UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
(Amendment No. )
Filed by the Registrant ☐
Filed by a Party other than the Registrant ☒
Check the appropriate box:
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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 Proxy Statement |
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Definitive Additional
Materials |
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Soliciting Material Under Rule
14a-12 |
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TITAN PHARMACEUTICALS,
INC.
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(Name of Registrant as Specified in Its Charter) |
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Activist Investing
LLC
David E. Lazar
Avraham Ben-Tzvi
Peter L. Chasey
Eric Greenberg
Matthew C.
McMurdo
David Natan
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(Name of Persons(s) Filing Proxy Statement, if other than the
Registrant) |
Payment of Filing Fee (Check the appropriate box):
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Fee paid previously with
preliminary materials |
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Fee computed on table in exhibit
required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and
0-11 |
PRELIMINARY COPY SUBJECT TO
COMPLETION
DATED JULY 14, 2022
SPECIAL MEETING OF
STOCKHOLDERS
OF
TITAN PHARMACEUTICALS,
INC.
_________________________
PROXY
STATEMENT
OF
ACTIVIST INVESTING
LLC
_________________________
PLEASE SIGN, DATE AND MAIL THE ENCLOSED WHITE PROXY CARD
TODAY
Activist Investing LLC (“Activist Investing”) and David E. Lazar
(collectively, “Activist” or “we”), are significant stockholders of
Titan Pharmaceuticals, Inc., a Delaware corporation (“TTNP”,
“Titan” or the “Company”), who, together with the other
participants in this solicitation, beneficially own in the
aggregate approximately 25.2% of the outstanding shares of common
stock, par value $0.001 per share (the “Common Stock”), of the
Company.
Activist,
a stockholder owning twenty-five percent (25%) in amount of the
entire capital stock of the Company issued and outstanding and
entitled to vote has validly requested a special meeting of Titan
stockholders (the “Special Meeting”) under the Delaware General
Corporation Law (the “DGCL”) and the Company’s Bylaws, as amended
(the “Bylaws”) in order for Activist to present the proposals set
forth herein (the “Proposals”), the ultimate effect of which is to
increase the size of the Company’s Board of Directors (the “Board”)
by six (6) directors and fill the resulting six (6) vacancies on
the Board with Activist’s nominees named below. We are furnishing
this proxy statement (“Proxy Statement”) and accompanying
WHITE proxy card to holders of Common Stock in connection
with the solicitation of proxies at the Special Meeting scheduled
to be held virtually on Monday, August 15, 2022 at 9:00 a.m.
Pacific Time.
The Company has announced that it would not object to the
presentation of the Proposals at the Special Meeting and that it
would not be contesting Activist’s solicitation nor soliciting
proxies in connection with the Special Meeting. We are seeking to
expand the Board and fill the resulting vacancies with our six (6)
highly qualified director candidates because we firmly believe that
our nominees collectively possess the requisite skillsets,
experience, drive and sense of accountability needed to lead the
Company’s previously announced strategic review of alternatives to
maximize value for the Company’s stockholders.
Accordingly, we are soliciting your proxy for the Special Meeting
to vote in favor of the following proposals:
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1. |
To
increase the size of the Board by six (6) members, so that the
Board will be constituted by eleven (11) members in total
(“Proposal 1” or the “Board Expansion Proposal”); and
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2. |
Subject
to Proposal 1 being approved, to elect Avraham Ben-Tzvi, Peter L.
Chasey, Eric Greenberg, David E. Lazar, Matthew C. McMurdo and
David Natan (each, a “Nominee” and, collectively, the “Nominees”)
to the Board of Directors to serve until the Company’s 2022 annual
meeting of stockholders (the “2022 Annual Meeting”) and until their
successors are elected and are qualified (“Proposal 2” or the
“Election Proposal”).
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The Special Meeting will be held virtually via live webcast. You
will not be able to attend the Special Meeting in person at a
physical location. You are entitled to participate in the Special
Meeting if you are a stockholder of record as of the close of
business on the Record Date or hold a legal proxy for the meeting
provided by your broker, bank or other nominee. You may attend the
Special Meeting virtually by visiting the following web address
https://www.cstproxy.com/titanpharm/sm2022. Please see the section
titled “Virtual Meeting” for additional information.
As of the date hereof, the members of Activist, including the
Nominees, beneficially owned in the aggregate 3,690,468 shares (the
“Activist Group Shares”) of Common Stock. We intend to vote the
Activist Group Shares in favor of each of the Proposals at the
Special Meeting.
The Company has announced the close of business on July 22, 2022 as
the record date for determining stockholders entitled to notice of
and to vote at the Special Meeting (the “Record Date”). The mailing
address of the principal executive offices of the Company is 400
Oyster Point Boulevard, Suite 505, South San Francisco, CA 94080.
Stockholders of record at the close of business on the Record Date
will be entitled to vote at the Special Meeting. According to the
Company, as of the Record Date, there were 14,629,217 shares of
Common Stock outstanding.
We
are seeking your support at the Special Meeting and asking
stockholders to vote “FOR” the Board Expansion Proposal and
“FOR ALL NOMINEES” with respect to the Election Proposal
using one of the voting methods set forth below.
The date of this Proxy Statement is __________, 2022. This Proxy
Statement and the accompanying WHITE Proxy Cards are first
being sent or given to stockholders on or about ___________,
2022.
If
you hold your shares through a bank, broker or other nominee and
you do not intend to vote in person virtually at the Special
Meeting, only such nominee can vote your shares, and only after
receiving specific voting instructions from you. As a beneficial
owner, you must instruct your broker, trustee or other
representative how to vote. Your broker cannot vote your shares on
your behalf without your instructions. Please contact your bank,
broker or nominee and instruct them to vote a WHITE Proxy
Card “FOR” the Board Expansion Proposal and “FOR ALL
NOMINEES” with respect to the Election Proposal
thereon.
If Activist receives WHITE Proxy Cards that have no explicit
voting instructions, Activist intends to vote such proxies in favor
of each of the Proposals thereon.
Pursuant
to the WHITE proxy cards, we are requesting authority (i) to
vote in favor of each of the Proposals, and (ii) to oppose and vote
against any other proposals that may come before the Special
Meeting.
THIS SOLICITATION IS BEING MADE BY ACTIVIST AND NOT ON BEHALF OF
THE BOARD OF DIRECTORS OR MANAGEMENT OF THE COMPANY. WE ARE NOT
AWARE OF ANY OTHER MATTERS TO BE BROUGHT BEFORE THE SPECIAL MEETING
OTHER THAN AS SET FORTH IN THIS PROXY STATEMENT. SHOULD OTHER
MATTERS, WHICH ACTIVIST IS NOT AWARE OF A REASONABLE TIME BEFORE
THIS SOLICITATION, BE BROUGHT BEFORE THE SPECIAL MEETING, THE
PERSONS NAMED AS PROXIES IN THE ENCLOSED WHITE PROXY CARD
WILL VOTE ON SUCH MATTERS IN OUR DISCRETION.
ACTIVIST URGES YOU TO SIGN, DATE AND RETURN THE WHITE PROXY
CARD IN FAVOR OF THE ELECTION OF THE NOMINEES.
QUESTIONS AND ANSWERS REGARDING THE SPECIAL MEETING
The following are answers to some of the questions you, as a Titan
stockholder, may have with respect to Activist’s solicitation of
revocable proxies for the Special Meeting. The following is not a
substitute for the information contained in this Proxy Statement,
and the information contained below is qualified in its entirety by
reference to the more detailed descriptions and explanations
contained elsewhere in this Proxy Statement. We urge you to read
this Proxy Statement carefully and in its entirety.
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Q: |
Who is making the solicitation
of revocable proxies for the Special Meeting? |
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A: |
The solicitation is being made by
Activist. Please see the section titled “Additional Participant
Information” in this Proxy Statement below for additional
information regarding the participants in the solicitation under
SEC rules. |
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Q: |
How many shares of Common Stock
does Activist own? |
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A: |
The members of Activist, including
the Nominees, beneficially own in the aggregate 3,690,468 shares of
Common Stock, representing approximately 25.2% of the Company’s
outstanding shares. |
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Q: |
What are we asking you to
do? |
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A: |
We are asking you to vote
“FOR” the Board Expansion Proposal and “FOR ALL
NOMINEES” with respect to the Election Proposal outlined above
at the Special Meeting for purposes of seeking to increase the size
of the Board by six (6) members and to fill the resulting six (6)
vacancies with our Nominees. Please see the additional details
concerning the Board Expansion Proposal, the Election Proposal and
our Nominees in the remainder of this Proxy Statement. |
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Q: |
Why are we soliciting your vote
on the Proposals? |
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A: |
We believe that our Nominees
collectively possess the requisite expertise, experience and sense
of accountability needed to lead the Company’s previously announced
strategic review of alternatives to maximize stockholder value.
Accordingly, we are soliciting Titan stockholders to consider and
vote on the Board Expansion Proposal to increase the size of the
Board by six (6) members, so that the Board will be constituted by
eleven (11) members in total, and on the Election Proposal to elect
our six (6) Nominees to fill the resulting vacancies. |
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Q: |
Is the purpose of the Special
Meeting for us to advocate for a particular transaction, or any
transaction at all? |
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A: |
No. We are not currently advocating
for any one particular transaction, or any transaction at all, but
we firmly believe that electing the Nominees to the Board would
best represent the interests of all stockholders as it relates to
the ongoing business and any potential transaction opportunities in
the future. If elected, our Nominees, with the full and unfettered
access to the books and records of the Company, are committed to
continuing the Company’s previously announced review of strategic
alternatives to maximize value for the Company’s stockholders. |
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Q: |
When and where is the Special
Meeting to be held? |
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A: |
The Special Meeting is scheduled to
be held virtually on Monday, August 15, 2022 at 9:00 a.m. Pacific
Time. |
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Q: |
What effect might passage of the
Proposals at the Special Meeting and/or the election of any
Nominees have under the change in control provisions of the
Company’s publicly filed agreements? |
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A: |
If Activist succeeds in obtaining
stockholder approval for the election of five (5) or more of the
Nominees at the Special Meeting, then a change of control of the
Board may be deemed to have occurred under the Company’s Third
Amended and Restated 2015 Omnibus Incentive Plan, which may trigger
accelerated vesting of the outstanding equity awards at the
discretion of the Compensation Committee of the Board. |
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Q: |
Who can vote at the Special
Meeting? |
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A: |
Only holders of record at the close
of business on the Record Date will be entitled to vote in person
or by proxy at the virtual Special Meeting. |
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Q: |
What will constitute a quorum at
the Special Meeting? |
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A: |
The presence, in person virtually
or by proxy, of the holders of record of thirty-four percent (34%)
of the shares then issued and outstanding and entitled to vote at
the Special Meeting shall constitute a quorum at the Special
Meeting. |
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Q: |
How many shares must be voted in
favor of Proposal 1 (Board Expansion Proposal) to approve it and
each Nominee to elect him pursuant to Proposal 2 (Election
Proposal) at the Special Meeting? |
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A: |
Proposal
1, the Board Expansion Proposal, requires the approval of the
holders of a majority of the Common Stock having voting power
present in person or represented by proxy. Proposal 2, the Election
Proposal, which is contingent upon the passage of Proposal 1,
requires the approval of a plurality of the votes cast at the
Special Meeting, assuming a quorum is present (in which shares
voting affirmatively also constitute at least a majority of the
required quorum).
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Q: |
How may Titan stockholders vote
their shares? |
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A: |
See the section titled “Voting and
Proxy Procedures” in this Proxy Statement below for the four ways
Titan stockholders may vote at the Special Meeting: by promptly
mailing in the WHITE Proxy Card, by telephone, via the
Internet and by attending the virtual Special Meeting and voting in
person virtually. |
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Q: |
How will my shares be voted if
the enclosed WHITE Proxy Card is signed and returned but no
specific voting direction is given? |
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A: |
If you are a holder of record of
shares of Common Stock and properly sign and return the enclosed
WHITE Proxy Card, but do not specify how to vote, Activist
intends to vote such proxies “FOR” the Board Expansion
Proposal and “FOR ALL NOMINEES” on the Election
Proposal. |
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Q: |
If my shares of Common Stock are
held in “street name” by my broker or other nominee, will my broker
or other nominee vote my shares with respect to any of the
Proposals? |
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A: |
No, your broker or other nominee
will not vote your shares of Common Stock on your behalf on any of
the Proposals unless you provide instructions on how to vote. |
Without your instructions, your street name shares will not be
voted in favor of the Proposals, which will have the same effect as
voting “AGAINST” each of the Proposals. Accordingly, it is critical
that you promptly give instructions to your broker or other nominee
to vote on the Proposals.
Activist urges you to confirm in writing your instructions to your
broker or other nominee as soon as possible and provide a copy of
those instructions to Activist c/o InvestorCom LLC, our proxy
solicitor (“InvestorCom”), at 19 Old Kings Highway S., Suite 130,
Darien, Connecticut 06820, so that Activist will be aware of all
instructions given and can attempt to ensure that those
instructions are followed.
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Q: |
What effect will an abstention
have on the vote on the Proposals? |
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A: |
Abstentions will have no effect on
the vote on each of the Proposals. |
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Q: |
How may WHITE Proxy Cards be
revoked? |
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A: |
Company stockholders who execute
and deliver WHITE Proxy Cards solicited on behalf of
Activist in connection with the Proposals at the Special Meeting
will be permitted to revoke such proxies at any time before the
proxy is exercised at the Special Meeting by: |
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delivering an instrument revoking
the earlier proxy card, or a duly executed later-dated proxy card
for the same shares, including a Company-furnished proxy card, to
InvestorCom at 19 Old Kings Highway S., Suite 130, Darien, CT
06820; |
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filing with the Company’s Corporate
Secretary prior to the Special Meeting either a notice of
revocation or a duly executed later dated proxy for the same
shares, including a Company-furnished proxy card; |
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if you have voted by telephone or
through the Internet, calling the same toll-free number or by
accessing the same web site and following the instructions provided
on the WHITE Proxy Card; or |
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voting in person virtually at the
Special Meeting. |
Please note that if your shares of Common Stock are held in street
name by a broker or other nominee, you must follow the instructions
set forth in the instruction cards to revoke your earlier vote.
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Q: |
Who is paying for the
solicitation of proxies for the Special Meeting? |
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A: |
The entire expense of preparing and
mailing this Proxy Statement and any other soliciting material and
the total expenditures relating to the solicitation of proxies for
approval of the Proposals at the Special Meeting will be borne by
Activist. Activist intends to seek reimbursement from the Company
for such expenses if the Proposals are approved at the Special
Meeting. |
IMPORTANT
Your
vote is important, no matter how few shares of Common Stock you
own. Activist urges you to sign, date, and return the enclosed
WHITE proxy card today to vote “FOR” the Board Expansion Proposal
and “FOR ALL NOMINEES” with respect to the Election
Proposal.
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If your shares of Common Stock are
registered in your own name, please sign and date the enclosed
WHITE proxy card and return it to Activist, c/o InvestorCom
in the enclosed postage-paid envelope today. |
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If your shares of Common Stock are
held in a brokerage account or bank, you are considered the
beneficial owner of the shares of Common Stock, and these proxy
materials, together with a WHITE voting form, are being
forwarded to you by your broker or bank. As a beneficial owner, you
must instruct your broker, trustee or other representative how to
vote. Your broker cannot vote your shares of Common Stock on your
behalf without your instructions. As a beneficial owner, you may
vote the shares in person virtually at the Special Meeting only if
you obtain a legal proxy from the broker or bank giving you the
right to vote the shares. |
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Depending upon your broker or
custodian, you may be able to vote either by toll-free telephone or
by the Internet. Please refer to the enclosed voting form for
instructions on how to vote electronically. You may also vote by
signing, dating and returning the enclosed voting form. |
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You may vote your shares virtually
at the Special Meeting. Even if you plan to attend the Special
Meeting, we recommend that you vote by telephone or the internet by
the applicable deadline so that your vote will be counted if you
later decide not to attend the Special Meeting. |
19 Old Kings Highway S. – Suite 130
Darien, Connecticut 06820
Toll Free (877) 972-0090
Banks and Brokers call collect (203) 972-9300
info@investor-com.com
BACKGROUND TO THE SOLICITATION
The following is a chronology of material events leading up to this
proxy solicitation:
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On December 21, 2022, the Company
issued a press release announcing that it had commenced a process
to explore and evaluate strategic alternatives to enhance
stockholder value, which might include an acquisition, merger,
reverse merger, other business combination, sales of assets,
licensing or other strategic transactions involving the
Company. |
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On April 25, 2022, Activist filed a
Schedule 13D with the Securities and Exchange Commission (the
“SEC”) disclosing a 5.6% ownership position in the Company. |
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Between May 2022 and June 2022,
representatives of Activist and representatives of the Company held
several calls concerning the Company’s previously announced review
of strategic alternatives, and the Company’s progress with respect
to such strategic review to date. |
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On
June 2, 2022, the Company filed a Current Report on Form 8-K with
the SEC disclosing, among other things, that the Board implemented
a plan to reduce expenses and conserve capital, including a
company-wide reduction in salaries and a scale back of certain
operating expenses, in order to enable the Company to maintain
sufficient resources as it works with its advisors on potential
strategic alternatives for maximizing stockholder value.
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On
July 5, 2022, the Company filed a Current Report on Form 8-K with
the SEC disclosing, among other things, that the Board amended the
Bylaws to effect certain enhancements to the ability of
stockholders to call for a special meeting of stockholders and make
changes to the composition of the Board.
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On July 8, 2022, Activist Investing
delivered a letter to the Company (the “Special Meeting Request
Letter”), in accordance with the Bylaws, to (i) provide notice to
the Company of its intent to present the Proposals at the Special
Meeting, (ii) call on the Board to announce that it has fixed the
record date for the Special Meeting as July 22, 2022, and that the
Special Meeting is to be held on August 2, 2022 and (iii) nominate
Avraham Ben-Tzvi, Peter L. Chasey, Eric Greenberg, David E. Lazar,
Matthew C. McMurdo and David Natan as directors for election to the
Board at the Special Meeting. |
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On July 8, 2022, Activist filed an
amendment to its Schedule 13D with the SEC disclosing, among other
things, (i) a 25.2% ownership position in the Company and (ii) the
delivery of the Special Meeting Request Letter. |
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On July 11, 2022, the Company filed
a Current Report on Form 8-K with the SEC disclosing, among other
things, that the Board received and met to consider the Special
Meeting Request Letter and the Proposals and determined that it
would not object to the presentation of the Proposals at the
Special Meeting and that Titan would not be contesting Activist’s
solicitation or soliciting proxies in connection with the Special
Meeting. In addition, the Board stated that the record date
established for the Special Meeting was July 22, 2022 with the
Special Meeting to be held on August 2, 2022. |
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On July 12, 2022, counsel for
Activist delivered a letter to counsel for the Company calling for
the Special Meeting be rescheduled to August 15, 2022 in a virtual
meeting format to enable Activist more time to solicit proxies in
favor of the Proposals. |
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On July 14, 2022, Activist filed
this preliminary proxy statement with the SEC. |
PROPOSAL NO. 1
BOARD EXPANSION PROPOSAL
The Board is currently composed of five (5) members. Stockholders
are being asked to increase the size of the Board by six (6)
members, so that the Board will be constituted by eleven (11)
members in total. The text of Activist’s proposal to increase the
size of the Board by six (6) members is as follows:
“RESOLVED, that the size of the Board shall be increased by
six (6) members and will be constituted by eleven (11) members in
total.”
The Board Expansion Proposal is a necessary procedural step to
allow stockholders to vote on the Election Proposal.
As discussed elsewhere in this Proxy Statement, we support the
election of all six (6) Nominees at the Special Meeting The
election of the Nominees at the Special Meeting requires the
concurrent approval by stockholders of the Board Expansion
Proposal. To that end, we are soliciting your proxy to vote
FOR the Board Expansion Proposal at the Special Meeting.
WE URGE YOU TO VOTE “FOR” THIS PROPOSAL ON THE ENCLOSED WHITE
PROXY CARD
PROPOSAL NO. 2
ELECTION PROPOSAL
The Board is currently composed of five (5) directors, each with a
term expiring at the 2022 Annual Meeting; however, effective upon
stockholder approval of the Board Expansion Proposal, the size of
the Board will be increased to eleven (11) directors, resulting in
six (6) vacancies on the Board. Activist has nominated six (6)
independent, highly-qualified Nominees for election to the Board to
fill the six (6) vacancies which would result from stockholder
approval of the Board Expansion Proposal.
THE NOMINEES
The following information sets forth the name, age, business
address, present principal occupation, and employment and material
occupations, positions, offices, or employments for the past five
years of each of the Nominees. The nominations were made in a
timely manner and in compliance with the applicable provisions of
the Company’s governing instruments. The specific experience,
qualifications, attributes and skills that led us to conclude that
the Nominees should serve as directors of the Company are set forth
below. This information has been furnished to us by the
Nominees.
Avraham Ben-Tzvi, Adv., age 51, is the Founder of ABZ Law
Office, a boutique Israeli law firm specializing in outsourced
general counsel services for publicly traded as well as private
companies and corporations, Investments & Securities Laws,
Commercial Law & Contracts and various civil law matters, which
he established in January 2017. Mr. Ben-Tzvi served as Chief Legal
Officer and General Counsel of Purple Biotech Ltd. (formerly Kitov
Pharma Ltd.) (NASDAQ/TASE: PPBT), a clinical-stage company
advancing first-in-class therapies to overcome tumor immune evasion
and drug resistance, from November 2015 until April 2020. Prior to
that, Mr. Ben-Tzvi served as General Counsel and secretary at
Medigus Ltd. (NASDAQ/TASE: MDGS), a minimally invasive endosurgical
tools medical device and miniaturized imaging equipment company,
from April 2014 until November 2015. Mr. Ben-Tzvi is a member of
the Israel Bar Association, and is also licensed as a Notary by the
Israeli Ministry of Justice. Prior to that he served as an attorney
at one of Israel’s leading international law firms where, amongst
other corporate and commercial work, he advised companies and
underwriters on various offerings by Israeli companies listing in
US and on various SEC related filings. Prior to becoming a lawyer,
Mr. Ben-Tzvi worked in a number of business development, corporate
finance and banking roles at companies in the financial services,
lithium battery manufacturing and software development industries.
Mr. Ben-Tzvi holds a B.A., magna cum laude, in Economics from
Yeshiva University in New York and an LLB, magna cum laude with
Honors, in from Sha'arei Mishpat College of Law in Hod HaSharon,
Israel.
Activist believes that Mr. Ben-Tzvi’s extensive legal experience
and knowledge in the field of civil-commercial law, and in
corporate and securities law, and his previous public company and
commercial business experience will make him a valuable addition to
the Board.
Peter L. Chasey, Esq., age 49, currently serves as the Owner
of Chasey Law Offices, a law practice specializing in personal
litigation, business litigation and commercial law, since founding
the practice in 2005. Earlier in his career, Mr. Chasey served as
staff counsel for one of the largest insurance companies in the
world defending general claims against insured businesses and also
served as a land surveyor. Mr. Chasey holds a B.S. in Political
Science and Government from the University of San Diego and a J.D.
from the University of San Diego School of Law.
Activist believes that Mr. Chasey’s commercial law expertise,
coupled with his experience leading his own law firm, will make him
a valuable addition to the Board.
Eric Greenberg, age 58, has over 40 years of capital markets
experience. As a trader and portfolio manager at hedge funds, his
areas of expertise included the development of trading strategies,
portfolio management and deal structuring. Mr. Greenberg was
Co-Founder of Blink Charging Co. (NASDAQ: BLNK), a leader in the EV
charging infrastructure industry. In addition, Mr. Greenberg
provides investor relation and digital marketing services for
companies across a variety of industries, such as life sciences,
fintech, internet platforms and others. Mr. Greenberg holds a B.B.A
in Finance from Baruch College and an M.B.A. in Finance from Baruch
College Zicklin School of Business.
Activist believes that Mr. Greenberg’s more than 40 years’
experience in trading, developing strategies, and portfolio
management and public markets experience in the microcap sector
will make him a valuable addition to the Board.
David E. Lazar, age 32, has served as the Chief Executive
Officer of Custodian Ventures LLC, a company which specializes in
assisting distressed public companies through custodianship, since
February 2018, and Activist Investing LLC, an actively managed
investment fund, since March 2018. Previously, Mr. Lazar served as
Managing Partner at Zenith Partners International Inc., a boutique
consulting firm, from July 2012 to April 2018. In his role as Chief
Executive Officer of Custodian Ventures LLC, Mr. Lazar has
successfully served as a custodian to numerous public companies
across a wide range of industries, including without limitation,
Zenosense, Inc. (OTCMKTS: ZENO), C2E Energy, Inc. (OTCMKTS: OOGI),
China Botanic Pharmaceutical Inc. (OTCMKTS: CBPI), One 4 Art Ltd.,
Romulus Corp., Moveix, Inc., Arax Holdings Corp. (OTCMKTS: ARAT),
ESP Resources, Inc. (OTCMKTS: ESPIQ), Adorbs, Inc., Exobox
Technologies Corp. (OTCMKTS: EXBX), Petrone Worldwide, Inc.
(OTCMKTS: PFWIQ), Superbox, Inc. (OTCMKTS: SBOX), Sino Green Land
Corp. (OTCMKTS: SGLA), SIPP International Industries, Inc.
(OTCMKTS: SIPN), Cereplast, Inc. (OTCMKTS: CERPQ), Energy 1 Corp.
(OTCMKTS: EGOC), ForU Holdings, Inc. (OTCMKTS: FORU), China Yanyuan
Yuhui National Education Group, Inc. (OTCMKTS: YYYH), Pan Global
Corp. (OTCMKTS: PGLO), Shengtang International, Inc. (OTCMKTS:
SHNL), Alternaturals, Inc. (OTCMKTS: ANAS), USA Recycling
Industries, Inc. (OTCMKTS: USRI), Tele Group Corp., Xenoics
Holdings, Inc. (OTCMKTS: XNNHQ), Richland Resources International
Group, Inc. (OTCMKTS: RIGG), AI Technology Group, Inc., Reliance
Global Group, Inc. (NASDAQ: RELI), Melt, Inc., Ketdarina Corp., 3D
MarkerJet, Inc. (OTCMKTS: MRJT), Lvpai Group Ltd., Gushen, Inc.,
FHT Future Technology Ltd., Inspired Builders, Inc., Houmu Holdings
Ltd. (OTCMKTS: HOMU), Born, Inc. (OTCMKTS: BRRN), Changsheng
International Group Ltd., Sollensys Corp. (OTCMKTS: SOLS), Guozi
Zhongyu Capital Holdings Co. (OTCMKTS: GZCC) and Cang Bao Tian Xia
International Art Trade Center, Inc. Mr. Lazar currently serves as
an Advisor to PROMAX Investments LLC, a position he has held since
July 2022, and as an Ambassador at Large for the Arab African
Council for Integration and Development, since March 2022.
Activist believes that Mr. Lazar’s diverse knowledge of financial,
legal and operations management; public company management,
accounting, audit preparation, due diligence reviews and SEC
regulations will make him a valuable addition to the Board.
Matthew C. McMurdo, Esq., age 50, currently serves as
Managing Member of McMurdo Law Group, LLC, a corporate and
securities law practice, since 2010. Previously, Mr. McMurdo was a
Partner at Nannarone & McMurdo, LLP, a boutique law firm, from
2008 to 2010. In addition, Mr. McMurdo served as General Counsel of
Berkley Asset Management LLC, the general partner of a real estate
fund focused on opportunistic and distressed real estate assets,
from 2011 to 2013. Mr. McMurdo holds a B.S. in Finance from Lehigh
University and a J.D., cum laude, from Benjamin N. Cardozo
School of Law.
Activist believes that Mr. McMurdo’s extensive experience in
corporate and securities law and advising many public companies
with federal securities law will make him a valuable addition to
the Board.
David Natan, age 69, currently serves as President and Chief
Executive Officer of Natan & Associates, LLC, a consulting firm
offering chief financial officer services to public and private
companies in a variety of industries, since 2007. In addition, Mr.
Natan currently serves as Executive Vice President and Chief
Financial Officer for Airborne Motorworks, Inc., a privately-held
aerospace transportation company, since April 2020. From February
2010 to May 2020, Mr. Natan served as Chief Executive Officer of
ForceField Energy, Inc. (OTCMKTS: FNRG), a company focused on the
solar industry and LED lighting products. From February 2002 to
November 2007, Mr. Natan served as Executive Vice President of
Reporting and Chief Financial Officer of PharmaNet Development
Group, Inc., a drug development services company, and, from June
1995 to February 2002, as Chief Financial Officer and Vice
President of Global Technovations, Inc., a manufacturer and
marketer of oil analysis instruments and speakers and speaker
components. Prior to that, Mr. Natan served in various roles of
increasing responsibility with Deloitte & Touche LLP, a global
consulting firm. Mr. Natan currently serves as a member of the
Board of Directors and Chair of the Audit Committee of Global
Diversified Marketing Group, Inc. (OTCMKTS: GDMK), a manufacturer,
marketer and distributor of food and snack products, since February
2021 and serves as a member of the Board of Directors and Chair of
the Audit Committee of Sunshine Biopharma, Inc. (NASDAQ: SBFM), a
pharmaceutical and nutritional supplement company, since February
2022. Previously, Mr. Natan served as Chairman of the Board of
Directors of ForceField Energy, Inc., from April 2015 to May 2020,
and as a member of the Board of Directors of Global Technovations,
Inc., from December 1999 to December 2001. Mr. Natan holds a B.A.
in Economics from Boston University.
Activist believes that Mr. Natan’s reputation as a seasoned
business executive and his extensive experience as a director of
technology-enabled public companies will make him a valuable
addition to the Board.
The principal business address of Mr. Ben-Tzvi is 15 Yad Harutzim
St., Jerusalem, Israel. The principal business address of Mr.
Chasey is 3295 N. Fort Apache Road, Suite 110, Las Vegas, Nevada
89129. The principal business address of Mr. Greenberg is 710
Carlyle Street, Woodmere, New York 11598. The principal business
address of Mr. Lazar is Villa 1, 14-43rd Street, Jumeirah 2, Dubai,
United Arab Emirates. The principal business address of Mr. McMurdo
is 1185 Avenue of the Americas, 3rd Floor, New York, New York
10036. The principal business address of Mr. Natan is 6720 NW 74th
Court, Parkland, Florida 33067.
As of the date hereof, none of Messrs. Ben-Tzvi, Chasey, Greenberg,
McMurdo and Natan beneficially owns any securities of the Company
or has entered into any transactions in securities of the Company
during the past two years (other than Mr. Greenberg whose
transactions in the securities of the Company during the past two
years in an account jointly held with his child are included in
Schedule I).
As of the date hereof, Mr. Lazar directly beneficially owns
3,331,402 shares of Common Stock. Mr. Lazar, by virtue of his
position as the sole member and Chief Executive Officer of Activist
Investing, may be deemed the beneficial owner of 359,066 shares of
Common Stock directly beneficially owned by Activist Investing. The
shares of Common Stock directly beneficially owned by Mr. Lazar
were purchased with personal funds in the open market. Mr. Lazar
disclaims beneficial ownership of such shares of Common Stock
except to the extent of his pecuniary interest therein. For
information regarding transactions in the securities of the Company
during the past two years by Activist Investing and Mr. Lazar,
please see Schedule I.
Each of the Nominees has consented to being named as a Nominee,
being named as a nominee in any proxy statement filed by Activist
Investing or its affiliates in connection with the solicitation of
proxies for election of such Nominees at the Special Meeting and
serving as a director of the Company if elected.
Mr. Ben-Tzvi is a citizen of the United States of America and
Israel. Mr. Chasey is a citizen of the United States of America.
Mr. Greenberg is a citizen of the United States of America and
Israel. Mr. Lazar is a citizen of Portugal and Israel. Mr. McMurdo
is a citizen of the United States of America. Mr. Natan is a
citizen of the United States of America.
Activist believes that each Nominee presently is, and if elected as
a director of the Company, each of the Nominees would be, an
“independent director” within the meaning of applicable NASDAQ
listing standards applicable to board composition, including Rule
5605(a)(2), and Section 301 of the Sarbanes-Oxley Act of 2002.
Notwithstanding the foregoing, Activist acknowledges that no
director of a NASDAQ listed company qualifies as “independent”
under the NASDAQ listing standards unless the board of directors
affirmatively determines that such director is independent under
such standards. Accordingly, Activist acknowledges that if any
Nominee is elected, the determination of such Nominee’s
independence under the NASDAQ listing standards ultimately rests
with the judgment and discretion of the Board. No Nominee is a
member of the Company’s compensation, nominating or audit committee
that is not independent under any such committee’s applicable
independence standards.
Except
as otherwise set forth in this Proxy Statement (including the
Exhibits hereto), (i) during the past 10 years, no Nominee has been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors); (ii) no Nominee directly or indirectly
beneficially owns any securities of the Company; (iii) no Nominee
owns any securities of the Company which are owned of record but
not beneficially; (iv) no Nominee has purchased or sold any
securities of the Company during the past two years; (v) no part of
the purchase price or market value of the securities of the Company
owned by any Nominee is represented by funds borrowed or otherwise
obtained for the purpose of acquiring or holding such securities;
(vi) no Nominee is, or within the past year was, a party to any
contract, arrangements or understandings with any person with
respect to any securities of the Company, including, but not
limited to, joint ventures, loan or option arrangements, puts or
calls, guarantees against loss or guarantees of profit, division of
losses or profits, or the giving or withholding of proxies; (vii)
no associate of any Nominee owns beneficially, directly or
indirectly, any securities of the Company; (viii) no Nominee owns
beneficially, directly or indirectly, any securities of any parent
or subsidiary of the Company; (ix) no Nominee or any of his
associates was a party to any transaction, or series of similar
transactions, since the beginning of the Company’s last fiscal
year, or is a party to any currently proposed transaction, or
series of similar transactions, to which the Company or any of its
subsidiaries was or is to be a party, in which the amount involved
exceeds $120,000; (x) no Nominee or any of his associates has any
arrangement or understanding with any person with respect to any
future employment by the Company or its affiliates, or with respect
to any future transactions to which the Company or any of its
affiliates will or may be a party; (xi) no Nominee has a
substantial interest, direct or indirect, by securities holdings or
otherwise in any matter to be acted on at the Special Meeting;
(xii) no Nominee holds any positions or offices with the Company;
(xiii) no Nominee has a family relationship with any director,
executive officer, or person nominated or chosen by the Company to
become a director or executive officer and (xiv) no companies or
organizations, with which any of the Nominees has been employed in
the past five years, is a parent, subsidiary or other affiliate of
the Company. There are no material proceedings to which any Nominee
or any of his associates is a party adverse to the Company or any
of its subsidiaries or has a material interest adverse to the
Company or any of its subsidiaries. With respect to each of the
Nominees, except as set forth in this Proxy Statement, none of the
events enumerated in Item 401(f)(1)-(8) of Regulation S-K of the
Exchange Act occurred during the past 10 years.
Other than as set forth herein, there are no agreements,
arrangements or understandings between Activist and the Nominees or
any other person or persons pursuant to which the nominations
described herein are to be made.
If
Activist succeeds in obtaining stockholder approval for the
election of five (5) or more of the Nominees at the Special
Meeting, then a change of control of the Board may be deemed to
have occurred under the Company’s Third Amended and Restated 2015
Omnibus Incentive Plan, which grants the Compensation Committee of
the Board the right to trigger accelerated vesting of the
outstanding equity awards thereunder.
We do not expect that any of the Nominees will be unable to stand
for election, but, in the event any Nominee is unable to serve or
for good cause will not serve, the shares of Common Stock
represented by the enclosed WHITE proxy card will be voted
for substitute nominee(s), to the extent this is not prohibited
under the Bylaws and applicable law. In addition, we reserve the
right to nominate substitute person(s) if the Company makes or
announces any changes to the Bylaws or takes or announces any other
action that has, or if consummated would have, the effect of
disqualifying any Nominee, to the extent this is not prohibited
under the Bylaws and applicable law. In any such case, shares of
Common Stock represented by the enclosed WHITE proxy card
will be voted for such substitute nominee(s). We reserve the right
to nominate additional persons to fill any additional seats if the
Company increases the size of the Board. Additional nominations
made pursuant to the preceding sentence are without prejudice to
the position of Activist that any attempt to increase the size of
the current Board or to classify the Board constitutes an unlawful
manipulation of the Company’s corporate machinery.
The Election Proposal is subject to the concurrent approval of the
Board Expansion Proposal. If the Board Expansion Proposal is not
approved, the Election Proposal will have no effect. A stockholder
may vote for the election of less than all of the Nominees by
designating the names of one or more Nominees who are not to be
elected on the line provided on the WHITE proxy card.
WE URGE YOU TO VOTE FOR THE ELECTION OF THE NOMINEES ON THE
ENCLOSED WHITE PROXY CARD.
VOTING AND PROXY PROCEDURES
Holders of Common Stock are entitled to one vote for each share of
Common Stock held of record on the Record Date with respect to each
matter to be acted on at the Special Meeting. Only stockholders of
record on the Record Date will be entitled to notice of and to vote
at the Special Meeting. Stockholders who sell their shares of
Common Stock before the Record Date (or acquire them without voting
rights after the Record Date) may not vote such shares of Common
Stock. Stockholders of record on the Record Date will retain their
voting rights in connection with the Special Meeting even if they
sell such shares of Common Stock after the Record Date. Based on
publicly available information, Activist believes that the only
outstanding class of securities of the Company entitled to vote at
the Special Meeting is the Common Stock.
Shares
of Common Stock represented by properly executed WHITE proxy
cards will be voted at the Special Meeting as marked and, in the
absence of specific instructions, will be voted FOR the
Board Expansion Proposal and FOR ALL NOMINEES with respect
to the Election Proposal.
How to vote:
Stockholders of Record:
(1) Via the internet. You may use the internet to vote by
visiting to the following internet address www.cesvote.com. Have
your WHITE proxy card in hand as you will be prompted to
enter your 11-digit control number to create and submit an
electronic vote. If you vote in this manner, your “proxy,” whose
name is listed on the enclosed WHITE proxy card, will vote
your shares as you instruct on the proxy card. If you sign and
return the WHITE proxy card or submit an electronic vote but
do not give instructions on how to vote your shares, your shares
will be voted as recommended by Activist.
(2) By telephone. You may submit your vote by calling the
following toll-free number 1-888- 450-7155. Have your WHITE
proxy card in hand as you will be prompted to enter your 11-digit
control number to create and submit a telephonic vote. If you vote
in this manner, your “proxy,” whose name is listed on the enclosed
WHITE proxy card, will vote your shares as you instruct over
the phone. If you sign and return the WHITE proxy card or
submit a telephonic vote but do not give instructions on how to
vote your shares, your shares will be voted as recommended by
Activist.
(3) By mail. You may vote by mail. If you are a record
holder, you may vote by proxy by filling out the proxy card,
signing and dating it and sending it back in the envelope
provided.
(4) In person. You may vote in person virtually at the
Special Meeting by following the instructions when you log-in for
the Special Meeting. You may attend the Special Meeting virtually
by visiting the following internet address
https://www.cstproxy.com/titanpharm/sm2022.
Given that the Special Meeting is currently scheduled to be held
on August 15, 2022, we urge all stockholders to vote by Telephone
or Internet.
QUORUM; BROKER NON-VOTES; DISCRETIONARY VOTING
A quorum is the minimum number of shares of Common Stock that must
be represented at a duly called meeting in person or by proxy in
order to legally conduct business at the meeting under the Bylaws
and Delaware Law. The presence, in person or by proxy, of the
holders of record of thirty-four percent (34%) of the shares then
issued and outstanding and entitled to vote at the meeting shall
constitute a quorum at the Special Meeting.
Abstentions, withhold votes and “broker non-votes” are counted as
shares present and entitled to vote for purposes of determining a
quorum. However, if you hold your shares in street name and do not
provide voting instructions to your broker, your shares will not be
voted on any proposal on which your broker does not have
discretionary authority to vote (a “broker non-vote”). Under
applicable rules, your broker will not have discretionary authority
to vote your shares at the Special Meeting on any of the
proposals.
If you are a stockholder of record, you must deliver your vote by
mail, the Internet, by telephone or attend the virtual Special
Meeting in order to be counted in the determination of a
quorum.
VIRTUAL MEETING
The Special Meeting will be held virtually via a live webcast. You
will not be able to attend the Special Meeting in person at a
physical location. You are entitled to participate in the Special
Meeting if you are a stockholder of record as of the close of
business on the Record Date or hold a legal proxy for the meeting
provided by your broker, bank or other nominee.
You may participate in the virtual Special Meeting by visiting the
following web address https://www.cstproxy.com/titanpharm/sm2022.
Have your proxy card in hand as you may be prompted to enter your
control number to attend and follow the instructions, if any, to
complete your registration for the Special Meeting.
We encourage you to access the meeting site prior to the start time
of the Special Meeting to allow ample time to log into the meeting
webcast and test your computer system.
Whether or not you plan to attend the Special Meeting, we urge you
to vote via the Internet or by telephone as instructed on the
WHITE proxy card as soon as possible. If you have any
difficulty accessing the Special Meeting, please email
info@investor-com.com.
VOTES REQUIRED FOR APPROVAL
Approval of the Board Expansion Proposal — The affirmative
vote of the holders of a majority of the Common Stock having voting
power present in person or represented by proxy is required to
approve the Board Expansion Proposal, subject to the approval of
the Election Proposal. Neither abstentions nor broker non-votes
will have any effect on the outcome of the Board Expansion
Proposal.
Approval of the Election Proposal — The election of
directors requires the affirmative vote of a plurality of the
shares of Common Stock present in person or by proxy and entitled
to vote at the Special Meeting. Neither abstentions nor broker
non-votes will have any effect on the outcome of the Election
Proposal.
Under applicable Delaware law, none of the holders of Common Stock
is entitled to appraisal rights in connection with any matter to be
acted on at the Special Meeting. If you sign and submit your
WHITE proxy card without specifying how you would like your
shares voted, your shares will be voted in accordance with
Activist’s recommendations specified herein and in accordance with
the discretion of the persons named on the WHITE proxy card
with respect to any other matters that may be voted upon at the
Special Meeting.
REVOCATION OF PROXIES
Stockholders of the Company may revoke their proxies at any time
prior to exercise by attending the virtual Special Meeting and
voting in person (although attendance at the virtual Special
Meeting will not in and of itself constitute revocation of a proxy)
or by delivering a written notice of revocation. The delivery of a
subsequently dated proxy which is properly completed will
constitute a revocation of any earlier proxy. The revocation may be
delivered either to Activist in care of InvestorCom at the address
set forth on the back cover of this Proxy Statement or to the
Company at 400 Oyster Point Boulevard, Suite 505, South San
Francisco, California 94080 or any other address provided by the
Company. Although a revocation is effective if delivered to the
Company, we request that either the original or photostatic copies
of all revocations be mailed to Activist in care of InvestorCom at
the address set forth on the back cover of this Proxy Statement so
that we will be aware of all revocations and can more accurately
determine if and when proxies have been received from the holders
of record on the Record Date of a majority of the outstanding
shares of Common Stock. Additionally, InvestorCom may use this
information to contact stockholders who have revoked their proxies
in order to solicit later dated proxies for the election of the
Nominees.
IF YOU WISH TO VOTE FOR THE ELECTION OF THE NOMINEES TO THE
BOARD, PLEASE SIGN, DATE AND RETURN PROMPTLY THE ENCLOSED WHITE
PROXY CARD IN THE POSTAGE-PAID ENVELOPE PROVIDED.
SOLICITATION OF PROXIES
The solicitation of proxies pursuant to this Proxy Statement is
being made by Activist. Proxies may be solicited by mail,
facsimile, telephone, Internet, in person and by
advertisements.
Activist Investing has entered into an agreement with InvestorCom
for solicitation and advisory services in connection with this
solicitation, for which InvestorCom will receive a fee not to
exceed $10,000, together with reimbursement for its reasonable
out-of-pocket expenses, and will be indemnified against certain
liabilities and expenses, including certain liabilities under the
federal securities laws. InvestorCom will solicit proxies from
individuals, brokers, banks, bank nominees and other institutional
holders. Activist Investing has requested banks, brokerage houses
and other custodians, nominees and fiduciaries to forward all
solicitation materials to the beneficial owners of the shares they
hold of record. Activist Investing will reimburse these record
holders for their reasonable out-of-pocket expenses in so doing. It
is anticipated that InvestorCom will employ approximately 25
persons to solicit stockholders for the Special Meeting.
The entire expense of soliciting proxies is being borne by
Activist. Costs of this solicitation of proxies are currently
estimated to be approximately $[______] (including, but not limited
to, fees for attorneys, solicitors and other advisors, and other
costs incidental to the solicitation). Activist estimates that
through the date hereof its expenses in furtherance of, or in
connection with, the solicitation are approximately $[______]. The
actual amount could be higher or lower depending on the facts and
circumstances arising in connection with any solicitation. Activist
may seek reimbursement from the Company of all expenses it incurs
in connection with this solicitation but does not intend to submit
the question of such reimbursement to a vote of security holders of
the Company.
ADDITIONAL PARTICIPANT INFORMATION
The participants in the solicitation are anticipated to be Activist
Investing, Mr. Lazar and the other Nominees (each a “Participant”
and collectively, the “Participants”).
The business address of Activist Investing is 1185 Avenue of the
Americas, 3rd Floor, New York, New York 10036. The business address
of each of the Nominees is as set forth elsewhere in this Proxy
Statement.
The principal business of Activist Investing is actively investing
in distressed public companies. The principal occupation of each of
the Nominees is as set forth elsewhere in this Proxy Statement.
As of the date hereof, Activist Investing is the direct beneficial
owner of 359,066 shares of Common Stock. The class and number of
securities of the Company beneficially owned by each of the
Nominees is as set forth elsewhere in this Proxy Statement. For
information regarding purchases and sales of securities of the
Company during the past two years by each of the Participants,
please see Schedule I attached hereto. The securities of the
Company purchased by Activist Investing were purchased with working
capital (which may, at any given time, include margin loans made by
brokerage firms in the ordinary course of business) in the open
market.
Except as otherwise set forth in this Proxy Statement (including
the Exhibits hereto), (i) during the past 10 years, no Participant
has been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); (ii) no Participant directly
or indirectly beneficially owns any securities of the Company;
(iii) no Participant owns any securities of the Company which are
owned of record but not beneficially; (iv) no Participant has
purchased or sold any securities of the Company during the past two
years; (v) no part of the purchase price or market value of the
securities of the Company owned by any Participant is represented
by funds borrowed or otherwise obtained for the purpose of
acquiring or holding such securities; (vi) no Participant is, or
within the past year was, a party to any contract, arrangements or
understandings with any person with respect to any securities of
the Company, including, but not limited to, joint ventures, loan or
option arrangements, puts or calls, guarantees against loss or
guarantees of profit, division of losses or profits, or the giving
or withholding of proxies; (vii) no associate of any Participant
owns beneficially, directly or indirectly, any securities of the
Company; (viii) no Participant owns beneficially, directly or
indirectly, any securities of any parent or subsidiary of the
Company; (ix) no Participant or any of his or its associates was a
party to any transaction, or series of similar transactions, since
the beginning of the Company’s last fiscal year, or is a party to
any currently proposed transaction, or series of similar
transactions, to which the Company or any of its subsidiaries was
or is to be a party, in which the amount involved exceeds $120,000;
(x) no Participant or any of his or its associates has any
arrangement or understanding with any person with respect to any
future employment by the Company or its affiliates, or with respect
to any future transactions to which the Company or any of its
affiliates will or may be a party; (xi) no Participant has a
substantial interest, direct or indirect, by securities holdings or
otherwise in any matter to be acted on at the Special Meeting;
(xii) no Participant holds any positions or offices with the
Company; (xiii) no Participant has a family relationship with any
director, executive officer, or person nominated or chosen by the
Company to become a director or executive officer and (xiv) no
companies or organizations, with which any of the Participants has
been employed in the past five years, is a parent, subsidiary or
other affiliate of the Company. There are no material proceedings
to which any Participant or any of his or its associates is a party
adverse to the Company or any of its subsidiaries or has a material
interest adverse to the Company or any of its subsidiaries.
Other than as set forth herein, there are no agreements,
arrangements or understandings between Activist Investing or any of
the other Participants and their respective affiliates and
associates, and the Nominees or any other person or persons
pursuant to which the nominations described herein are to be made.
Activist Investing and the other Participants and their respective
affiliates and associates have no material interest in such
nominations (other than in their capacities as stockholders of the
Company, as applicable), including any anticipated benefit
therefrom to Activist Investing or the other Participants and their
respective affiliates and associates.
OTHER MATTERS AND ADDITIONAL INFORMATION
Activist is unaware of any other matters to be considered at the
Special Meeting. However, should other matters, which Activist is
not aware of a reasonable time before this solicitation, be brought
before the Special Meeting, the persons named as proxies on the
enclosed WHITE proxy card will vote on such matters in their
discretion.
Some banks, brokers and other nominee record holders may be
participating in the practice of “householding” proxy statements
and annual reports. This means that only one copy of this Proxy
Statement may have been sent to multiple stockholders in your
household. Activist will promptly deliver a separate copy of the
document to you if you write to our proxy solicitor, InvestorCom,
at the following address or phone number: 19 Old Kings Highway S.,
Suite 130, Darien, CT 06820, or call toll free at (877) 972-0090.
If you want to receive separate copies of our proxy materials in
the future, or if you are receiving multiple copies and would like
to receive only one copy for your household, you should contact
your bank, broker or other nominee record holder, or you may
contact our proxy solicitor at the above address and phone
number.
Activist is unaware of any other matters to be considered at the
Special Meeting. However, should other matters, which Activist is
not aware of a reasonable time before this solicitation, be brought
before the Special Meeting, the persons named as proxies on the
enclosed WHITE proxy card will vote on such matters in their
discretion.
INCORPORATION BY REFERENCE
WE
HAVE OMITTED FROM THIS PROXY STATEMENT CERTAIN DISCLOSURE REQUIRED
BY APPLICABLE LAW THAT WILL BE INCLUDED IN THE COMPANY’S PROXY
STATEMENT WITH RESPECT TO THE 2022 ANNUAL MEETING BASED ON RELIANCE
ON RULE 14A-5(C). THIS DISCLOSURE INCLUDES, AMONG OTHER THINGS,
BIOGRAPHICAL INFORMATION ON THE COMPANY’S DIRECTORS, INFORMATION
CONCERNING EXECUTIVE COMPENSATION, AND OTHER IMPORTANT INFORMATION.
SEE SCHEDULE II FOR INFORMATION REGARDING PERSONS WHO BENEFICIALLY
OWN MORE THAN 5% OF THE SHARES AND THE OWNERSHIP OF THE SHARES BY
THE DIRECTORS AND MANAGEMENT OF THE COMPANY.
The information concerning the Company contained in this Proxy
Statement and the Schedules attached hereto has been taken from, or
is based upon, publicly available information.
|
|
Activist Investing LLC
July 14, 2022
|
SCHEDULE I
TRANSACTIONS IN SECURITIES OF the Company
DURING THE PAST TWO YEARS
|
Nature of Transaction |
Amount of Securities
Purchased/(Sold)
|
Date of
Purchase/Sale
|
ACTIVIST INVESTING LLC
|
Purchase of Common Stock
|
40,000 |
01/20/2022 |
|
Purchase of Common Stock |
2,000 |
01/24/2022 |
|
Purchase of Common Stock |
315,291 |
07/06/2022 |
DAVID E. LAZAR
|
Purchase of Common Stock
|
2,000 |
04/08/2022 |
|
Purchase of Common Stock |
2,000 |
04/08/2022 |
|
Purchase of Common Stock |
2,000 |
04/08/2022 |
|
Purchase of Common Stock |
2,000 |
04/08/2022 |
|
Purchase of Common Stock |
1,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/08/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
|
Purchase of Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/11/2022 |
| Purchase of
Common Stock |
2,000 |
04/12/2022 |
| Purchase of
Common Stock |
2,000 |
04/12/2022 |
| Purchase of
Common Stock |
2,000 |
04/12/2022 |
| Purchase of
Common Stock |
2,000 |
04/12/2022 |
| Purchase of
Common Stock |
2,000 |
04/12/2022 |
| Purchase of
Common Stock |
2,000 |
04/12/2022 |
| Purchase of
Common Stock |
10,000 |
04/14/2022 |
| Purchase of
Common Stock |
10,000 |
04/14/2022 |
| Purchase of
Common Stock |
10,000 |
04/14/2022 |
| Purchase of
Common Stock |
5,000 |
04/14/2022 |
| Purchase of
Common Stock |
55,000 |
04/18/2022 |
|
Purchase of Common Stock |
72,000 |
06/06/2022 |
|
Purchase of Common Stock |
475,000 |
06/07/2022 |
|
Purchase of Common Stock |
205,000 |
06/08/2022 |
|
Purchase of Common Stock |
1,188,975 |
07/06/2022 |
|
Purchase of Common Stock |
744,294 |
07/07/2022 |
ERIC GREENBERG1
|
Purchase of Common Stock |
9,932 |
04/25/2022 |
|
Purchase of Common Stock |
68 |
04/25/2022 |
|
Purchase of Common Stock |
20,000 |
04/25/2022 |
|
Purchase of Common Stock |
2,300 |
04/25/2022 |
|
Purchase of Common Stock |
7,700 |
04/25/2022 |
|
Purchase of Common Stock |
5,000 |
05/18/2022 |
|
Purchase of Common Stock |
100 |
05/18/2022 |
|
Purchase of Common Stock |
2,900 |
05/18/2022 |
|
Purchase of Common Stock |
1,000 |
05/18/2022 |
|
Purchase of Common Stock |
6,000 |
05/19/2022 |
|
Purchase of Common Stock |
7,500 |
05/19/2022 |
|
Purchase of Common Stock |
7,500 |
05/19/2022 |
|
Purchase of Common Stock |
4,000 |
06/08/2022 |
|
Purchase of Common Stock |
4,000 |
06/08/2022 |
|
Purchase of Common Stock |
83 |
06/09/2022 |
|
Purchase of Common Stock |
701 |
06/09/2022 |
|
Purchase of Common Stock |
100 |
06/09/2022 |
|
Purchase of Common Stock |
100 |
06/09/2022 |
|
Purchase of Common Stock |
16 |
06/09/2022 |
|
Purchase of Common Stock |
100 |
06/09/2022 |
|
Purchase of Common Stock |
501 |
06/09/2022 |
|
Purchase of Common Stock |
1,149 |
06/09/2022 |
|
1 |
Represents transactions in an
account by Mr. Greenberg through an account jointly held with his
child. |
|
Purchase of Common Stock |
750 |
06/09/2022 |
|
Purchase of Common Stock |
3,000 |
06/09/2022 |
|
Purchase of Common Stock |
2,200 |
06/09/2022 |
|
Purchase of Common Stock |
1,300 |
06/09/2022 |
|
Purchase of Common Stock |
12,500 |
06/27/2022 |
|
Purchase of Common Stock |
3,900 |
06/27/2022 |
|
Purchase of Common Stock |
500 |
06/27/2022 |
|
Purchase of Common Stock |
100 |
06/27/2022 |
|
Sale of Common Stock |
(2,000) |
07/05/2022 |
|
Sale of Common Stock |
(1,500) |
07/05/2022 |
|
Sale of Common Stock |
(2,000) |
07/05/2022 |
|
Sale of Common Stock |
(8,000) |
07/05/2022 |
|
Purchase of Common Stock |
7,900 |
07/05/2022 |
|
Purchase of Common Stock |
100 |
07/05/2022 |
|
Sale of Common Stock |
(3,500) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(2,000) |
07/06/2022 |
|
Sale of Common Stock |
(6,000) |
07/06/2022 |
|
Sale of Common Stock |
(3,500) |
07/06/2022 |
|
Sale of Common Stock |
(10) |
07/06/2022 |
|
Sale of Common Stock |
(2,490) |
07/06/2022 |
|
Sale of Common Stock |
(2,500) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(3,500) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(6,400) |
07/06/2022 |
|
Sale of Common Stock |
(1,000) |
07/06/2022 |
|
Sale of Common Stock |
(3,300) |
07/06/2022 |
|
Sale of Common Stock |
(4,000) |
07/06/2022 |
|
Sale of Common Stock |
(3,300) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(5,000) |
07/06/2022 |
|
Sale of Common Stock |
(9,000) |
07/06/2022 |
|
Sale of Common Stock |
(14,000) |
07/06/2022 |
SCHEDULE II
The following table is reprinted from the Company’s
definitive proxy statement filed with the Securities and Exchange
Commission on November 5, 2021.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The following table sets forth as of the Record Date, the number of
shares of our common stock beneficially owned by (i) each
person who is known by us to be the beneficial owner of more than
five percent of our common stock; (ii) each current
director and director nominee; (iii) each of the named
executive officers; and (iv) all directors and executive
officers as a group. As of the Record Date, we had 9,864,068 shares
of common stock issued and outstanding.
Beneficial ownership is determined in accordance with the rules of
the Securities and Exchange Commission (the “SEC”) and generally
includes voting or investment power with respect to securities.
Unless otherwise indicated, the stockholders listed in the table
have sole voting and investment power with respect to the shares
indicated.
|
Name and Address of Beneficial Owner (1) |
|
Shares
Beneficially
Owned (2) |
|
|
Percent of
Shares
Beneficially
Owned |
|
|
Joseph A. Akers(3) |
|
|
27,504 |
|
|
|
* |
% |
| Kate
Beebe DeVarney, Ph.D.(4) |
|
|
93,432 |
|
|
|
* |
|
| M.
David MacFarlane, Ph.D.(5) |
|
|
26,268 |
|
|
|
* |
|
| James
R. McNab, Jr.(6) |
|
|
27,988 |
|
|
|
* |
|
| Marc
Rubin, M.D.(7) |
|
|
102,510 |
|
|
|
1.0 |
|
| All
executive officers and directors as a group (5) persons |
|
|
|
|
|
|
2.7 |
|
|
(1) |
Unless otherwise indicated, the
address of such individual is c/o Titan Pharmaceuticals, Inc.,
400 Oyster Point Boulevard, Suite 505, South San Francisco,
California 94080. |
|
(2) |
In computing the number of shares
beneficially owned by a person and the percentage ownership of
a person, shares of our common stock subject to options held by
that person that are currently exercisable or exercisable within
60 days of the Record Date are deemed outstanding. Such
shares, however, are not deemed outstanding for purposes of
computing the percentage ownership of each other person.
Except as indicated in the footnotes to this table and pursuant to
applicable community property laws, the persons named in the table
have sole voting and investment power with respect to all shares of
common stock. |
|
(3) |
Includes (i) 25,207 shares
issuable upon exercise of outstanding options and (ii) 1,112
shares issuable upon exercise of outstanding warrants. |
|
(4) |
Includes 93,352shares issuable upon
exercise of outstanding options. |
|
(5) |
Includes (i) 25,251shares
issuable upon exercise of outstanding options and (ii) 445
shares issuable upon exercise of outstanding warrants. |
|
(6) |
Includes (i) 25,207shares
issuable upon exercise of outstanding options and (ii) 1,112
shares issuable upon exercise of outstanding warrants. |
|
(7) |
Includes (i) 97,184shares
issuable upon exercise of outstanding options and (ii) 2,223
shares issuable upon exercise of outstanding warrants. |
IMPORTANT
Tell
your Board what you think! Your vote is important. No matter how
many shares of Common Stock you own, please give Activist your
proxy “FOR” the Board Expansion Proposal and “FOR ALL
NOMINEES” with respect to the Election Proposal by taking these
three steps:
|
· |
SIGNING the enclosed WHITE
proxy card; |
|
· |
DATING the enclosed WHITE
proxy card; and |
|
· |
MAILING the enclosed WHITE
proxy card TODAY in the envelope provided (no postage is required
if mailed in the United States). |
You may vote your shares in person virtually at the Special
Meeting, however, even if you plan to attend the Special Meeting,
we recommend that you submit your WHITE proxy card by mail by the
applicable deadline so that your vote will still be counted if you
later decide not to attend the Special Meeting. If any of your
shares of Common Stock are held in the name of a brokerage firm,
bank, bank nominee or other institution, only it can vote such
shares of Common Stock and only upon receipt of your specific
instructions. Depending upon your broker or custodian, you may
be able to vote either by toll-free telephone or by the Internet.
Please refer to the enclosed voting form for instructions on how to
vote electronically. You may also vote by signing, dating and
returning the enclosed WHITE voting form.
19 Old Kings Highway S. – Suite 130
Darien, Connecticut 06820
Toll Free (877) 972-0090
Banks and Brokers call collect (203) 972-9300
info@investor-com.com
PRELIMINARY COPY SUBJECT TO
COMPLETION
DATED JULY 14, 2022
Titan Pharmaceuticals,
Inc.
SPECIAL Meeting of
Stockholders
THIS PROXY IS
SOLICITED ON BEHALF OF ACTIVIST INVESTING LLC AND THE OTHER
PARTICPANTS IN ITS PROXY SOLICITATION
THE BOARD OF DIRECTORS OF TITAN PHARMACEUTICALS, INC.
IS NOT SOLICITING THIS PROXY
P R O X Y
The undersigned appoints David E. Lazar and John Grau, and each of
them, attorneys and agents with full power of substitution to vote
all shares of common stock of Titan Pharmaceuticals, Inc. (the
“Company”) which the undersigned would be entitled to vote if
personally present at the upcoming Special Meeting of Stockholders
of the Company scheduled to be held virtually, via live webcast at
9:00 AM Pacific Time on August 15, 2022 at
https://www.cstproxy.com/titanpharm/sm2022, (including any
adjournments or postponements thereof and any meeting called in
lieu thereof, the “Special Meeting”).
The undersigned hereby revokes any other proxy or proxies
heretofore given to vote or act with respect to the shares of
common stock of the Company held by the undersigned, and hereby
ratifies and confirms all action the herein named attorneys and
proxies, their substitutes, or any of them may lawfully take by
virtue hereof. If properly executed, this Proxy will be voted as
directed on the reverse and in the discretion of the herein named
attorneys and proxies or their substitutes with respect to any
other matters as may properly come before the Special Meeting that
are unknown to Activist Investing LLC (“Activist Investing”) a
reasonable time before this solicitation.
IF NO DIRECTION IS INDICATED WITH RESPECT TO THE PROPOSALS ON
THE REVERSE, THIS PROXY WILL BE VOTED “FOR” PROPOSAL 1 AND “FOR ALL
NOMINEES” WITH RESPECT TO PROPOSAL 2.
This Proxy will be valid until the completion of the Special
Meeting. This Proxy will only be valid in connection with Activist
Investing’s solicitation of proxies for the Special Meeting.
IMPORTANT: PLEASE SIGN, DATE AND MAIL THIS PROXY CARD
PROMPTLY!
CONTINUED AND TO BE SIGNED ON REVERSE SIDE
☒ Please mark vote as in this example
ACTIVIST INVESTING STRONGLY RECOMMENDS THAT Stockholders VOTE “FOR” PROPOSAL
1 AND “FOR ALL NOMINEES” IN PROPOSAL 2.
|
1. |
Activist Investing’s proposal to
increase the size of the Board by six (6) members, so that the
Board will be constituted by eleven (11) members in total. |
|
☐ |
FOR |
☐ |
AGAINST |
☐ |
ABSTAIN |
|
2. |
Subject to the approval of Proposal
1, Activist Investing’s proposal to elect Avraham Ben-Tzvi, Peter
L. Chasey, Eric Greenberg, David E. Lazar, Matthew C. McMurdo and
David Natan to the Board of Directors to serve until the Company’s
2022 annual meeting of stockholders and until their successors are
elected and are qualified. |
|
|
FOR ALL NOMINEES |
WITHHOLD AUTHORITY TO VOTE FOR ALL NOMINEES |
FOR ALL NOMINEE(S) EXCEPT WRITTEN BELOW |
|
Nominees: Avraham
Ben-Tzvi
Peter L. Chasey
Eric Greenberg
David E. Lazar
Matthew C. McMurdo
David Natan
|
☐ |
☐ |
☐
________________
________________
________________
________________
|
| |
|
|
|
Activist Investing does not expect that any of the nominees will be
unable to stand for election, but, in the event any nominee is
unable to serve or for good cause will not serve, the shares of
common stock represented by this proxy card will be voted for
substitute nominee(s), to the extent this is not prohibited under
the Company’s organizational documents and applicable law. In
addition, Activist Investing has reserved the right to nominate
substitute person(s) if the Company makes or announces any changes
to its organizational documents or takes or announces any other
action that has, or if consummated would have, the effect of
disqualifying any nominee, to the extent this is not prohibited
under the Company’s organizational documents and applicable law. In
any such case, shares of common stock represented by this proxy
card will be voted for such substitute nominee(s).
Note: If you do not wish for your shares to be voted “FOR” a
particular nominee, mark the “FOR ALL NOMINEE(S) EXCEPT WRITTEN
BELOW” box and write the name(s) of the nominee(s) you do not
support on the line(s) above. Your shares will be voted for the
remaining nominee(s).
DATED: ____________________________
____________________________________
(Signature)
____________________________________
(Signature, if held jointly)
____________________________________
(Title)
WHEN SHARES ARE HELD JOINTLY, JOINT OWNERS SHOULD EACH SIGN.
EXECUTORS, ADMINISTRATORS, TRUSTEES, ETC., SHOULD INDICATE THE
CAPACITY IN WHICH SIGNING. PLEASE SIGN EXACTLY AS NAME APPEARS ON
THIS PROXY.
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