockholders will be notified that the reverse stock split has
been effected.
Beneficial Owners of Common Stock.
Upon
the implementation of the reverse stock split, we intend to treat shares held by stockholders in "street name" (i.e., through
a bank, broker, custodian or other nominee), in the same manner as registered stockholders whose shares are registered in their
names. Banks, brokers, custodians or other nominees will be instructed to effect the reverse stock split for their beneficial holders
holding our common stock in street name. However, these banks, brokers, custodians or other nominees may have different procedures
than registered stockholders for processing the reverse stock split and making payment for fractional shares. If a stockholder
holds shares of our common stock with a bank, broker, custodian or other nominee and has any questions in this regard, stockholders
are encouraged to contact their bank, broker, custodian or other nominee.
Registered
Holders of Common Stock.
Certain of our registered holders of common stock hold some or all of
their shares electronically in book-entry form with our transfer agent,
Interwest Transfer Co., Inc
.
These stockholders do not hold physical stock certificates evidencing their ownership of our common stock. However, they are provided
with a statement reflecting the number of shares of our common stock registered in their accounts. If a stockholder holds registered
shares in book-entry form with our transfer agent, no action needs to be taken to receive post-reverse stock split shares or payment
in lieu of fractional shares, if applicable. If a stockholder is entitled to post-reverse stock split shares, a transaction statement
will automatically be sent to the stockholder's address of record indicating the number of shares of our common stock held following
the reverse stock split.
Holders of Certificated
Shares of Common Stock.
As soon as practicable after filing the Certificate of Amendment to our
Certificate of Incorporation effecting a reverse stock split with the Secretary of State of Delaware, we will notify our stockholders
that the reverse stock split has been implemented and stockholders will receive instructions for the exchange of their common
stock certificates for new certificates representing the appropriate number of shares of common stock after the reverse stock
split. However, if permitted, the Company may elect to effect the exchange in the ordinary course of trading as certificates are
returned for transfer. In either event, each current certificate representing shares of common stock will until so exchanged be
deemed for all corporate purposes after the filing date of the Certificate of Amendment to evidence ownership of our common stock
in the proportionately reduced number.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATES AND SHOULD NOT SUBMIT ANY CERTIFICATES
UNTIL REQUESTED TO DO SO
. You should submit them only after you receive instructions from us.
Fractional Shares
Our stockholders will not receive fractional post-reverse stock split shares in connection with the reverse
stock split. Instead, any fractional shares that would otherwise be issuable as a result of the reverse stock split will be rounded
up to the nearest whole share. No stockholders will receive cash in lieu of fractional shares.
No Appraisal Rights
No action is proposed herein for which the
laws of the State of Delaware, or our Certificate of Incorporation, as amended, or Bylaws, as amended, provide a right to our stockholders
to dissent and obtain appraisal of, or payment for, such stockholders' capital stock.
Accounting Consequences
The par value of our Common Stock will remain
unchanged at $0.0001 per share after the reverse stock split. As a result, on the effective date of the reverse split, the stated
capital on the Company’s balance sheet attributable to our Common Stock will be reduced proportionately from its present
amount, and the additional paid in capital account shall be credited with the amount by which the stated capital is reduced. The
per share Common Stock net income or loss and net book value will be increased because there will be fewer shares of Common Stock
outstanding. The Company does not anticipate that any other accounting consequences would arise as a result of the reverse stock
split.
Federal Income Tax Consequences
The following discussion is a summary of certain
U.S. federal income tax consequences of a reverse stock split to us and to stockholders that hold shares of our common stock as
capital assets for U.S. federal income tax purposes. This discussion is based upon current U.S. tax law, which is subject to change,
possibly with retroactive effect, and differing interpretations. Any such change may cause the U.S. federal income tax consequences
of a reverse stock split to vary substantially from the consequences summarized below.
This summary does not address
all aspects of U.S. federal income taxation that may be relevant to stockholders in light of their particular circumstances or
to stockholders who may be subject to special tax treatment under the Code, including, without limitation, dealers in securities,
commodities or foreign currency, persons who are treated as non-U.S. persons for U.S. federal income tax purposes, certain former
citizens or long-term residents of the United States, insurance companies, tax-exempt organizations, banks, financial institutions,
small business investment companies, regulated investment companies, real estate investment trusts, retirement plans, persons whose
functional currency is not the U.S. dollar, traders that mark-to-market their securities, persons subject to the alternative minimum
tax or Medicare contribution tax on net investment income, persons who do not hold their shares of our common stock as capital
assets within the meaning of Section 1221 of the Code, persons who hold their shares of our common stock as part of a hedge, straddle,
conversion or other risk reduction transaction, persons who hold their shares of our common stock as "qualified small business
stock" under Section 1045 and/or 1202 of the Code, or who acquired their shares of our common stock pursuant to the exercise
of compensatory stock options, the vesting of previously restricted shares of stock or otherwise as compensation.
The state and local tax consequences
of a reverse split may vary as to each stockholder, depending on the jurisdiction in which such stockholder resides, and any state
or local tax considerations are beyond the scope of this discussion. This discussion should not be considered as tax or investment
advice, and the tax consequences of a reverse stock split may not be the same for all stockholders. Stockholders should consult
their own tax advisors to understand their individual federal, state, local and foreign tax consequences.
Tax Consequences to the
Company.
We believe that a reverse stock split will constitute a reorganization under Section 368(a)(1)(E) of the
Code. Accordingly, we should not recognize taxable income, gain or loss in connection with a reverse stock split.
Tax Consequences to Stockholders.
Stockholders should not recognize any gain or loss for U.S. federal income tax purposes as a result of a reverse stock
split, except stockholders whose fractional shares resulting from the reverse stock split are rounded up to the nearest whole
share may recognize gain for United States federal income tax purposes equal to the value of the additional fractional share.
A stockholder’s tax basis in the shares received as a result of the reverse split will be equal, in the aggregate, to his
or her basis in the shares exchanged, increased by the income or gain attributable to the rounding up of fractional shares, as
described herein. New shares attributable to the rounding up of fractional shares to the nearest whole number of shares will be
treated for tax purposes as if the fractional shares constitute a disproportionate dividend distribution. Such stockholders generally
should recognize ordinary income to the extent of earnings and profits of the Company allocated to the portion of each whole share
attributable to the rounding up process, and the remainder of the gain, if any, shall be treated as received from the exchange
of property. The stockholder’s holding period for the shares will include the period during which he or she held the pre-split
shares surrendered in the reverse split. The portion of the shares received by a stockholder that are attributable to rounding
up for fractional shares will have a holding period commencing on the effective date of the reverse split.
Individual tax circumstances can
vary, and stockholders should consult their own tax advisors regarding the tax effects to them, based on their particular circumstances,
in particular stockholders whose fractional shares resulting from the reverse stock split are rounded up to the nearest whole share
and with respect to allocating tax basis and holding period among their post-reverse stock split shares.
Certain Regulatory Matters
The reverse stock split will require processing
by the FINRA pursuant to Rule 10b-17 promulgated under the Securities Exchange Act in order for the reverse stock split to be recognized
in the market for trading purposes. We expect to, but cannot assure that we will, receive FINRA’s clearance prior to the
effective date of the reverse stock split. If so, our common stock will be quoted at its post-reverse stock split price on the
effective date
of FINRA’s approval.
Vote Required
Approval of this proposal requires the affirmative
vote of holders of a majority of the outstanding shares of our common stock. Abstentions will be counted toward the tabulation
of votes cast on proposals presented to the stockholders and will have the same effect as negative votes. Broker non-votes are
counted towards a quorum, but are not counted for any purpose in determining whether this matter has been approved.
Recommendation of the Board of Directors
The Board of Directors unanimously
recommends that you vote “FOR” the approval of an amendment to the Company’s Certificate of Incorporation, as
amended, to effect, at the discretion of the Company’s Board of Directors, a reverse stock split of all outstanding shares
of the Company’s common stock, par value $0.0001 per share, at a ratio of not less than 1-for-5 and not greater than 1-for-50,
such ratio to be determined by the Company’s Board of Directors at any time before June 30, 2018, without further approval
or authorization of our stockholders.
INTEREST OF CERTAIN PERSONS IN MATTERS TO
BE ACTED UPON
None of our directors,
nominees for director, nominees for director or officers, anyone who has served as a director or officer at any time since the
beginning of the last fiscal year, nor any associate or affiliate of the foregoing, have any substantial interest, direct or indirect,
other than elections to office and except to the extent of their ownership of shares of our common stock or any other of our securities,
in any matter to be acted upon as described in this proxy statement.
STOCKHOLDERS’ PROPOSALS
Stockholders may submit
nominations for directors or proposals on matters appropriate for stockholder action at our subsequent annual meetings consistent
with Rule 14a-8 promulgated under the Exchange Act. For such proposals or nominations to be considered timely, they must be received
in writing by our secretary no later than 120 days before the date on which the Company first sent its proxy materials for the
prior year’s annual meeting of stockholders. For such proposals or nominations to be considered in the proxy statement and
proxy relating to the 2018 annual meeting of stockholders they must have been received by us no later than __________. Such proposals
should be directed to CV Sciences, Inc., 2688 South Rainbow Boulevard, Suite B, Las Vegas, Nevada 89146, Attn: Secretary. Any proposal
may be included in next year’s proxy materials only if such proposal complies with the rules and regulations promulgated
by the SEC. Nothing in this section shall be deemed to require us to include in our proxy statement or our proxy relating to any
Meeting any stockholder proposal or nomination that does not meet all of the requirements for inclusion established by the SEC.
OTHER BUSINESS
The Board knows of no matter
other than those described herein that will be presented for consideration at the Meeting. However, should any other matters properly
come before the Meeting or any adjournments thereof, it is the intention of the person(s) named in the accompanying proxy to vote
in accordance with their best judgment in the interest of the Company.
MISCELLANEOUS
We will bear all costs
incurred in the solicitation of proxies. In addition to solicitation by mail, our officers and employees may solicit proxies by
telephone, the Internet or personally, without additional compensation. We may also make arrangements with brokerage houses and
other custodians, nominees and fiduciaries for the forwarding of solicitation materials to the beneficial owners of shares of our
common stock held of record by such persons, and we may reimburse such brokerage houses and other custodians, nominees and fiduciaries
for their out-of-pocket expenses incurred in connection therewith. We have not engaged a proxy solicitor.
The SEC has adopted rules
that permit companies and intermediaries such as brokers to satisfy delivery requirements for proxy statements with respect to
two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This
process, which is commonly referred to as “householding,” potentially provides extra convenience for stockholders and
cost savings for companies. The Company and some brokers household proxy materials, delivering a single proxy statement and/or
Notice of Internet Availability of Proxy Materials to multiple stockholders sharing an address unless contrary instructions have
been received from the affected stockholders. Once you have received notice from your broker or the Company that they or the Company
will be householding materials to your address, householding will continue until you are notified otherwise or until you revoke
your consent. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate Notice
of Internet Availability of Proxy Materials, please notify your broker if your shares are held in a brokerage account or the Company
if you hold registered shares. We will also deliver a separate copy of this proxy statement to any stockholder upon written request.
Similarly, stockholders who have previously received multiple copies of disclosure documents may write to the address or call the
phone number listed below to request delivery of a single copy of these materials in the future. You can notify the Company by
sending a written request to Joseph Dowling, Secretary of the Company, 2688 South Rainbow Boulevard, Suite B, Las Vegas, Nevada
89146, by registered, certified or express mail or by calling the Company at (866) 290-2157.
AVAILABILITY OF ADDITIONAL INFORMATION
We file annual, quarterly
and current reports, proxy statements, and other information with the SEC. You may read and copy any materials we file with the
SEC at the SEC’s Public Reference Room at 100 F Street N.E., Washington, D.C. 20549-2521. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-732-0330. The SEC maintains a website at http://www.sec.gov
that contains reports, proxy and information statements, and other information regarding issuers that file electronically with
the SEC.
Las Vegas, Nevada
May __, 2017
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By Order of the Board of Directors
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|
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/s/ Joseph Dowling
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Joseph Dowling, Secretary
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Attachment A
CV SCIENCES, INC.
AMENDED AND RESTATED 2013 EQUITY INCENTIVE
PLAN, AS AMENDED
CV
SCIENCES, INC.
AMENDED AND RESTATED 2013 EQUITY INCENTIVE
PLAN, AS AMENDED
Amended and Restated Plan Adopted by the Board: June 3, 2014
Amended and Restated Plan Approved by the Stockholders: July 23, 2014
Amendments
to Amended and Restated Plan Adopted by the Board: September 4, 2015, August 29, 2016 and May 3, 2017
Amendments
to Amended and Restated Plan Approved by the Stockholders: December 21, 2015, October 24, 2016 and __________, 2017
Termination
Date: June 3, 2024
1.
General
(a)
Purposes
.
The purposes of the Plan are as follows:
(i) To provide additional
incentive for selected Employees, Directors and Consultants to further the growth, development and financial success of the Company
by providing a means by which such persons can personally benefit through the ownership of capital stock of the Company; and
(ii) To enable the Company
to secure and retain key Employees, Directors and Consultants considered important to the long-term success of the Company by offering
such persons an opportunity to own capital stock of the Company.
(b)
Eligible Stock
Award Recipients
.
The persons eligible to receive Stock Awards under the Plan are the Employees, Directors and Consultants
of the Company and its Affiliates.
(c)
Available Stock
Awards
.
The following Stock Awards are available under the Plan: (i) Incentive Stock Options; (ii) Nonstatutory Stock
Options; (iii) Restricted Stock awards, (iv) Restricted Stock Units; (v) Stock Bonus awards; and (vi) Performance-Based Awards.
2.
Definitions
(a)
“
Administrator
”
means the entity that conducts the general administration of the Plan as provided herein. The term “Administrator”
shall refer to the Board unless the Board has delegated administration to a Committee as provided in Article 3.
(b)
“
Affiliate
”
means:
(i) with respect to Incentive
Stock Options, any “parent corporation” or “subsidiary corporation” of the Company, whether now existing
or hereafter created or acquired, as those terms are defined in Sections 424(e) and 424(f) of the Code, respectively; and
(ii) with respect to Stock
Awards other than Incentive Stock Options, any entity described in paragraph (a) of this Section 2(b), plus any other corporation,
limited liability company, partnership or joint venture, whether now existing or hereafter created or acquired, with respect to
which the Company beneficially owns more than fifty percent (50%) of: (1) the total combined voting power of all outstanding voting
securities or (2) the capital or profits interests of a limited liability company, partnership or joint venture.
(c) “Award Shares
”
means the shares of Common Stock of the Company issued or issuable pursuant to a Stock Award, including Option Shares issued or
issuable pursuant to an Option.
(d)
“
Board
”
means the Board of Directors of the Company.
(e)
“
Change
in Control
” shall mean:
(i) The direct or
indirect sale or transfer, in a single transaction or a series of related transactions, by the stockholders of the Company of voting
securities, in which the holders of the outstanding voting securities of the Company immediately prior to such transaction or series
of transactions hold, as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing
less than fifty percent (50%) of the total combined voting power all outstanding voting securities of the Company or of the acquiring
entity immediately after such transaction or series of related transactions;
(ii) A merger or consolidation
in which the Company is not the surviving entity, except for a transaction in which the holders of the outstanding voting securities
of the Company immediately prior to such merger or consolidation hold as a result of holding Company securities prior to such transaction,
in the aggregate, securities possessing more than fifty percent (50%) of the total combined voting power of all outstanding voting
securities of the surviving entity (or the parent of the surviving entity) immediately after such merger or consolidation;
(iii) A reverse merger in
which the Company is the surviving entity but in which the holders of the outstanding voting securities of the Company immediately
prior to such merger hold as a result of holding Company securities prior to such transaction, in the aggregate, securities possessing
less than fifty percent (50%) of the total combined voting power of all outstanding voting securities of the Company or of the
acquiring entity immediately after such merger;
(iv) The sale, transfer or
other disposition (in one transaction or a series of related transactions) of all or substantially all of the assets of the Company,
except for a transaction in which the holders of the outstanding voting securities of the Company immediately prior to such transaction(s)
receive as a distribution with respect to securities of the Company, in the aggregate, securities possessing more than fifty percent
(50%) of the total combined voting power of all outstanding voting securities of the acquiring entity immediately after such transaction(s);
or
(v) Any time individuals
who, on the date this Plan is adopted by the Board, are members of the Board (the “Incumbent Board”) cease for any
reason to constitute at least a majority of the members of the Board;
provided, however
, that if the appointment or election
(or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent
Board then still in office, such new member shall, for purposes of this Plan, be considered as a member of the Incumbent Board.
(f)
“
Code
”
means the Internal Revenue Code of 1986, as amended.
(g)
“
Committee
”
means a committee appointed by the Board in accordance with Section 3(c).
(h)
“
Common
Stock
” means the shares of common stock of the Company.
(i)
“
Company
”
means CannaVEST Corp., a Delaware corporation.
(j)
“
Consultant
”
means any consultant or adviser if:
(a) The consultant or adviser
renders bona fide services to the Company or any Affiliate;
(b) The services rendered
by the consultant or adviser are not in connection with the offer or sale of securities in a capital-raising transaction and do
not directly or indirectly promote or maintain a market for the Company’s securities; and
(i) The consultant or adviser
is a natural person who has contracted directly with the Company or any Affiliate to render such services.
(k)
“
Covered
Employee
” means an Employee who is, or is likely to become, a “covered employee” within the meaning of Section
162(m)(3) of the Code.
(l)
“
Director
”
means a member of the Board.
(m)
“
Disability
”
means total and permanent disability as defined in Section 22(e)(3) of the Code and as interpreted by the Administrator in each
case.
(n)
“
Effective
Date
” shall have the meaning given in Section 18 herein.
(o)
“
Employee
”
means a regular employee of the Company or an Affiliate, including an Officer or Director, who is treated as an employee in the
personnel records of the Company or an Affiliate, but not individuals who are classified by the Company or an Affiliate as: (i) leased
from or otherwise employed by a third party, (ii) independent contractors, or (iii) intermittent or temporary workers.
The Company’s or an Affiliate’s classification of an individual as an “Employee” (or as not an “Employee”)
for purposes of this Plan shall not be altered retroactively even if that classification is changed retroactively for another purpose
as a result of an audit, litigation or otherwise. Neither service as a Director nor receipt of a director’s fee shall be
sufficient to make a Director an “Employee.”
(p)
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended from time to time.
(q)
“
Fair
Market Value
” means, as of any date, the value of the Common Stock of the Company determined as follows:
(i) If the Common Stock is
then listed or admitted to trading on a Nasdaq market system or a stock exchange which reports closing sale prices, the Fair Market
Value shall be the closing sale price on the date of valuation on such Nasdaq market system or principal stock exchange on which
the Common Stock is then listed or admitted to trading, or, if no closing sale price is quoted on such day, then the Fair Market
Value shall be the closing sale price of the Common Stock on such Nasdaq market system or such exchange on the next preceding day
for which a closing sale price is reported;
(ii) If the Common Stock
is not then listed or admitted to trading on a Nasdaq market system or a stock exchange which reports closing sale prices, the
Fair Market Value shall be the average of the closing bid and asked prices of the Common Stock in the over-the-counter market on
the date of valuation; or
(iii) If neither (i) nor
(ii) is applicable as of the date of valuation, then the Fair Market Value shall be determined by the Administrator in good faith
using any reasonable method of valuation, which determination shall be conclusive and binding on all interested parties.
(r)
“
Incentive
Stock Option
” means an Option intended to qualify as an incentive stock option within the meaning of Section 422 of the
Code and the regulations promulgated thereunder.
(s)
“
Non-Employee
Director
” means a member of the Board who qualifies as a “Non-Employee Director” as defined in Rule 16b-3(b)(3)
of the Exchange Act, or any successor rule.
(t)
“
Nonstatutory
Stock Option
” means an Option not intended to qualify as an Incentive Stock Option.
(u)
“
Officer
”
means any person who is an officer of the Company within the meaning of Section 16 of the Exchange Act and the rules and regulations
promulgated thereunder.
(v)
“
Option
”
means a stock option granted pursuant to the Plan.
(w)
“
Option
Agreement
” means a written or electronic agreement between the Company and an Optionee evidencing the terms and conditions
of an individual Option grant. Each Option Agreement shall be subject to the terms and conditions of the Plan and any rules and
regulations adopted by the Administrator and incorporated therein.
(x)
“
Optionee
”
means the Participant to whom an Option is granted or, if applicable, such other person who holds an outstanding Option.
(y)
“
Option
Shares
” means the shares of Common Stock of the Company issued or issuable pursuant to the exercise of an Option.
(z)
“
Outside
Director
” means a Director who either (i) is not a current employee of the Company or an “affiliated corporation”
(within the meaning of Treasury Regulations promulgated under Section 162(m) of the Code), is not a former employee of the Company
or an “affiliated corporation” who receives compensation for prior services (other than benefits under a tax-qualified
retirement plan) during the taxable year, has not been an officer of the Company or an “affiliated corporation”, and
does not receive remuneration from the Company or an “affiliated corporation,” either directly or indirectly, in any
capacity other than as a Director or (ii) is otherwise considered an “outside director” for purposes of Section 162(m)
of the Code.
(aa)
“
Participant
”
means an Optionee or any other person to whom a Stock Award is granted pursuant to the Plan or, if applicable, such other person
who holds an outstanding Stock Award.
(bb)
“
Performance-Based
Award
” means a Stock Award granted to selected Covered Employees pursuant to Article 7, but which is subject to the terms
and conditions set forth in Article 8.
(cc)
“
Performance
Criteria
” means the criteria that the Administrator selects for purposes of establishing the Performance Goal or Performance
Goals for a Participant for a Performance Period. The Performance Criteria that will be used to establish Performance Goals are
limited to the following: net earnings (either before or after interest, taxes, depreciation and amortization), sales or revenue,
net income (either before or after taxes), operating earnings, cash flow (including, but not limited to, operating cash flow and
free cash flow), return on net assets, return on stockholders’ equity, return on sales, gross or net profit margin, working
capital, earnings per share and price per share of Common Stock, the achievement of certain milestones, customer retention rates,
licensing, partnership or other strategic transactions, obtaining a specified level of financing for the Company, as determined
by the Administrator, including the issuance of securities, or the achievement of one or more corporate, divisional or individual
scientific or inventive measures. Any of the criteria identified above may be measured either in absolute terms or as compared
to any incremental increase or as compared to results of a peer group. The Administrator shall, within the time prescribed by Section
162(m) of the Code, define in an objective fashion the manner of calculating the Performance Criteria it selects to use for such
Performance Period for such Participant.
(dd)
“
Performance
Goals
” means, for a Performance Period, the goals established in writing by the Administrator for the Performance Period
based upon the Performance Criteria. Depending on the Performance Criteria used to establish such Performance Goals, the Performance
Goals may be expressed in terms of overall Company performance or the performance of a Subsidiary, division or other operational
unit, or an individual. The Administrator, in its discretion, may, within the time prescribed by Section 162(m) of the Code, adjust
or modify the calculation of Performance Goals for such Performance Period in order to prevent the dilution or enlargement of the
rights of Participants (i) in the event of, or in anticipation of, any unusual or extraordinary corporate item, transaction, event,
or development, or (ii) in recognition of, or in anticipation of, any other unusual or nonrecurring events affecting the Company,
or the financial statements of the Company, or in response to, or in anticipation of, changes in applicable laws, regulations,
accounting principles, or business conditions.
(ee)
“
Performance
Period
” means the one or more periods of time, which may be of varying and overlapping durations, as the Administrator
may select, over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s
right to, and the payment of, a Performance-Based Award.
(ff)
“
Plan
”
means this Amended and Restated June 3, 2014 Equity Incentive Plan.
(gg)
“
Qualified
Performance-Based Compensation
” means any compensation that is intended to qualify as “qualified performance-based
compensation” as described in Section 162(m)(4)(C) of the Code
(hh)
“
Restricted
Stock
” means Common Stock awarded to a Participant pursuant to Section 7(b) that is subject to certain restrictions and
may be subject to risk of forfeiture or repurchase.
(ii)
“
Restricted
Stock Award Agreement
” means a written or electronic agreement between the Company and a Participant evidencing the terms
and conditions of a Restricted Stock award. Each Restricted Stock Award Agreement shall be subject to the terms and conditions
of the Plan and any rules and regulations adopted by the Administrator and incorporated therein.
(jj)
“
Restricted
Stock Unit
” means a right to receive a share of Common Stock during specified time periods granted pursuant to Section
7(c).
(kk)
“
Securities
Act
” means the Securities Act of 1933, as amended.
(ll) “Stock Award”
means any right granted under the Plan, including an Option, a right to acquire Restricted Stock, a Restricted Stock Unit, a Stock
Bonus or a Performance-Based Award.
(mm) “Stock Award
Agreement”
means any written or electronic agreement, including an Option Agreement, Stock Bonus Agreement, or Restricted
Stock Award Agreement, between the Company and a holder of a Stock Award evidencing the terms and conditions of an individual Stock
Award grant. Each Stock Award Agreement shall be subject to the terms and conditions of the Plan and any additional rules and regulations
adopted by the Administrator and incorporated therein.
(nn)
“
Stock
Bonus
” means a payment in the form of shares of Common Stock, or as part of any bonus, deferred compensation or other
arrangement, made in lieu of all or any portion of the compensation, granted pursuant to Section 7(a).
(oo)
“
Stock
Bonus Agreement
” means a written or electronic agreement between the Company and a Participant evidencing the terms and
conditions of a Stock Bonus. Each Stock Bonus Agreement shall be subject to the terms and conditions of the Plan and any rules
and regulations adopted by the Administrator and incorporated therein.
(pp) “Ten Percent
Stockholder”
means a person who owns (or is deemed to own pursuant to Section 424(d) of the Code) stock possessing more
than ten percent (10%) of the total combined voting power of all classes of stock of the Company or of any of its Affiliates.
(qq)
“
Termination
of Service
” means:
(i) With respect to Stock
Awards granted to a Participant in his or her capacity as an Employee, the time when the employer-employee relationship between
the Participant and the Company (or an Affiliate) is terminated for any reason, including, without limitation a termination by
resignation, discharge, death or retirement;
(ii) With respect to Stock
Awards granted to a Participant in his or her capacity as a Director, the time when the Participant ceases to be a Director for
any reason, including without limitation a cessation by resignation, removal, failure to be reelected, death or retirement, but
excluding cessations where there is a simultaneous or continuing employment of the former Director by the Company (or an Affiliate)
and the Administrator expressly deems such cessation not to be a Termination of Service;
(iii) With respect to Stock
Awards granted to a Participant in his or her capacity as a Consultant, the time when the contractual relationship between the
Participant and the Company (or an Affiliate) is terminated for any reason; and
(iv) With respect to Stock
Awards granted to a Participant in his or her capacity as an Employee, Director or Consultant of an Affiliate, when such entity
ceases to qualify as an Affiliate under this Plan, unless earlier terminated as set forth above.
Notwithstanding anything
to the contrary herein set forth, a change in status from an Employee to a Consultant or from a Consultant to an Employee shall
not constitute a Termination of Service for the purposes hereof, if and to the extent so determined by the Administrator. The Administrator,
in its sole and absolute discretion, shall determine the effect of all other matters and issues relating to a Termination of Service.
3.
Administration
.
(a)
Administration
by Board
.
The Plan shall be administered by the Administrator unless and until the Board delegates administration to a
Committee or an Officer, as provided in Section 3(c) below.
(b)
Powers of the
Administrator
.
The Administrator shall have the power, except as otherwise provided herein:
(i) To determine from time
to time (A) which of the persons eligible under the Plan shall be granted Stock Awards; (B) when and how the Stock Awards shall
be granted; (C) what type or combination of types of Stock Awards will be granted; (D) the terms and conditions of each Stock Award
granted (which need not be identical), including, without limitation, the transferability or repurchase of such Stock Awards or
Award Shares issuable thereunder, as applicable, and the circumstances under which Stock Awards become exercisable or vested or
are forfeited or expire, which terms may but need not be conditioned upon the passage of time, continued employment, the satisfaction
of performance criteria, the occurrence of certain events, or other factors; and (E) the number of Award Shares subject to a Stock
Award that shall be granted to a Participant.
(ii) To construe and interpret
the Plan and Stock Awards granted under it, and to make exceptions to any such provisions in good faith and for the benefit of
the Company, and to establish, amend and revoke rules and regulations for the Plan’s administration. The Administrator, in
the exercise of its power, may correct any defect, omission or inconsistency in the Plan or in any Stock Award Agreement in a manner
and to the extent it shall deem necessary or expedient to make the Plan fully effective.
(iii) To settle all controversies
regarding the Plan and Stock Awards granted under it.
(iv) To accelerate the time
at which a Stock Award may first be exercised or the time during which a Stock Award or any part thereof will vest in accordance
with the Plan, notwithstanding the provisions in the Stock Award stating the time at which it may first be exercised or the time
during which it will vest.
(v) To suspend or terminate
the Plan at any time. Suspension or termination of the Plan shall not impair rights and obligations under any Stock Award granted
while the Plan is in effect except with the written consent of the affected Participant.
(vi) To submit any amendment
to the Plan for stockholder approval.
(vii) To amend the Plan in
any respect the Administrator deems necessary or advisable to provide Participants with the maximum benefits provided or to be
provided under the provisions of the Code and the regulations promulgated thereunder relating to Incentive Stock Options or to
bring the Plan or Incentive Stock Options granted under it into compliance therewith.
(viii) To amend the terms
of any one or more Stock Awards, including, but not limited to, amendments to provide terms more favorable than previously provided
in the Stock Award Agreement, subject to any specified limits in the Plan that are not subject to Administrator discretion;
provided,
however,
that the rights under any Stock Award shall not be impaired by any such amendment unless (a) the Company requests
the consent of the affected Participant, and (b) such Participant consents in writing. Notwithstanding the foregoing, subject to
the limitations of applicable law, if any, and without the affected Participant’s consent, the Administrator may amend the
terms of any one or more Stock Awards if necessary to maintain the qualified status of the Stock Award as an Incentive Stock Option
or to bring the Stock Award into compliance with Section 409A of the Code and Department of Treasury regulations and other interpretive
guidance issued thereunder.
(ix) To amend the Plan as
provided in Section 16.
(x) To prescribe and amend
the terms of the agreements or other documents evidencing Stock Awards made under this Plan (which need not be identical).
(xi) To place such restrictions
on the sale or other disposition of Award Shares as may be deemed appropriate by the Administrator.
(xii) To determine whether,
and the extent to which, adjustments are required pursuant to Section 11.
(xiii) Generally, to exercise
such powers and to perform such acts as the Administrator deems necessary or expedient to promote the best interests of the Company.
(c)
Delegation to
a Committee
.
(i)
General
The Board may delegate administration of the Plan to a committee of the Board composed of not fewer than two (2) members (the “
Committee
”).
If administration is delegated to a Committee, the Committee shall have, in connection with the administration of the Plan, the
powers theretofore possessed by the Board (and references in the Plan to the Administrator shall thereafter be deemed to be references
to the Committee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from
time to time by the Board. The Board may abolish the Committee at any time and revest in the Board the administration of the Plan.
Appointment of Committee members shall be effective upon acceptance of appointment. In its sole discretion, the Board may at any
time and from time to time exercise any and all rights and duties of the Administrator under the Plan except with respect to matters
which under Rule 16b-3 under the Exchange Act or Section 162(m) of the Code, or any regulations or rules issued thereunder, are
required to be determined in the sole discretion of the Committee. Committee members may resign at any time by delivering written
notice to the Board. Vacancies in the Committee may only be filled by the Board.
(ii)
Section 162(m)
and Rule 16b-3 Compliance
In the discretion of the Board, the Committee may consist solely of two or more Outside
Directors, in accordance with Section 162(m) of the Code, and/or solely of two or more Non-Employee Directors, in accordance with
Rule 16b-3 of the Exchange Act. In addition, the Board or the Committee, in its discretion, may (1) delegate to a committee
of one or more members of the Board who need not be Outside Directors the authority to grant Stock Awards to eligible persons who
are either (a) not then Covered Employees and are not expected to be Covered Employees at the time of recognition of income resulting
from such Stock Award, or (b) not persons with respect to whom the Company wishes to comply with Section 162(m) of the Code, and/or
(2) delegate to a committee of one or more members of the Board who need not be Non-Employee Directors the authority to grant Stock
Awards to eligible persons who are not then subject to Section 16 of the Exchange Act.
(iii)
Delegation to
an Office
. The board may delegate to one or more Officers of the Company the authority to do one or both of the following:
(i) designate Officers and Employees of the Company or any of its Affiliates to be recipients of Stock Awards and (ii) determine
the number of shares of Common Stock to be subject to such Stock Awards granted to such Officers and Employees of the Company;
provided, however
, that the Board resolutions regarding such delegation shall specify the total number of shares of Common
Stock that may be subject to the Stock Awards granted by such Officer and that such Officer may not grant a Stock Award to himself
or herself. Notwithstanding anything to the contrary in this Section 3(c), the Board may not delegate to an Officer authority
to determine the Fair Market Value of the Common Stock.
(d)
Effect of Change
in Status
.
The Administrator shall have the absolute discretion to determine the effect upon a Stock Award, and
upon an individual’s status as an Employee, Consultant or Director under the Plan, including whether a Participant shall
be deemed to have experienced a Termination of Service or other change in status, and upon the vesting, expiration or forfeiture
of a Stock Award or Award Shares issuable in respect thereof, in the case of (i) a Termination of Service for cause, (ii) any leave
of absence approved by the Company or an Affiliate, (iii) any transfer between the Company and any Affiliate or between any Affiliates,
(iii) any change in the Participant’s status from an Employee to a Consultant or member of the Administrator of Directors,
or vice versa, and (v) any Employee who becomes employed by any partnership, joint venture, corporation or other entity not meeting
the requirements of an Affiliate.
(e)
Determinations
of the Administrator
. All decisions, determinations and interpretations by the Administrator regarding this Plan shall
be final and binding on all Participants or other persons claiming rights under the Plan or any Stock Award. The Administrator
shall consider such factors as it deems relevant to making such decisions, determinations and interpretations including, without
limitation, the recommendations or advice of any Director, Officer or Employee of the Company and such attorneys, consultants and
accountants as it may select. A Participant or other holder of a Stock Award may contest a decision or action by the Administrator
with respect to such person or Stock Award only on the grounds that such decision or action was arbitrary or capricious or was
unlawful, and any review of such decision or action shall be limited to determining whether the Administrator’s decision
or action was arbitrary or capricious or was unlawful.
(f)
Arbitration
.
Any dispute or claim concerning any Stock Awards granted (or not granted) pursuant to the Plan or any disputes or claims relating
to or arising out of the Plan shall be fully, finally and exclusively resolved by binding and confidential arbitration conducted
pursuant to the rules of Judicial Arbitration and Mediation Services, Inc. (“
JAMS
”) in the County of San Diego,
California. In addition to any other relief, the arbitrator may award to the prevailing party recovery of its attorneys’
fees and costs. By accepting a Stock Award, Participants and the Company waive their respective rights to have any such disputes
or claims tried by a judge or jury.
4.
Shares Subject to the Plan; Overall Limitation
(a)
Shares Subject
to the Plan
.
Subject to the provisions of Section 11 relating to adjustments upon changes in stock, the Award Shares that
may be issued pursuant to Stock Awards shall not exceed in the aggregate Twenty-Five Million (25,000,000) shares of the Company’s
Common Stock. Of such amount, Twenty-FIve Million (25,000,000) Award Shares may be issued pursuant to Incentive Stock Options.
In the event that (a) all or any portion of any Stock Award granted or offered under the Plan can no longer under any circumstances
be exercised or otherwise become vested, or (b) any Award Shares are reacquired by the Company which were initially the subject
of a Stock Award Agreement, the Award Shares allocable to the unexercised or unvested portion of such Stock Award, or the Award
Shares so reacquired, shall again be available for grant or issuance under the Plan.
(b)
Individual Participant
Limitations
.
Notwithstanding any provision in the Plan to the contrary, and subject to Article 11 below, the maximum number
of shares of Common Stock with respect to one or more Stock Awards that may be granted to any one Participant during any calendar
year shall be Four Million (4,000,000).
5.
Eligibility
(a)
General
.
Incentive Stock Options may be granted only to Employees; all other Stock Awards may be granted only to Employees, Directors
and Consultants. In the event a Participant is both an Employee and a Director, or a Participant is both a Director and a Consultant,
the Stock Award Agreement shall specify the capacity in which the Participant is granted the Stock Award;
provided, however
,
if the Stock Award Agreement is silent as to such capacity, the Stock Award shall be deemed to be granted to the Participant as
an Employee or as a Consultant, as applicable.
(b)
Ten Percent Stockholders
.
A Ten Percent Stockholder shall not be granted an Incentive Stock Option unless the exercise price of such Option is at least
one hundred ten percent (110%) of the Fair Market Value of the Common Stock at the date of grant and the Option is not exercisable
after the expiration of five (5) years from the date of grant.
6.
Option Agreement Provisions
Each Option shall be granted
pursuant to a written Option Agreement, signed by an Officer of the Company and by the Optionee, which shall be in such form and
shall contain such terms and conditions as the Administrator shall deem appropriate. The provisions of separate Option Agreements
need not be identical, but each Option Agreement shall include (through incorporation of the provisions hereof by reference in
the Option Agreement or otherwise) the substance of each of the following provisions (except to the extent that any such provision
indicates it is permissible rather than mandatory):
(a)
Term
.
No Incentive Stock Option shall be exercisable after the expiration of ten (10) years from the date of its grant or such shorter
period specified in the Option Agreement;
provided, however
, that an Incentive Stock Option granted to a Ten Percent Stockholder
shall be subject to the provisions of Section 5(b).
(b)
Exercise Price
of an Option
.
Subject to the provisions of Section 5(b) regarding Incentive Stock Options granted to Ten Percent Stockholders,
the exercise price of each Incentive Stock Option shall be not less than the Fair Market Value of the Common Stock subject to the
Option on the date the Option is granted. The Administrator shall determine the exercise price of each Nonstatutory Stock Option.
Notwithstanding the foregoing, an Incentive Stock Option may be granted with an exercise price lower than one hundred percent (100%)
of the Fair Market Value of the Common Stock subject to the Option if such Incentive Stock Option is granted pursuant to an assumption
of or substitution for another option in a manner consistent with the provisions of Section 424(a) of the Code.
(c)
Consideration
.
The purchase price of Common Stock acquired pursuant to the exercise of an Option shall be paid, to the extent permitted by applicable
law and as determined by the Administrator in its sole discretion, by any combination of the methods of payment set forth below.
The Administrator shall have the authority to grant Options that do not permit all of the following methods of payment (or otherwise
restrict the ability to use certain methods) and to grant Options that require the consent of the Company to utilize a particular
method of payment. The methods of payment permitted by this Section 6(c) are:
(i) by cash or check;
(ii) pursuant to a program
developed under Regulation T as promulgated by the Federal Reserve Administrator that, prior to the issuance of Common Stock, results
in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the aggregate exercise
price to the Company from the sales proceeds;
(iii) by delivery to the
Company (either by actual delivery or attestation) of shares of Common Stock;
(iv) by a “net exercise”
arrangement pursuant to which the Company will reduce the number of shares of Common Stock issued upon exercise by the largest
whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price;
provided, however,
that
the Company shall accept a cash or other payment from the Participant to the extent of any remaining balance of the aggregate exercise
price not satisfied by such reduction in the number of whole shares to be issued;
provided, further, however,
that shares
of Common Stock will no longer be outstanding under an Option and will not be exercisable thereafter to the extent that (A) shares
are used to pay the exercise price pursuant to the “net exercise,” (B) shares are delivered to the Participant as a
result of such exercise, and (C) shares are withheld to satisfy tax withholding obligations; or
(v) in any other form of
legal consideration that may be acceptable to the Administrator.
(d)
Transferability
.
The following restrictions on the transferability of Options shall apply:
(i)
Restrictions on
Transfer
.
An Option shall not be transferable except by will or by the laws of descent and distribution and shall be exercisable
during the lifetime of the Optionee only by the Optionee; provided, however, that the Administrator may, in its sole discretion,
permit transfer of the Option to a revocable trust. Notwithstanding the foregoing, however, an Incentive Stock Option shall not
be transferable other than by will or the laws of descent and distribution, and shall be exercisable only by the Optionee during
the Optionee’s lifetime, except as otherwise permitted by the Administrator and by Sections 421, 422 and 424 of the Code
and the regulations and other guidance thereunder.
(ii)
Domestic Relations
Orders
.
Notwithstanding the foregoing, an Option may be transferred pursuant to a domestic relations order;
provided,
however
, that if an Option is an Incentive Stock Option, such Option shall be deemed to be a Nonstatutory Stock Option as a
result of such transfer.
(iii)
Beneficiary Designation
.
Notwithstanding the foregoing, the Optionee may, by delivering written notice to the Company, in a form provided by or otherwise
satisfactory to the Company, designate a third party who, in the event of the death of the Optionee, shall thereafter be the beneficiary
of an Option with the right to exercise the Option and receive the Common Stock or other consideration resulting from an Option
exercise. In the absence of such a designation, the executor or administrator of the Optionee’s estate shall be entitled
to exercise the Option and receive the Common Stock or other consideration resulting from an Option exercise.
(e)
Vesting
.
Each Option shall vest and become exercisable in one or more installments, at such time or times and subject to such conditions,
including without limitation the achievement of specified performance goals or objectives established with respect to one or more
performance criteria, as shall be determined by the Administrator.
(f)
Termination of
Service
. In the event of the Termination of Service of an Optionee for any reason (other than for “Cause,”
as defined in an Option Agreement, or upon the Optionee’s death or Disability), the Optionee may exercise his or her Option,
but only within such period of time as is set forth in the Option Agreement (and in no event later than the expiration of the term
of such Option as set forth in the Option Agreement). In the case of an Incentive Stock Option, such exercise period provided in
the Option Agreement shall not exceed three (3) months from the date of termination.
(g)
Disability of
Optionee
. In the event of a Termination of Service of an Optionee as a result of the Optionee’s Disability, the Optionee
may exercise his or her Option within the period specified in the Option Agreement (in no event to exceed twelve (12) months from
the date of such termination in the case of an Incentive Stock Option), and only to the extent that the Optionee was entitled to
exercise the Option at the date of such termination (but in no event later than the expiration of the term of such Option as set
forth in the Option Agreement).
(h)
Death of Optionee
.
In the event that (i) an Optionee’s Termination of Service occurs as a result of the Optionee’s death, or (ii) an Optionee
dies within the period (if any) specified in the Option Agreement after the Optionee’s Termination of Service for a reason
other than death, then, notwithstanding Section 6(f) above, the Option may be exercised (to the extent the Optionee was entitled
to exercise such Option as of the date of death) by the Optionee’s estate, by a person who acquired the right to exercise
the Option by bequest or inheritance or by a person designated to exercise the option upon the Optionee’s death, but only
within the period ending on the earlier of (i) the date that is twelve (12) months after the date of Termination of Service, or
(ii) the expiration of the term of such Option as set forth in the Option Agreement.
(i)
Termination for
Cause
.
In the event of the Termination of Service of an Optionee for Cause, except as otherwise determined by the Administrator
in the specific situation, all Options granted to such Optionee shall expire as set forth in the Option Agreement.
(j)
Extension of
Termination Date
. An Optionee’s Option Agreement may provide that if the exercise of the Option following an Optionee’s
Termination of Service (other than for Cause or upon the Optionee’s death or Disability) would be prohibited at any time
solely because the issuance of shares of Common Stock would violate the registration requirements under the Securities Act, then
the Option shall terminate on the earlier of (i) the expiration of a period of three (3) months after the termination of the Optionee’s
Continuous Service during which the exercise of the Option would not be in violation of such registration requirements, or (ii)
the expiration of the term of the Option as set forth in the Option Agreement.
(k)
Non-Exempt Employees
.
Unless otherwise determined by the Administrator of Directors, no Option granted to an Employee that is a non-exempt employee for
purposes of the Fair Labor Standards Act of 1938, as amended, shall be first exercisable for any shares of Common Stock until at
least six months following the date of grant of the Option. The foregoing provision is intended to operate so that any income derived
by a non-exempt employee in connection with the exercise or vesting of an Option will be exempt from his or her regular rate of
pay.
(l)
Early Exercise
.
The Option may, but need not, include a provision whereby the Optionee may elect at any time prior to a Termination of Service
to exercise the Option as to any part or all of the Option Shares prior to the full vesting of the Option. Any unvested Option
Shares so purchased may be subject to an unvested share repurchase option in favor of the Company or to any other restriction the
Administrator determines to be appropriate.
7.
Provisions of Stock Awards Other Than Options
(a)
Stock Bonus Awards
.
Stock Bonus awards shall be made pursuant to Stock Bonus Agreements in such form and containing such terms and conditions as the
Administrator shall deem appropriate. The terms and conditions of Stock Bonus Agreements may change from time to time, and the
terms and conditions of separate Stock Bonus Agreements need not be identical, but each Stock Bonus Agreement shall include (through
incorporation of provisions hereof by reference in the agreement or otherwise) the substance of each of the following provisions
(except to the extent that any such provision indicates it is permissible rather than mandatory):
(i)
Consideration
.
A Stock Bonus may be awarded in consideration for past services actually rendered to the Company or an Affiliate for its benefit,
provided that the Participant remains eligible to receive Stock Awards hereunder at the time of the award.
(ii)
Vesting
.
Award Shares issued pursuant to a Stock Bonus Agreement may, but need not, be subject to a share repurchase option in favor of
the Company in accordance with a vesting schedule to be determined by the Administrator.
(iii)
Termination of
Service
.
In the event of a Termination of Service, the Company may reacquire any or all of the Award Shares held by the
Participant which have or have not vested as of the date of termination under the terms of the Stock Bonus Agreement.
(iv)
Transferability
.
Unless otherwise determined by the Administrator, rights to acquire Award Shares under the Stock Bonus Agreement shall not be transferable
except by will or by the laws of descent and distribution, or, to the extent permitted by the Administrator, to a revocable trust.
(b)
Restricted Stock
Awards
.
Each Restricted Stock award shall be made pursuant to a Restricted Stock Award Agreement in such form and containing
such terms and conditions as the Administrator shall deem appropriate. The terms and conditions of the Restricted Stock Award Agreements
may change from time to time, and the terms and conditions of separate Restricted Stock Award Agreements need not be identical,
but each Restricted Stock Award Agreement shall include (through incorporation of provisions hereof by reference in the agreement
or otherwise) the substance of each of the following provisions (except to the extent that any such provision indicates it is permissible
rather than mandatory):
(i)
Purchase Price
.
The purchase price under each Restricted Stock Award Agreement shall be such amount as the Administrator shall determine and designate
in such Restricted Stock Award Agreement, including no consideration or such minimum consideration as may be required by applicable
law.
(ii)
Consideration
.
The purchase price of Common Stock acquired pursuant to the Restricted Stock Award Agreement, if any, shall be paid either: (a)
in cash at the time of purchase; (b) at the discretion of the Administrator, according to a deferred payment or other similar arrangement
with the Participant; or (c) in any other form of legal consideration that may be acceptable to the Administrator in its discretion.
(iii)
Vesting
.
Award Shares acquired under the Restricted Stock Award Agreement may, but need not, be subject to a share repurchase option in
favor of the Company in accordance with a vesting schedule to be determined by the Administrator.
(iv)
Termination of
Service
.
In the event of a Participant’s Termination of Service, the Company may repurchase or otherwise reacquire
any or all of the Award Shares held by the Participant which have or have not vested as of the date of termination under the terms
of the Restricted Stock Award Agreement.
(v)
Transferability
.
Unless otherwise determined by the Administrator, rights to acquire Award Shares under the Restricted Stock Award Agreement shall
not be transferable except by will, by the laws of descent and distribution, or, to the extent permitted by the Administrator,
to a revocable trust.
(c)
Restricted Stock
Units
.
The Administrator is authorized to make Awards of Restricted Stock Units to any Participant selected by the Administrator
in such amounts and subject to such terms and conditions as determined by the Administrator. At the time of grant, the Administrator
shall specify the date or dates on which the Restricted Stock Units shall become fully vested and nonforfeitable, and may specify
such conditions to vesting as it deems appropriate. Alternatively, Restricted Stock Units may become fully vested and nonforfeitable
pursuant to the satisfaction of one or more Performance Goals or other specific performance goals as the Administrator determines
to be appropriate at the time of the grant of the Restricted Stock Units or thereafter, in each case on a specified date or dates
or over any period or periods determined by the Administrator. At the time of grant, the Administrator shall specify the maturity
date applicable to each grant of Restricted Stock Units which shall be no earlier than the vesting date or dates of the Award and
may be determined at the election of the Participant to whom the Award is granted. On the maturity date, the Company shall transfer
to the Participant one unrestricted, fully transferable share of Stock for each Restricted Stock Unit that is vested and scheduled
to be distributed on such date and not previously forfeited. The Administrator shall specify the purchase price, if any, to be
paid by the Participant to the Company for such shares of Stock. All Restricted Stock Unit awards shall be subject to such additional
terms and conditions as determined by the Administrator and shall be evidenced by a written Stock Award Agreement.
8.
Performance-Based Awards
(a)
Purpose
.
The purpose of this Article 8 is to provide the Administrator the ability to qualify Stock Awards other than Options as Qualified
Performance-Based Compensation. If the Administrator, in its discretion, decides to grant a Performance-Based Award to a Covered
Employee, the provisions of this Article 8 shall control over any contrary provision contained in Article 7;
provided, however
,
that the Administrator may in its discretion grant Stock Awards to Covered Employees that are based on Performance Criteria or
Performance Goals but that do not satisfy the requirements of this Article 8.
(b)
Applicability
.
This Article 8 shall apply only to those Covered Employees selected by the Administrator to receive Performance-Based Awards. The
designation of a Covered Employee as a Participant for a Performance Period shall not in any manner entitle the Participant to
receive an Award for the period. Moreover, designation of a Covered Employee as a Participant for a particular Performance Period
shall not require designation of such Covered Employee as a Participant in any subsequent Performance Period and designation of
one Covered Employee as a Participant shall not require designation of any other Covered Employees as a Participant in such period
or in any other period.
(c)
Procedures with
Respect to Performance-Based Awards
.
To the extent necessary to comply with the Qualified Performance-Based Compensation
requirements of Section 162(m)(4)(C) of the Code, with respect to any Award granted under Article 7 which may be granted to one
or more Covered Employees, no later than ninety (90) days following the commencement of any fiscal year in question or any other
designated fiscal period or period of service (or such other time as may be required or permitted by Section 162(m) of the Code),
the Administrator shall, in writing, (a) designate one or more Covered Employees, (b) select the Performance Criteria applicable
to the Performance Period, (c) establish the Performance Goals, and amounts of such Awards, as applicable, which may be earned
for such Performance Period, and (d) specify the relationship between Performance Criteria and the Performance Goals and the amounts
of such Awards, as applicable, to be earned by each Covered Employee for such Performance Period. Following the completion of each
Performance Period, the Administrator shall certify in writing whether the applicable Performance Goals have been achieved for
such Performance Period. In determining the amount earned by a Covered Employee, the Administrator shall have the right to reduce
or eliminate (but not to increase) the amount payable at a given level of performance to take into account additional factors that
the Administrator may deem relevant to the assessment of individual or corporate performance for the Performance Period.
(d)
Payment of Performance-Based
Awards
.
Unless otherwise provided in the applicable Stock Award Agreement, a Participant must be employed by the Company
or a Parent or Subsidiary on the day a Performance-Based Award for such Performance Period is paid to the Participant. Furthermore,
a Participant shall be eligible to receive payment pursuant to a Performance-Based Award for a Performance Period only if the Performance
Goals for such period are achieved.
(e)
Additional Limitations
.
Notwithstanding any other provision of the Plan, any Award which is granted to a Covered Employee and is intended to constitute
Qualified Performance-Based Compensation shall be subject to any additional limitations set forth in Section 162(m) of the Code
(including any amendment to Section 162(m) of the Code) or any regulations or rulings issued thereunder that are requirements for
qualification as qualified performance-based compensation as described in Section 162(m)(4)(C) of the Code, and the Plan shall
be deemed amended to the extent necessary to conform to such requirements.
9.
Covenants of the Company
(a)
Availability
of Shares
.
During the terms of the Stock Awards, the Company shall keep available at all times the number of shares of
Common Stock required to satisfy such Stock Awards.
(b)
Compliance with
Laws and Regulations
. This Plan, the grant and exercise of Stock Awards thereunder, and the obligation of the Company to
sell, issue or deliver Award Shares under such Stock Awards, shall be subject to all applicable federal, state and local laws,
rules and regulations and to such approvals by any governmental or regulatory agency as may be required. The Company shall not
be required to register in a Participant’s name or deliver any Award Shares prior to the completion of any registration or
qualification of such Shares under any federal, state or local law or any ruling or regulation of any government body which the
Administrator shall determine to be necessary or advisable. To the extent the Company is unable to or the Administrator deems it
infeasible to obtain authority from any regulatory body having jurisdiction, which authority is deemed by the Company’s counsel
to be necessary or advisable for the lawful issuance and sale of any Award Shares hereunder, the Company shall be relieved of any
liability with respect to the failure to issue or sell such Award Shares as to which such requisite authority shall not have been
obtained. No Option shall be exercisable and no Award Shares shall be issued and/or transferable under any other Stock Award unless
a registration statement with respect to the Award Shares underlying such Stock Award is effective and current or the Company has
determined that such registration is unnecessary.
10.
Use of Proceeds
Proceeds from the sale
of Award Shares shall constitute general funds of the Company and shall be used for general operating capital of the Company.
11.
Adjustments Upon Change in Common Stock
If any change is made in
the Common Stock subject to the Plan or subject to any Stock Award without the receipt of consideration by the Company (through
merger, consolidation, reorganization, recapitalization, reclassification, stock dividend, dividend in property other than cash,
stock split, reverse stock split, liquidating dividend, exchange of shares, change in corporate structure or other distribution
of the Company’s equity securities), the Plan and all outstanding Stock Awards will be appropriately adjusted in the class
and maximum number of shares subject to the Plan and the class and number of shares and price per share of Common Stock subject
to outstanding Stock Awards. Such adjustment shall be made by the Administrator, the determination of which shall be final, binding
and conclusive.
12.
Adjustments Upon Change in Control
(a)
The Administrator
shall have the discretion to provide in each Stock Award Agreement the terms and conditions that relate to (i) vesting of such
Stock Award in the event of a Change in Control, and (ii) assumption of such Stock Award Agreements or issuance of comparable securities
under an incentive program in the event of a Change in Control. The aforementioned terms and conditions may vary in each Stock
Award Agreement.
(b)
If the terms
of an outstanding Option Agreement provide for accelerated vesting in the event of a Change in Control, or to the extent that an
Option is vested and not yet exercised, the Administrator in its discretion may provide, in connection with the Change in Control
transaction, for the purchase or exchange of each Option for an amount of cash or other property having a value equal to the difference
(or “spread”) between: (x) the value of the cash or other property that the Optionee would have received pursuant to
the Change in Control transaction in exchange for the vested Option Shares issuable upon exercise of the Option had the Option
been exercised immediately prior to the Change in Control, and (y) the aggregate exercise price of the vested Option Shares. If
in such case the aggregate exercise price of the vested Option Shares is greater than or equal to the value of the cash or other
property that the Optionee would have received pursuant to the Change in Control transaction in exchange for the vested Option
Shares had the Option been exercised immediately prior to the Change in Control, then the Option shall be cancelled and Optionee
shall receive no payment for such Option Shares. Upon such purchase, exchange or cancellation, the Option shall be terminated and
Optionee shall have no further rights with respect to such Option.
(c)
Outstanding
Options shall terminate and cease to be exercisable upon consummation of a Change in Control except to the extent that the Options
are assumed by the successor entity (or parent thereof) pursuant to the terms of the Change in Control transaction.
13.
Acceleration of Exercisability and Vesting
.
The Administrator shall
have the power to accelerate the time at which any or all Stock Awards may first be exercised or the time during which any or all
Stock Awards or any part thereof will vest in accordance with the Plan, notwithstanding the provisions in any Stock Award stating
the time at which it may first be exercised or the time during which it will vest. By approval of the Plan, the Company’s
stockholders consent to any such accelerations in the Administrator’s sole discretion.
14.
Dissolution or Liquidation
In the event of a dissolution
or liquidation of the Company, then all outstanding Stock Awards shall terminate immediately prior to such event.
15.
Miscellaneous
(a)
Stockholder Rights
.
Neither a Participant nor any person to whom a Stock Award is transferred shall be deemed to be the holder of, or to have any
of the rights of a holder with respect to, any Award Shares unless and until such person has satisfied all requirements for exercise
of the Stock Award pursuant to its terms and the Company has duly issued a stock certificate for such Award Shares.
(b)
No Employment
or Other Service Rights
.
Nothing in the Plan or any Stock Award Agreement shall confer upon any Participant any right to
continue to serve the Company or an Affiliate in the capacity in effect at the time the Stock Award was granted or shall affect
the right of the Company or an Affiliate to terminate (i) the employment of an Employee with or without notice and with or without
Cause; (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate;
or (iii) the service of a Director pursuant to the Bylaws or Certificate of Incorporation of the Company or an Affiliate, and any
applicable provisions of the corporate law of the state in which the Company or the Affiliate is incorporated, as the case may
be.
(c)
Incentive Stock
Option $100,000 Limitation
.
To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common
Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionee during any calendar year
(under all plans of the Company and any Affiliates) exceeds One Hundred Thousand Dollars ($100,000), the Options or portions thereof
that exceed such limit (according to the order in which they were granted) shall be treated as Nonstatutory Stock Options, notwithstanding
any contrary provision of the applicable Option Agreement(s).
(d)
Investment Assurances
.
The Company may require a Participant, as a condition of exercising an Option or otherwise acquiring Common Stock under any Stock
Award, (i) to give written assurances satisfactory to the Company as to the Participant’s knowledge and experience in financial
and business matters and/or to employ a purchaser representative reasonably satisfactory to the Company who is knowledgeable and
experienced in financial and business matters and that he or she is capable of evaluating, alone or together with the purchaser
representative, the merits and risks of exercising the Stock Award; and (ii) to give written assurances satisfactory to the Company
stating that the Participant is acquiring Common Stock subject to the Stock Award for the Participant’s own account and not
with any present intention of selling or otherwise distributing the Common Stock. The foregoing requirements, and any assurances
given pursuant to such requirements, shall be inoperative if (x) the issuance of the shares upon the exercise or acquisition of
Common Stock under the Stock Award has been registered under a then currently effective registration statement under the Securities
Act; or (y) as to any particular requirement, a determination is made by counsel for the Company that such requirement need not
be met in the circumstances under the then applicable securities laws. The Company may, upon advice of counsel to the Company,
place legends on stock certificates issued under the Plan as such counsel deems necessary or appropriate in order to comply with
applicable securities laws, including, but not limited to, legends restricting the transfer of the Common Stock.
(e)
Withholding Obligations
.
The Company may, in its sole discretion, satisfy any federal, state or local tax withholding obligation relating to a Stock Award
by any of the following means (in addition to the Company’s right to withhold from any compensation paid to the Participant
by the Company) or by a combination of such means: (i) causing the Participant to tender a cash payment; (ii) withholding
shares of Common Stock from the shares of Common Stock issued or otherwise issuable to the Participant in connection with the Stock
Award, provided that no shares of Common Stock are withheld with a value exceeding the minimum amount of tax required to be withheld
by law (or such lower amount as may be necessary to avoid classification of the Stock Award as a liability); or (iii) by such other
method as may be set forth in the Stock Award Agreement.
(f)
Compliance with
Section 409A of the Code
.
To the extent applicable, the Plan and Stock Award Agreements shall be interpreted in accordance
with Section 409A of the Code and Department of Treasury regulations and other interpretive guidance issued thereunder, including
without limitation any such regulations or other guidance that may be issued or amended after the Effective Date (as defined in
Section 18 below). Notwithstanding any provision of the Plan or Stock Award to the contrary, in the event that following the Effective
Date the Administrator determines that any Stock Award may be subject to Section 409A of the Code and related Department of Treasury
guidance (including such Department of Treasury guidance as may be issued after the Effective Date), the Administrator may adopt
such amendments to the Plan and the applicable Stock Award Agreement or adopt other policies and procedures (including amendments,
policies and procedures with retroactive effect), or take any other actions, that the Administrator determines are necessary or
appropriate to (i) exempt the Stock Award from Section 409A of the Code and/or preserve the intended tax treatment of the benefits
provided with respect to the Stock Award; or (ii) comply with the requirements of Section 409A of the Code and Department of Treasury
regulations and other interpretive guidance issued thereunder, including without limitation any such regulations or other guidance
that may be issued or amended after the Effective Date.
16.
Amendment of the Plan
(a)
In General
.
The Administrator at any time, and from time to time, may amend the Plan. However, no amendment shall be effective unless approved
by the stockholders of the Company within twelve (12) months before or after the adoption of the amendment where the amendment
will:
(i) Increase the number of
shares reserved for Stock Awards under the Plan, except as provided in Section 11 relating to adjustments upon changes in Common
Stock;
(ii) Modify the requirements
as to eligibility for participation in the Plan (to the extent such modification requires stockholder approval in order for the
Plan to satisfy the requirements of Section 422 of the Code); or
(iii) Modify the Plan in
any other way if such modification requires stockholder approval in order for the Plan to satisfy the requirements of Section 422
of the Code.
(b)
Amendment to
Maximize Benefits
.
It is expressly contemplated that the Administrator may amend the Plan in any respect the Administrator
deems necessary or advisable to provide Participants with the maximum benefits provided or to be provided under the provisions
of the Code and the regulations promulgated thereunder relating to Incentive Stock Options and/or to bring the Plan and/or Incentive
Stock Options granted under the Plan into compliance therewith.
(c)
No Impairment
.
The rights and obligations under any Stock Award granted before any amendment of the Plan shall not be altered or impaired
by such amendment unless the Company requests the consent of the person to whom the Stock Award was granted and such person consents
in writing;
provided
,
however
, that notwithstanding anything to the contrary in this Section 16 or elsewhere in this
Plan, no such consent shall be required with respect to any amendment or alteration if the Administrator determines in its sole
discretion that such amendment or alteration either (i) is required or advisable in order for the Company, the Plan or the Stock
Award to satisfy or conform to any law or regulation or to meet the requirements of any accounting standard, or (ii) is not reasonably
likely to significantly diminish the benefits provided under such Award, or that any such diminishment has been adequately compensated.
17.
Termination or Suspension of the Plan
.
(a)
Termination or
Suspension
. The Board may suspend or terminate the Plan at any time. Unless sooner terminated, the Plan shall terminate
on June 3, 2024 (which shall be within ten (10) years from the date the Plan is adopted by the Board or approved by the stockholders
of the Company, whichever is earlier), and no Stock Awards may be granted under the Plan while the Plan is suspended or after it
is terminated, but Stock Awards and Stock Award Agreements then outstanding shall continue in effect in accordance with their respective
terms.
(b)
No Impairment
.
Rights and obligations under any Stock Award granted while the Plan is in effect shall not be altered or impaired by suspension
or termination of the Plan, except as otherwise provided herein or with the consent of the person to whom the Stock Award was granted.
18.
Effective Date of Plan
The Plan became effective
on June 3, 2014, which is the date that the Plan was originally adopted by the Board (the “Effective Date”).
19.
Non-Exclusivity of the Plan
Neither the adoption of
this Plan by the Board nor the submission of this Plan to the stockholders of the Company for approval shall be construed as creating
any limitations on the power of the Board to adopt such other incentive arrangements as either may deem desirable, including, without
limitation, the granting of stock options or restricted stock otherwise than under this Plan, and such arrangements may be either
generally applicable or applicable only in specific cases.
20.
Liability of the Company
The Company and the members
of the Board shall not be liable to a Participant or any other persons as to: (a) the non-issuance or non-transfer, or any delay
of issuance or transfer, of any Award Shares which results from the inability of the Company to comply with, or to obtain, or from
any delay in obtaining from any regulatory body having jurisdiction, all requisite authority to issue or transfer Award Shares
if counsel for the Company deems such authority reasonably necessary for lawful issuance or transfer of any such shares and, in
furtherance thereof, appropriate legends may be placed on the stock certificates evidencing Award Shares to reflect such transfer
restrictions; and (b) any tax consequence expected, but not realized, by any Participant or other person due to the receipt, exercise
or settlement of any Option or other Stock Award granted hereunder.
21.
Choice of Law
The laws of the State of
Nevada shall govern all questions concerning the construction, validity and interpretation of this Plan, without regard to such
state’s conflict of laws rules.
June 3, 2014
AMENDED AND RESTATED EQUITY INCENTIVE PLAN
OF
CV
SCIENCES, INC.
AS AMENDED
Attachment B
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
CV SCIENCES, INC.
CV Sciences, Inc.,
a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, does hereby certify
that:
1. The
name of the corporation is CV Sciences, Inc. (the “
Corporation
”).
2. The
original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on July
26, 2013 and a Certificate of Amendment of Certificate of Incorporation of the Corporation was filed with the Secretary of State
of the State of Delaware on January 4, 2016.
3. Article
IV of the Certificate of Incorporation of the Corporation is hereby amended by adding the following paragraph to the end of Article
IV:
“At the effective
time of this Certificate of Amendment, each [________] (_____) issued and outstanding shares of Common Stock of the Corporation
shall, automatically and without any further action on the part of the Corporation or the holder thereof, be combined and converted
into one (1) validly issued, fully paid and non-assessable share of Common Stock of the Corporation, provided that in the event
a stockholder would otherwise be entitled to a fraction of a share of Common Stock of the Corporation pursuant to the provisions
of this Article IV, such stockholder shall receive one whole share of Common Stock of the Corporation in lieu of such fractional
share and no fractional shares shall be issued.”
4. This
Certificate of Amendment has been duly adopted by the Board of Directors and stockholders of the Corporation in accordance with
the applicable provisions of Sections 228 and 242 of the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF,
the undersigned has executed this Certificate of Amendment as of ______ ___, 201_.
CV SCIENCES, INC.,
a Delaware corporation
__________________________
Michael
Mona, Jr., President
CV SCIENCES, INC.
PROXY SOLICITED BY THE BOARD OF DIRECTORS
FOR THE MEETING OF STOCKHOLDERS
TO BE HELD JULY 14, 2017
The undersigned hereby appoints Michael Mona,
Jr. proxy of the undersigned, with power of substitution, to vote all shares held by the undersigned which are entitled to be voted
at the Meeting of the Stockholders of CV Sciences, Inc. (the “
Company
”) to be held July 14, 2017, and
any adjournment(s) thereof, as effectively as the undersigned could do if personally present.
The Board of Directors of the Company recommends
a vote FOR all persons listed in Proposal 1 and a vote FOR Proposals 2, 3, 4 and 5.
All the following matters are proposed by the
Company:
(1)
|
To elect the following persons as directors, each to serve until the next Annual Meeting of Stockholders, and until his successor is duly elected and qualified:
|
Michael Mona, Jr.
James McNulty
Michael Mona, III
Gary Sligar
Stephen Schmitz, MD
|
__
|
FOR all persons listed (except as marked to the contrary below.)
|
|
__
|
Withhold authority to vote for all nominees
|
|
__
|
Withhold authority to vote for nominee(s), named below:
|
|
|
|
|
(2)
|
To ratify Tanner LLC, as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2017:
|
|
__
|
FOR
|
|
__
|
AGAINST
|
|
__
|
ABSTAIN
|
|
(3)
|
To amend the Company’s Amended and Restated 2013 Equity Incentive Plan, as amended, to increase the number of shares issuable under the plan:
|
|
__
|
FOR
|
|
__
|
AGAINST
|
|
__
|
ABSTAIN
|
|
(4)
|
To approve an amendment to the Company’s Certificate of Incorporation, as amended, to effect, at
the discretion of the Company’s Board of Directors, a reverse stock split of all outstanding shares of the Company’s
common stock, par value $0.0001 per share, at a ratio of not less than 1-for-5 and not greater than 1-for-50, such ratio to be
determined by the Company’s Board of Directors at any time prior to June 30, 2018, without further approval or authorization
of our stockholders:
|
|
__
|
FOR
|
|
__
|
AGAINST
|
|
__
|
ABSTAIN
|
|
(5)
|
In the discretion of the Proxy holder, such other business as may properly come before the meeting or any adjournment thereof.
|
|
__
|
FOR
|
|
__
|
AGAINST
|
|
__
|
ABSTAIN
|
The shares represented by this Proxy will be
voted as directed. WHERE NO DIRECTION IS GIVEN, THE SHARES WILL BE VOTED
FOR
MATTERS 1, 2, 3, 4 and 5 above.
The undersigned hereby revokes any proxy or
proxies heretofore given to vote or act with respect to the capital stock of the Company and hereby ratifies and confirms all that
the Proxy, or his substitutes, or any of them, may lawfully do by virtue hereof.
Please sign below, date, detach and return
this page promptly in the enclosed envelope.
Dated:_______________
|
|
|
|
|
(Signature)
|
Dated:_______________
|
|
|
|
|
(Signature - Joint Owners)
|
IMPORTANT: Please date this Proxy and sign
your name exactly as it appears to the left. When signing on behalf of a corporation, partnership, estate, trust or in other representative
capacity, please sign name and title. Where there is more than one owner, each owner must sign.
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