Item
5.02.
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
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Director
and Officer Resignations
Effective
upon completion of the Offer, Srinidhi “Dev” Devanur, the Company’s Executive Chairman and a director of the
Board, Brent Kelton, the Company’s Chief Executive Officer, Barry Kostiner, the Company’s Chief Financial Officer,
Carmo Martella, a director of the Board, Thoranath Sukumaran, a director of the Board and Dimitrios Angelis, a director of the
Board, all tendered their resignations from their respective positions as officers and directors of the Company. These letters
did not contain any statements describing disagreements with the Company related to its operations, policies or practices, nor
did any disagreements lead to their resignation.
Director
Appointments
Pursuant
to the terms of the Tender Agreement, and as disclosed in the proxy statement/prospectus filed by the Company, as subsequently
supplemented, the Board appointed David Johnson, George Kegler, Sol Mayer and Marcus Schabacker to the Board at the effective
time of the Offer.
Effective
upon completion of the Offer, the Board appointed (i) George Kegler, Sol Mayer and Marcus Schabacker as the members of the Audit
Committee of the Board, with George Kegler serving as the chair of such committee, (ii) George Kegler, Sol Mayer and Marcus Schabacker
as the members of the Compensation Committee of the Board, with Marcus Schabacker serving as the chair of such committee, and
(iii) George Kegler, Sol Mayer and Marcus Schabacker as the members of the Nominating and Governance Committee of the Board, with
Sol Mayer serving as the chair of such committee.
Each
director that is not an employee of the Company (each, a “Non-Employee Director”) will be paid an annual
compensation of $25,000. In addition, each Non-Employee Director will also be eligible for his or her service on Committees of
the Board of Directors in accordance with the following:
Position
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Annual Cash Compensation
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Chair of the Audit Committee
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$
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7,500
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Non-Chair Member of the Audit Committee
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$
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5,000
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Chair of the Nominating and Governance Committee
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$
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5,000
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Non-Chair Member of the Nominating and Governance Committee
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$
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3,000
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Chair of the Compensation Committee
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$
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5,000
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Non-Chair Member of the Compensation Committee
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$
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3,000
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Each
Non-Employee Director shall also be granted an equity award of $25,000 in the form of restricted stock, vesting one year after
he or she commences service as a director, provided he or she is still serving as a director on such vesting date. In addition,
each Non-Employee Director serving during the calendar year 2021 shall also be eligible to receive a one-time equity award of
$50,000 in the form of restricted stock, vesting one year after he or she commences service as a director, provided he or she
is still serving as a director on such vesting date, solely with respect to his or her service during the calendar year 2021.
Officer
Appointments
Effective
upon the completion of the Offer, the Board appointed the following individuals to the office or offices set forth opposite his
name below:
Name:
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Office:
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David
Johnson
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Chief
Executive Officer and Chairman of the Board
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Avani
Kanubaddi
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Chief
Operating Officer
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John
Van Buiten
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Chief
Financial Officer
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Robert
Wilkins
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Chief
Medical Officer
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Mr.
Johnson, 61, serves as Chairman and Chief Executive Officer of the Company. Mr. Johnson also has served on the board of directors
and as the Chief Executive Officer of Aquamed Technologies, Inc. since April 2019. Mr. Johnson formerly served on the board of
directors and as the President and Chief Executive Officer of Alliqua BioMedical, Inc. from November 2012 until April 2019. Mr.
Johnson was formerly President of the ConvaTec Division of Bristol-Myers Squibb, Inc. until 2008 when he orchestrated a sale of
the division from its pharmaceutical parent to Avista Capital Partners and Nordic Capital in a deal valued at $4.1 billion. Concurrently,
he acquired and integrated the assets of Copenhagen-based Unomedical to expand ConvaTec Inc.’s manufacturing and infrastructure
into Europe. From 2008 through 2012, Mr. Johnson served as the Chief Executive Officer of ConvaTec Inc. Prior to his tenure with
ConvaTec Inc., Mr. Johnson held several senior positions in the U.S., Europe and Canada with Zimmer Inc., Fisher Scientific, and
Baxter Corporation. He served as a member of ConvaTec Inc.’s board of directors and the board of the Advanced Medical Technology
Association (AdvaMed), where he chaired the Global Wound Sector Team for four years. Mr. Johnson received an Undergraduate Business
Degree in Marketing from the Northern Alberta Institute of Technology in Edmonton, Alberta, Canada, completed the INSEAD Advanced
Management Program in Fontainbleau, France, and is a fellow from the Wharton School of the University of Pennsylvania. Mr. Johnson’s
extensive experience in the pharmaceutical and biotechnology fields, as well as his executive leadership experience, make him
an asset that will serve as a bridge between the board of directors and our executive officers.
Mr.
Kanubaddi, 48, serves as Chief Operating Officer of the Company. Mr. Kanubaddi is an entrepreneur and business leader who has
a passion for health and healing. Mr. Kanubaddi is currently the Acting President & Chief Operating Officer of NEXGEL, Inc.
(September 2019 – Present), an FDA registered, ISO certified advanced hydrogel manufacturer serving the OTC, cosmetic and
medical device markets around the world. At NEXGEL, Mr. Kanubaddi led the rebranding, repositioning and overall strategy for the
company to accelerate growth and drive innovation. This included rebranding the company as NEXGEL, branding the company’s
unique hydrogels, developing a robust white label catalog, architecting an innovation engine to fill the pipeline with new concepts
and guiding the company’s first-ever branded product launches. In addition to NEXGEL, Mr. Kanubaddi also serves as the Senior
Partner at IQ/EQ Brand Strategy (August 2018 – present), where he assists companies in developing “go to market”
strategies, branding and naming exercises and new product innovation for consumer, medical device and prescription companies.
Prior to his consulting career, Mr. Kanubaddi was the Founder and Chief Executive Officer of Welmedix Healthcare (February 2007
– September 2019) to develop innovative skin and wound care solutions to improve health and healing with an eye towards
whole person wellness. During his tenure, he led the company to develop three unique brands with patented solutions, gaining distribution
in over 20,000 retail outlets, including Walmart, Walgreens, CVS and others. After building some of the fastest growing brands
in their respective categories, Welmedix sold its leading brands to a private-equity backed healthcare company. Before his entrepreneurial
venture, Mr. Kanubaddi began his 25+ year career in the healthcare industry at two leading companies – Wyeth Consumer Healthcare
(now GSK Consumer Health) and Bristol Myers Squibb’s ConvaTec Division. While working with market leading OTC brands like
Centrum, Advil and Chapstick; medical devices and hospital businesses including Aloe Vesta, DuoDerm and Sur-Fit Natura, Mr. Kanubaddi
held positions of increasing responsibility across the functional areas of brand management, sales, new product development and
new ventures. Mr. Kanubaddi holds an MBA from Columbia Business School and BS in Marketing from Miami University. Mr. Kanubaddi
also served on the Board of Directors for the Consumer Healthcare Products Association (CHPA), the leading industry trade group
for consumer healthcare in the United States.
Mr.
Van Buiten, 33, serves as Chief Financial Officer of the Company. Mr. Van Buiten has served as Chief Financial Officer of Jay
Pharma Inc. since December 17, 2018 and resigned on January 8, 2020. Mr. Van Buiten is an experienced finance executive with extensive
background in public company accounting and financial reporting. He currently serves as a manager at Financial Consulting Strategies,
LLC (“FCS”), preparing annual and quarterly SEC filings for clients in a wide range of industries and sizes. Mr. Van
Buiten has been employed by FCS since April 2010, and in addition to his position at Jay Pharma, he served as the Chief Financial
Officer of Tikkun under contract with FCS. He is a Certified Public Accountant.
Dr.
Wilkins, 66, serves as Chief Medical Officer of the Company. Since November 2017, Dr. Wilkins has provided consulting services
in areas such as market assessment, business plan development and implementation and clinical and regulatory planning and support
to healthcare and life sciences companies ranging from start-ups to Fortune 500 companies through QPS Consulting, LLC, which he
founded in November 2017. Dr. Wilkins formerly served as Vice President of Strategy at Battelle Memorial Institute from February
2012 to November 2017, in which capacity he was responsible for management of subsidiaries, spin-outs and venture-class investments.
As Vice President of Strategy, Dr. Wilkins oversaw the sale of Bluefin Robotics to General Dynamics and managed the divestiture
of several other Battelle Ventures portfolio companies. During his time at Battelle, Dr. Wilkins also served as a member of Battelle’s
Growth Council, the Battelle Ventures Advisory Board, the Board of Directors of Hepregen Corporation and the Board of Managers
of Armada Power LLC, and he was responsible for creating and leading Battelle’s Corporate Strategy team. From May 2006 until
its merger with MID Inc. in May 2011, Dr. Wilkins served as President and Chief Executive Officer of Endovalve Inc., where he
managed the product development process and significantly expanded the company’s intellectual property portfolio. Prior
to his tenure with Endovalve Inc., Dr. Wilkins served in senior positions with GlucoLight Corporation, Datascope Corp., Physiometrix
Inc., Baxter Healthcare, Abbott Laboratories, Vifor Pharma and TIL Medical Ltd. Dr. Wilkins received an MBChB from the University
of Manchester and received an FRCA in Anesthesiology from the Royal College of Anaesthetists. Dr. Wilkins’ extensive experience
in both product development and business strategy in the pharmaceutical and biotechnology fields will be invaluable to the Company’s
development.
Employment
Agreements
Prior
to the completion of the Offer, and in connection with the execution of that certain Amalgamation Agreement, dated January 10,
2020, by and among the Company (f/k/a Ameri), Jay Pharma, Jay Pharma Merger Sub, Inc., 1236567 B.C. Unlimited Liability Company
and Barry Kostiner, as the Ameri representative, which predates the Tender Agreement, Jay Pharma entered into an employment agreement
with Mr. Johnson, whereby Mr. Johnson would serve as the Chief Executive Officer and Chairman of the Company upon the completion
of the Offer (the “Johnson Employment Agreement”). In addition, prior
to the completion of the Offer, and to be contingent and effective upon the completion of the Offer, the Company entered into
executive employment agreements with Mr. Kanubaddi (the “Kanubaddi Employment Agreement”) and Dr.
Wilkins (the “Wilkins Employment Agreement”, and together with the Johnson Employment Agreement
and the Kanubaddi Employment Agreement, the “Executive Employment Agreements”). In addition, pursuant
to the Tender Agreement, on December 29, 2020, the Company entered into a consulting agreement with Barry Kostiner (the “Kostiner
Consulting Agreement”), to be effective upon the completion of the Offer.
Johnson
Employment Agreement
Pursuant
to the Johnson Employment Agreement, dated January 10, 2020, Mr. Johnson serves in the position of Chief Executive Officer
and Chairman of the Company following the completion of the Offer. Mr. Johnson is entitled to a base salary of $250,000
and an annual bonus in the amount of $100,000 (provided, however, that if Mr. Johnson’s position is changed such that he
no longer serves as Chief Executive Officer and only serves as Chairman of the Company, he will only be entitled to a base salary
of $100,000 beginning with the first day of the month following such change). Mr. Johnson is also eligible to receive annual performance
bonuses based on satisfaction of performance criteria/financial results, as determined by the board of directors of the Company
in its sole discretion. Within 30 days after the completion of the Offer, Mr. Johnson will be granted an award of restricted stock
units that represent, in the aggregate, 5% of the Company’s issued and outstanding common stock determined on a fully diluted
basis as of the date of grant. Mr. Johnson will also be eligible to receive additional equity awards, as determined by the Company
in its sole discretion.
Under
the terms of the Johnson Employment Agreement, Mr. Johnson’s employment may be terminated by either the Company or Mr. Johnson
at any time and for any reason with 30 days’ advance written notice. Upon termination of Mr. Johnson’s employment,
Mr. Johnson will receive (i) his fully earned but unpaid base salary through the date of termination, (ii) any accrued and unpaid
time off or similar pay to which Mr. Johnson is entitled as a matter of law or Company policy, (iii) any amounts due to Mr. Johnson
under the terms of the benefit plans, and (iv) any unreimbursed expenses properly incurred prior to the date of termination (the
“Johnson Accrued Obligations”).
If
the Company terminates Mr. Johnson’s employment for cause (as defined below) or Mr. Johnson resigns without good reason
(as defined below), the Company, at its sole discretion, may shorten the notice period and determine the date of termination without
any obligation to pay any additional compensation other than the Johnson Accrued Obligations and without triggering a termination
of Mr. Johnson’s employment without cause. If the Company terminates Mr. Johnson’s employment without cause or Mr.
Johnson resigns for good reason at any time, Mr. Johnson is entitled to the following severance payments and benefits: (i) his
full annual base salary less applicable deductions and withholdings; plus (ii) any earned but unpaid annual bonus and performance
bonus, if any, for the year of the termination.
The
Johnson Employment Agreement also contains certain standard non-solicitation, non-disparagement and confidentiality requirements
for Mr. Johnson.
Kanubaddi
Employment Agreement
Pursuant
to the Kanubaddi Employment Agreement, dated December 2, 2020, Mr. Kanubaddi serves in the position of Chief Operating
Officer of the Company following the completion of the Offer. Mr. Kanubaddi is entitled to a base salary of $295,000 and
a closing bonus in the amount of $60,000. Mr. Kanubaddi is also eligible to receive annual performance bonuses of up to 50% of
his base salary based on satisfaction of performance criteria/financial results, as determined by the board of directors of the
Company in its sole discretion. Within 30 days after the completion of the Offer, Mr. Kanubaddi will be granted an award of restricted
stock units that represent, in the aggregate, 3% of the Company’s issued and outstanding common stock determined on a fully
diluted basis as of the date of grant. Mr. Kanubaddi will also be eligible to receive additional equity awards, as determined
by the Company in its sole discretion.
Under
the terms of the Kanubaddi Employment Agreement, Mr. Kanubaddi’s employment may be terminated by either the Company or Mr.
Kanubaddi at any time and for any reason with 30 days’ advance written notice. Upon termination of Mr. Kanubaddi’s
employment, Mr. Kanubaddi will receive (i) his fully earned but unpaid base salary through the date of termination, (ii) any accrued
and unpaid time off or similar pay to which Mr. Kanubaddi is entitled as a matter of law or Company policy, (iii) any amounts
due to Mr. Kanubaddi under the terms of the benefit plans, and (iv) any unreimbursed expenses properly incurred prior to the date
of termination (the “Kanubaddi Accrued Obligations”).
If
the Company terminates Mr. Kanubaddi’s employment for cause (as defined below) or Mr. Kanubaddi resigns without good reason
(as defined below), the Company, at its sole discretion, may shorten the notice period and determine the date of termination without
any obligation to pay any additional compensation other than the Kanubaddi Accrued Obligations and without triggering a
termination of Mr. Kanubaddi’s employment without cause. If the Company terminates Mr. Kanubaddi’s employment without
cause or Mr. Kanubaddi resigns for good reason at any time, Mr. Kanubaddi is entitled to the following severance payments and
benefits: (i) his full annual base salary less applicable deductions and withholdings; plus (ii) any earned but unpaid performance
bonus, if any, for the year of the termination.
The
Kanubaddi Employment Agreement also contains certain standard non-solicitation, non-disparagement and confidentiality requirements
for Mr. Kanubaddi.
Wilkins
Employment Agreement
Pursuant
to the Wilkins Employment Agreement, dated December 22, 2020, Dr. Wilkins serves in the position of Chief Medical
Officer of the Company following the completion of the Offer. Dr. Wilkins is entitled to a base salary of $185,000.
Dr. Wilkins is also eligible to receive annual performance bonuses of up to 50% of his base salary based on satisfaction
of performance criteria/financial results, as determined by the board of directors of the Company in its sole discretion. Within
30 days after the completion of the Offer, Dr. Wilkins will be granted an award of restricted stock units that represent,
in the aggregate, 2% of the Company’s issued and outstanding common stock determined on a fully diluted basis as of the
date of grant. Dr. Wilkins will also be eligible to receive additional equity awards, as determined by the Company in its
sole discretion.
Under
the terms of the Wilkins Employment Agreement, Dr. Wilkins’s employment may be terminated by either the Company or
Dr. Wilkins at any time and for any reason with 30 days’ advance written notice. Upon termination of Mr. Kanubaddi’s
employment, Mr. Kanubaddi will receive (i) his fully earned but unpaid base salary through the date of termination, (ii) any amounts
due to Dr. Wilkins under the terms of the benefit plans, and (iv) any unreimbursed expenses properly incurred prior to
the date of termination (the “Wilkins Accrued Obligations”).
If
the Company terminates Dr. Wilkins’s employment for any reason, the Company, at its sole discretion, may shorten
the notice period and determine the date of termination without any obligation to pay any additional compensation other than the
Wilkins Accrued Obligations.
The
Wilkins Employment Agreement also contains certain standard non-solicitation, non-disparagement and confidentiality requirements
for Dr. Wilkins.
For
purposes of the Executive Employment Agreements:
“Cause”
shall mean a termination of employment because of (i) the executive’s failure or refusal to perform the duties of the executive’s
position in a manner causing material detriment to the Company; (ii) the executive’s willful misconduct with regard to the
Company or its business, assets or executives (including, without limitation, his fraud, embezzlement, intentional misrepresentation,
misappropriation, conversion or other act of dishonesty with regard to the Company; (iii) the executive’s commission of
an act or acts constituting a felony or any crime involving fraud or dishonesty as determined in good faith by the Company; (iv)
the executive’s breach of a fiduciary duty owed to the Company; (v) any material breach of the employment agreement or any
other agreement with the Company; or (vi) any injury, illness or incapacity which shall wholly or continuously disable the executive
from performing the essential functions of the executive’s position for any successive or intermittent period of at least
12 months.
“Good
reason” shall mean a termination of employment because of: (i) a materially adverse diminution in the execution’s
role or responsibilities without the executive’s consent, provided that the parties to the employment agreement agree that
it shall not be considered a diminution in the executive’s role or responsibilities if he ceases serving as Chief Executive
Officer provided he remains Chairman; or (ii) any material breach of the employment agreement by the Company or any other agreement
with the executive.
Kostiner
Consulting Agreement
Pursuant
to the Kostiner Consulting Agreement, dated December 29, 2020, Mr. Kostiner will serve as a consultant to the Company following
the completion of the Offer for a period of 12 months following the closing of the Offer. Mr. Kostiner will be entitled to a total
compensation of $120,000 (the “Fee”) under the Kostiner Consulting Agreement, payable in monthly installments
of $10,000.
Under
the terms of the Kostiner Consulting Agreement, Mr. Kostiner’s consulting services may be terminated by either the Company
or Mr. Kostiner at any time and for any reason. In the event that either Mr. Kostiner or the Company terminates the Kostiner Consulting
Agreement prior to the end of the term thereof, the Company will continue to make monthly payments of $10,000 to Mr. Kostiner
until the full amount of the Fee has been paid.
The
Kostiner Consulting Agreement also contains certain standard non-solicitation, non-disparagement and confidentiality requirements
for Mr. Kostiner.
The
foregoing descriptions of the Executive Employment Agreements does not purport to be complete and is qualified entirely by reference
to the full text of the Executive Employment Agreements, with the Johnson Employment Agreement, the Kanubaddi Employment Agreement,
the Wilkins Employment Agreement and the Kostiner Consulting Agreement attached hereto as Exhibits 10.1, 10.2, 10.3 and 10.4,
respectively, which in each case is incorporated by reference herein.
Adoption
of Benefit Plan
Pursuant
to the Tender Agreement, effective as of the effective time of the Offer, the Company adopted the Enveric Biosciences, Inc. 2020
Long-Term Incentive Plan (the “2020 Plan”).
The
2020 Plan provides for the granting of incentive stock options, nonqualified stock options, stock appreciation rights, restricted
stock, restricted stock units, performance awards, dividend equivalent rights and other awards which may be granted singly, in
combination or in tandem, and which may be paid in shares of Common Stock. At the effective time of the Offer, the number of shares
of Common Stock that are reserved for issuance pursuant to awards under the 2020 Plan is 2,695,893 shares (post-Reverse Stock
Split).
The
2020 Plan will terminate on December 30, 2030, the tenth anniversary of its effective date. No award may be made under the 2020
Plan after its expiration date.
The
foregoing description of the 2020 Plan does not purport to be complete and is qualified entirely by reference to the full text
of the 2020 Plan, which is attached hereto as Exhibit 10.5 and is incorporated by reference herein.
In
connection with the 2020 Plan, the Board adopted a form of Restricted Stock Unit Award Agreement, which is attached hereto as
Exhibit 10.6 and is incorporated by reference herein. Restricted stock units granted to participants pursuant to the Restricted
Stock Unit Award Agreement may be converted into the number of shares of Common Stock equal to the number of restricted stock
units, with each restricted stock unit to represent a notional share of Common Stock, with a value equal to the fair market value
of a share of Common Stock at any time.
Item
5.03.
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Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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Charter
Amendments
The
information set forth in Item 3.03 under the headings “Reverse Stock Split” and “Series B Preferred Stock
Certificate of Designations” are incorporated by reference herein.
Amended
and Restated Certificate of Incorporation
In
connection with the Tender Agreement, the Company agreed to seek the approval of its stockholders to amend and restate the Company’s
Certificate of Incorporation (the “A&R Charter”). The Company obtained stockholder approval of the
A&R Charter and, on December 30, 2020, filed the A&R Charter with the Secretary of State of the State of Delaware.
The
key amendments included in the A&R Charter are as follows:
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●
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the
name of the Company is changed to “Enveric Biosciences, Inc.”;
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●
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the
change in the number of authorized shares to 120,000,000, consisting of 100,000,000 shares of Common Stock and 20,000,000
shares of preferred stock;
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●
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any
amendment of clauses addressing indemnification of directors and officers does not eliminate or reduce the effect of the indemnification
in respect of any matter occurring, or any proceeding accruing or arising or that, but for the indemnification provisions,
would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision;
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●
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removal
of certain provisions under Article IV providing for a previously effectuated stock split which has already been effectuated;
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simplification
and consolidation of various clauses, which substantially provide the same rights, procedures, policies and restrictions regarding,
among other things, meetings of stockholders, stockholder voting rights, prohibition on cumulative voting, and powers granted
to the board of directors.
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The
foregoing description of the A&R Charter does not purport to be complete and is qualified entirely by reference to the full
text of the A&R Charter, which is attached hereto as Exhibit 3.1 and is incorporated by reference herein.
Amended
and Restated Bylaws
Pursuant
to the Tender Agreement, effective as of the effective time of the Offer, the Company adopted amended and restated bylaws (the
“Amended and Restated Bylaws”).
Advance
Notice of Stockholder Business
The
Amended and Restated Bylaws have revised advance notice procedures for stockholders. Pursuant to the Amended and Restated Bylaws,
only such business shall be conducted as shall have been properly brought before the annual meeting of Company stockholders. To
be properly brought before an annual meeting, business must be brought: (A) pursuant to the Company’s proxy materials with
respect to such meeting, (B) by or at the direction of the Board, or (C) by a stockholder of the Company who (1) is a stockholder
of record at the time of the giving of the notice and on the record date for the determination of stockholders entitled to vote
at the annual meeting and (2) has timely complied in proper written form with the notice procedures set forth in the Amended and
Restated Bylaws. In addition, for business to be properly brought before an annual meeting by a stockholder, such business must
be a proper matter for stockholder action pursuant to the Amended and Restated Bylaws and applicable law. Except for proposals
properly made in accordance with Rule 14a-8 under the Securities and Exchange Act of 1934, and the rules and regulations thereunder
(as so amended and inclusive of such rules and regulations, the “Exchange Act”), clause (C) above shall
be the exclusive means for a stockholder to bring business before an annual meeting of stockholders.
A
stockholder’s notice must set forth all information required under Section 2.4(i) of the Amended and Restated Bylaws and
must be timely received by the secretary of the Company. To be timely, a stockholder’s notice must be received by the secretary
at the principal executive offices of the Company not later than the 45th day nor earlier than the 75th day before the one-year
anniversary of the date on which the Company first mailed its proxy materials or a notice of availability of proxy materials (whichever
is earlier) for the preceding year’s annual meeting; provided, however, that in the event that no annual meeting was held
in the previous year or if the date of the annual meeting is advanced by more than 30 days prior to or delayed by more than 60
days after the one-year anniversary of the date of the previous year’s annual meeting, then, for notice by the stockholder
to be timely, it must be so received by the secretary not earlier than the close of business on the 120th day prior to such annual
meeting and not later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth
day following the day on which Public Announcement (which is a disclosure in a press release reported by the Dow Jones News Service,
Associated Press or a comparable national news service or in a document publicly filed by the Corporation with the SEC pursuant
to Section 13, 14 or 15(d) of the Exchange Act) of the date of such annual meeting is first made. In no event shall any adjournment
or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s
notice.
To
be in proper written form, a stockholder’s notice to the secretary must set forth as to each matter of business the stockholder
intends to bring before the annual meeting: (1) a brief description of the business intended to be brought before the annual meeting,
the text of the proposed business (including the text of any resolutions proposed for consideration) and the reasons for conducting
such business at the annual meeting, (2) the name and address, as they appear on the Company’s books, of the stockholder
proposing such business, (3) the class and number of shares of the Company that are held of record or are beneficially owned by
the stockholder and any derivative positions held or beneficially held by the stockholder as of the date of delivery of such notice,
(4) whether and the extent to which any hedging or other transaction or series of transactions has been entered into by or on
behalf of such stockholder with respect to any securities of the Company, and a description of any other agreement, arrangement
or understanding (including any short position or any borrowing or lending of shares), the effect or intent of which is to mitigate
loss to, or to manage the risk or benefit from share price changes for, or to increase or decrease the voting power of, such stockholder
with respect to any securities of the Company, (5) any material interest of the stockholder in such business, and (6) a statement
whether either such stockholder will deliver a proxy statement and form of proxy to holders of at least the percentage of the
voting power of the Company’s voting shares required under applicable law to carry the proposal (such information provided
and statements made as required by clauses (1) through (6), a “Business Solicitation Statement”). In addition, to
be in proper written form, a stockholder’s notice to the secretary must be supplemented not later than ten days following
the record date for notice of the meeting to disclose the information contained in clauses (3) and (4) above as of the record
date for notice of the meeting.
Advance
Notice of Director Nominations at Annual Meetings
Nominations
of persons for election or re-election to the Board shall be made at an annual meeting of stockholders only (A) by or at the direction
of the Board or (B) by a stockholder of the Company who (1) was a stockholder of record at the time of the giving of the notice
required and on the record date for the determination of stockholders entitled to vote at the annual meeting and (2) has complied
with the notice procedures. In addition to any other applicable requirements, for a nomination to be made by a stockholder, the
stockholder must have given timely notice thereof in proper written form to the secretary of the Company.
To
comply with clause (B) of the above, a nomination to be made by a stockholder must set forth all information required and must
be received by the secretary of the Company at the principal executive offices of the Company at the time set forth in, and in
accordance with, the final three sentences of Section 2.4(i)(a) in the Amended and Restated Bylaws; provided additionally, however,
that in the event the number of directors to be elected to the board of directors is increased and there is no Public Announcement
naming all of the nominees for director or specifying the size of the increased board made by the Company at least ten (10) days
before the last day a stockholder may deliver notice of nomination pursuant to the foregoing provisions, a stockholder’s
notice shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it
shall be received by the secretary at the principal executive offices of the Company not later than the close of business on the
tenth day following the date on which such Public Announcement is first made by the Company.
Advance
Notice of Director Nominations for Special Meetings
If
the Board has authorized in the specific case that stockholders may fill a vacancy or newly created directorship at a special
meeting of stockholders, and a special meeting has been properly called for such purpose, nominations of persons for election
or appointment to the Board at such special meeting shall be made only (1) by or at the direction of the Board or (2) by any stockholder
of the Company who (A) is a stockholder of record at the time of the giving of the notice and on the record date for the determination
of stockholders entitled to vote at the special meeting and (B) delivers a timely written notice of the nomination to the secretary
of the Company. To be timely, such notice must be received by the secretary at the principal executive offices of the Company
not later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following the
day on which Public Announcement is first made of the date of the special meeting and of the nominees proposed by the board of
directors to be elected or appointed at such meeting.
The
foregoing description of the Amended and Restated Bylaws does not purport to be complete and is qualified entirely by reference
to the full text of the Amended and Restated Bylaws, which is attached hereto as Exhibit 3.4 and is incorporated by reference
herein.