UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
(Rule
14a-101)
Proxy
Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
| Filed
by the registrant ☒ |
Filed
by a Party other than the Registrant ☐ |
Check
the appropriate box:
| ☒ |
Preliminary
Proxy Statement |
☐ |
Confidential,
For Use of the Commission Only |
| ☐ |
Definitive
Proxy Statement |
|
(as
permitted by Rule 14a-6(e)(2)) |
| ☐ |
Definitive
Additional Materials |
|
|
| ☐ |
Soliciting
Material under Rule 14a-12 |
|
|
GT
BIOPHARMA, INC.
(Name
of Registrant as Specified in Its Charter)
N/A
(Name
of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
| ☒ |
No
Fee Required |
| |
|
| ☐ |
Fee
paid previously with preliminary materials |
| |
|
| ☐ |
Fee
computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11 |
PRELIMINARY PROXY STATEMENT,
DATED OCTOBER 27, 2023,
SUBJECT TO COMPLETION
GT
BIOPHARMA, INC.
8000
Marina Boulevard, Suite 100
Brisbane,
California 94005
(415)
919-4040
TO
THE STOCKHOLDERS OF GT BIOPHARMA, INC.:
We
are pleased to invite you to attend a Special Meeting of Stockholders (the “Special Meeting”) of GT Biopharma, Inc., a Delaware
corporation (the “Company”). The Special Meeting will be held on December 18, 2023, at 11:00 A.M., Pacific time via
live webcast. You will be able to attend the Special Meeting, vote, and submit your questions during the meeting via live webcast through
the link www.virtualshareholdermeeting.com/GTBP2023SM and entering your control number, which can be found on your proxy card.
We
have adopted this technology to expand access to the meeting, improve communications and impose lower costs on our stockholders, the
company and the environment. We believe virtual meetings enable increased stockholder participation from locations around the world.
Enclosed
are the following:
| |
● |
Our
Notice of Special Meeting of Stockholders (the “Notice”), and proxy statement; and |
| |
● |
A
proxy card with a return envelope to record your vote. |
The
Notice lists the matters to be considered at the Special Meeting, and the proxy statement describes the matters listed in the Notice.
We
intend to mail these proxy materials on or about November 7, 2023 to all stockholders of record entitled to vote at the Special Meeting.
Your
vote at the Special Meeting is important. Whether or not you plan to attend the Special Meeting, we ask that you submit your proxy to
vote as soon as possible so that your shares are represented at the Special Meeting. We appreciate your participation and your interest
in GT Biopharma, Inc.
| October
27, 2023 |
|
By
Order of the Board of Directors |
| |
|
|
| |
|
Michael
Breen
Executive
Chairman of the Board and
Interim Chief Executive Officer |
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
To
our Stockholders:
A
Special Meeting of Stockholders of GT Biopharma, Inc. (the “Special Meeting”) will be held on December 18, 2023, at 11:00
AM, Pacific time via live webcast, for the following purposes:
| 1. | To
approve an amendment to our second restated certificate of incorporation, as amended (the
“Charter”), in the form attached to the proxy statement as Annex A, to, at the
discretion of our Board of Directors (the “Board”) in the event they deem it necessary, effect a reverse stock split
with respect to our issued and outstanding common stock, par value $0.001 per share (“Common
Stock”), including any Common Stock held by the Company as treasury shares, at any
time prior to February 20, 2024, at a ratio of 1-for-5 to 1-for-30 (the “Range”),
with the ratio within such Range to be determined at the discretion of the Board without
further approval or authorization of our stockholders (the “Reverse Stock Split”)
and included in a public announcement. |
| 2. | To
consider and vote upon an adjournment of the Special Meeting from time to time to a later date or dates, if necessary, to establish
a quorum and/or solicit additional proxies if there are not sufficient votes in favor of
Proposal No. 1. |
These
items of business are more fully described in the proxy statement accompanying this notice. The record date for the Special Meeting is
October 23, 2023. Only stockholders holding shares of our Common Stock as of the close of business on the record date are entitled to
notice of, and to vote at, the Special Meeting or any adjournments thereof.
We
will begin mailing printed copies of our proxy materials to stockholders of record as of the record date on or about November 7, 2023.
WHETHER
OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING VIA THE LIVE WEBCAST AND REGARDLESS OF THE NUMBER OF SHARES YOU OWN, YOUR VOTE IS VERY
IMPORTANT. PLEASE COMPLETE, SIGN AND SUBMIT YOUR PROXY AS SOON AS POSSIBLE SO THAT YOUR SHARES CAN BE VOTED AT THE SPECIAL MEETING IN
ACCORDANCE WITH YOUR INSTRUCTIONS.
| October
27, 2023 |
|
By
Order of the Board of Directors |
| |
|
|
| |
|
Michael
Breen
Executive
Chairman of the Board and
Interim Chief Executive Officer |
Important
Notice Regarding the Internet Availability of Proxy Materials for the Company’s Special Meeting of Stockholders to Be Held on December
18, 2023: The Notice of Special Meeting of Stockholders and proxy statement are each available at www.proxyvote.com.
This
proxy statement is also available on the SEC’s website at www.sec.gov.
TABLE
OF CONTENTS
PROXY
STATEMENT FOR THE SPECIAL MEETING OF STOCKHOLDERS
TO
BE HELD ON DECEMBER 18, 2023
QUESTIONS
AND ANSWERS ABOUT THE SPECIAL MEETING OF STOCKHOLDERS
PROXY
STATEMENT — SPECIAL MEETING OF STOCKHOLDERS
This
proxy statement contains information about the Special Meeting of Stockholders (the “Special Meeting”) of GT Biopharma, Inc.,
a Delaware corporation, including any postponements or adjournments of the Special Meeting. The Special Meeting will be held on December
18, 2023, at 11:00 AM Pacific time via live webcast. The proxy materials can be accessed by following the instructions in the
Notice (www.proxyvote.com) as well as online at our Investor Relations website at https://ir.gtbiopharma.com.
In
this proxy statement, we sometimes refer to GT Biopharma, Inc. and its subsidiaries as “GT Biopharma,” the “Company,”
“we,” “us,” or “our.” In addition, unless the context otherwise requires, references to “stockholders”
are to the holders of our common stock, par value $0.001 per share (“Common Stock”).
This
proxy statement contains important information for you to consider when deciding how to vote on the matters for which we are soliciting
proxies. Please read it carefully.
What
Proposals Will Be Presented at the Special Meeting and What Are the Voting Recommendations of the Board of Directors?
The
proposals that will be presented at the Special Meeting and the voting recommendations of our Board of Directors (the “Board”)
are set forth in the table below:
| Proposal |
|
Board’s
Voting
Recommendation |
| (1) |
|
Approve
an amendment to our second restated certificate of incorporation, as amended (the “Charter”), in the form attached
to the proxy statement as Annex A, to, at the discretion of the Board in the event they deem it necessary, effect a
reverse stock split with respect to our issued and outstanding Common Stock, including any Common Stock held by the Company as treasury
shares, at any time prior to February 20, 2024, at a ratio of 1-for-5 to 1-for-30 (the “Range”), with the ratio
within such Range to be determined at the discretion of the Board without further approval or authorization of our stockholders and
included in a public announcement (such action, the “Reverse Stock Split” and such proposal is referred to herein as
the “Reverse Stock Split Proposal”). |
|
FOR
approval |
| |
|
|
| (2) |
|
To
consider and vote upon an adjournment of the Special Meeting from time to time to a later date or dates, if necessary,
to establish a quorum and/or solicit additional proxies if there are not sufficient votes in favor of Proposal No. 1 (the
“Adjournment Proposal”). |
|
FOR
approval |
Other
than these proposals, no other proposals will be presented for a vote at the Special Meeting.
Who
Can Vote?
The
record date to determine the stockholders entitled to notice of and to vote at the Special Meeting is the close of business on October
23, 2023. On the record date, 41,477,120 shares of Common Stock were issued and outstanding and entitled to vote.
Holders
of record of our Common Stock as of the close of business on the record date will be entitled to notice of and to vote at the Special
Meeting and at any adjournments or postponements thereof.
Holders
of record of shares of Common Stock have the right to vote on all matters brought before the Special Meeting and at any adjournments
or postponements thereof.
You
do not need to attend the Special Meeting to vote your shares. Instead, you may submit a proxy to vote your shares by marking, signing,
dating and returning the enclosed proxy card or submitting your proxy through the Internet.
Stockholder
of Record: Shares Registered in Your Name
If,
on the record date, your shares were registered directly in your name with our transfer agent, Computershare Trust Company, N.A.,
then you are a stockholder of record, and you can vote your shares at the Special Meeting by one of the methods described below in
the section entitled “How Do I Vote and When is the Deadline for Voting?”
Beneficial
Owner: Shares Registered in the Name of a Broker or Bank
If,
on the record date, your shares were held in an account at a brokerage firm, bank, dealer or other similar organization, then you are
the beneficial owner of shares held in “street name” and you may vote your shares at the Special Meeting by one of the methods
described below in the section entitled “How Do I Vote and When is the Deadline for Voting?”
How
Many Votes do I Have?
Each
holder of record of our Common Stock is entitled to one vote per share of Common Stock on each matter to be acted upon at the Special
Meeting.
How
Will I Receive Proxy Materials?
On
or about November 7, 2023, we will mail proxy materials to holders of record of our Common Stock as of the close of business on the record
date.
How
Do I Vote and When is the Deadline for Voting?
Whether
you plan to attend the Special Meeting or not, we urge you to submit your proxy to vote. Submitting a proxy to vote your shares will
not affect your right to attend the Special Meeting.
Stockholder
of Record
If
your shares are registered directly in your name, you may vote or submit your proxy to vote:
| |
● |
By
mail. Complete and mail the enclosed proxy card in the enclosed postage prepaid envelope. Your proxy will be voted in accordance
with your instructions. If you sign the proxy card but do not specify how you want your shares voted, they will be voted as recommended
by our Board. Your proxy card must be received on or before 11:59 P.M. Eastern time on December 17, 2023, the day before the Special
Meeting, to be counted. |
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● |
In
attendance at the Special Meeting. You may vote during the virtual meeting through www.virtualshareholdermeeting.com/GTBP2023SM.
To be admitted to the Special Meeting and vote your shares, you must provide the control
number as described in the proxy card mailed to you. |
| |
● |
By
telephone. You may vote over the telephone by following the instructions in the proxy card that accompanies this proxy statement.
Please have your proxy card available when you call. Your vote must be received prior to 11:59 P.M. Eastern time on December 17,
2023, the day before the Special Meeting, to be counted. |
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|
|
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● |
Over
the Internet. You may submit your proxy to vote via the Internet by going to www.virtualshareholdermeeting.com/GTBP2023SM and
following the on-screen instructions. Please have your proxy card available when you access the webpage. Your proxy to vote must
be received prior to 11:59 P.M. Eastern time on December 17, 2023, the day before the Special Meeting, to be counted. |
Hold
Shares in Street Name
If
you hold shares in street name, the organization holding your account is considered the stockholder of record for purposes of voting
at the Special Meeting. The stockholder of record will provide you with instructions on how to direct your bank, broker or other financial
intermediary on how to vote your shares. Internet and telephone instructions will be offered to stockholders owning shares through most
banks and brokers. Additionally, if you would like to vote at the Special Meeting via live webcast, you must contact the broker or other
nominee who holds your shares and obtain a signed broker’s proxy card giving you the right to vote the shares, and bring it with
you to the Special Meeting. You will not be able to vote at the Special Meeting unless you have a signed proxy card from your broker.
What
If I Return a Proxy Card But Do Not Make Specific Choices?
If
you return a signed and dated proxy card without marking any voting selections, your shares will be voted on the matters as recommended
by our Board.
Will
My Shares Be Voted if I Do Not Return My Proxy Card or Vote by the Deadline?
If
you are a stockholder of record, your shares will not be voted if you do not vote using one of the methods described in the section above
entitled “How Do I Vote and When is the Deadline for Voting?” in advance of the deadline.
If
your shares are held in street name, and you do not provide voting instructions to the bank, broker or other nominee that holds your
shares as described above under “How Do I Vote and When is the Deadline for Voting?,” the bank, broker or other nominee may
exercise discretionary authority to vote on routine proposals, but may not vote on non-routine proposals. If your bank, broker or nominee
votes on a routine proposal, the shares that cannot be voted on non-routine matters by the bank, broker or nominee that holds your shares
are called broker non-votes. Broker non-votes will be deemed present at the Special Meeting for purposes of determining whether a quorum
exists for the Special Meeting.
We
encourage you to provide voting instructions to the bank, broker or other nominee that holds your shares. This ensures your shares will
be voted at the Special Meeting in the manner you desire.
May
I Revoke My Proxy?
If
you give a proxy, you may revoke your proxy at any time before the Special Meeting in any one of the following ways:
| |
● |
signing
a new proxy card, and submitting it as instructed above in advance of the deadline; |
| |
● |
notifying
the Company’s Secretary in writing before the Special Meeting that you have revoked your proxy; or |
| |
● |
attending
the Special Meeting via the live webcast and voting if you are a stockholder of record (attending the Special Meeting via the live
webcast will not in and of itself revoke a previously submitted proxy unless you specifically request it). |
What
If I Receive More Than One Proxy Card?
You
may receive more than one proxy card or voting instruction form if you hold your shares in more than one account, which may be in registered
form or held in street name. Please vote in the manner described under “How Do I Vote and When is the Deadline for Voting?”
for each account to ensure that all of your shares are voted.
What
Vote is Required to Approve Each Proposal?
Proposal
1, the Reverse Stock Split Proposal: The approval of the Reverse Stock Split Proposal requires the affirmative vote of the majority
of votes cast by the holders of our Common Stock present in person (via live webcast) or represented by proxy at the Special Meeting
and entitled to vote on the proposal, assuming the presence of a quorum and if the shares of Common Stock meet the listing requirements
of the Nasdaq Stock Market relating to the minimum number of holders immediately after the Reverse Stock Split becomes effective.
Proposal
2, the Adjournment Proposal: The approval of the Adjournment Proposal requires the affirmative vote of the majority of the votes
cast by the holders of our Common Stock present in person (via live webcast) or represented by proxy at the Special Meeting and entitled
to vote on the proposal.
What
is a Quorum and How are Votes Counted?
We
need a quorum of stockholders to hold our Special Meeting. The presence, in person (via live webcast) or by proxy, of the holders of
a majority of the outstanding shares of Common Stock entitled to vote at the Special Meeting is necessary to constitute a quorum to transact
business. Your shares will be counted towards the quorum only if a valid proxy or vote is submitted with respect to such shares or you
attend the meeting in person (via live webcast). Shares represented by abstentions and broker non-votes, if any, will be counted
in determining whether there is a quorum for the Special Meeting.
An
abstention is (i) the voluntary act of not voting by a stockholder who is present at a meeting and entitled to vote, or (ii) selecting,
or authoring a proxy holder to select, “abstain” with respect to a proposal submitted at the Special Meeting. A broker “non-vote”
occurs when a proxy submitted by a broker does not indicate a vote for some or all of the proposals because the broker does not have
discretionary voting authority on certain types of proposals that are non-routine matters and has not received instructions from its
customer regarding how to vote on a particular proposal. Brokers that hold shares of common stock in “street name” for customers
that are the beneficial owners of those shares may generally vote on routine matters. However, brokers generally do not have discretionary
voting power (i.e., they cannot vote) on non-routine matters without specific instructions from their customers. Each of the Reverse
Stock Split Proposal and the Adjournment Proposal constitutes a routine matter for which brokers have discretionary voting power.
Votes
will be counted by Broadridge Financial Solutions, Inc., the inspector of election appointed for the Special Meeting, who will separately
count “For” and “Against” votes, abstentions and broker non-votes, if any. Abstentions and broker non-votes
will not be counted towards the vote total for any proposal. Because abstentions and broker non-votes are not counted as votes cast,
they will not affect the outcome of the vote on Proposal 1 or Proposal 2.
Will
choosing not to vote my shares have the same effect as casting a vote against the Reverse Stock Split Proposal or the Adjournment
Proposal?
No.
If you prefer that the Reverse Stock Split Proposal or any Adjournment Proposal not be approved, you should cast your vote against the
proposal. Approval of each of the Reverse Stock Split Proposal and the Adjournment Proposal requires the affirmative vote
of the majority of votes cast by the holders of our Common Stock present in person (via live webcast) or represented by proxy
at the Special Meeting and entitled to vote on the proposal, assuming a quorum is present.
How
is the Company soliciting proxies?
We
are soliciting proxies on behalf of our Board of Directors and will pay all expenses associated with this solicitation. In addition to
mailing these proxy materials, certain of our officers and other employees may, without compensation other than their regular compensation,
solicit proxies through further mailing or personal conversations, or by telephone, facsimile or other electronic means. We will also,
upon request, reimburse brokers and other persons holding stock in their names, or in the names of nominees, for their reasonable out-of-pocket
expenses for forwarding proxy materials to the beneficial owners of our stock and to obtain proxies.
How
Can I Find Out the Results of the Voting at the Special Meeting?
Preliminary
voting results will be announced at the Special Meeting. Final voting results will be published in a Current Report on Form 8-K to be
filed with the SEC within four business days after the Special Meeting.
Attending
the Special Meeting
The
Special Meeting will be held on December 18, 2023 at 11:00 AM Pacific time via live webcast. We adopted a virtual format for our
Special Meeting to make participation more convenient, safe and accessible for our stockholders regardless of their location.
You
are entitled to participate in the Special Meeting if you were a stockholder as of the close of business on our record date of October
23, 2023 or hold a valid proxy for the meeting. To be admitted to the Special Meeting’s live webcast, you must enter your control
number.
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The
following table sets forth certain information known to us regarding beneficial ownership of our capital stock as of October 23,
2023 by:
| |
● |
each
person, or group of affiliated persons, known by us to be the beneficial owner of more than 5% of our capital stock; |
| |
|
|
| |
● |
our
named executive officers; |
| |
|
|
| |
● |
each
of our directors; and |
| |
|
|
| |
● |
all
of our executive officers and directors as a group. |
Beneficial
ownership is determined in accordance with the rules of the SEC. A person is deemed to be a beneficial holder of our capital stock if
that person has or shares voting power, which includes the power to vote or direct the voting of our capital stock, or investment power,
which includes the power to dispose of or to direct the disposition of such capital stock. Except as noted by footnote, and subject to
community property laws where applicable, we believe based on the information provided to us that the persons and entities named in the
table below have sole voting and investment power with respect to all capital stock shown as beneficially owned by them.
The
table lists applicable percentage ownership based on 41,477,120 shares of common stock outstanding as of October 23, 2023. Unless
otherwise noted below, the address of each person listed on the table is c/o GT Biopharma, Inc., 8000 Marina Boulevard, Suite 100, Brisbane,
California 94005.
In
computing the number of shares of common stock beneficially owned by a person and the percentage ownership of that person, we deemed
outstanding shares of common stock subject to preferred stock, options and warrants held by that person that are currently exercisable
or exercisable within 60 days after October 23, 2023. We did not deem these shares outstanding, however, for the purpose of computing
the percentage ownership of any other person.
| Name of Beneficial Owner | |
Number of Shares Beneficially Owned | | |
Percentage of Shares Outstanding | |
| Greater than 5% Stockholders: | |
| | | |
| | |
Cytovance Biologics, Inc.
800 Research Parkway,
Suite 200
Oklahoma City, OK 73104 | |
| 2,755,817 | | |
| 6.6 | % |
| Executive Officers and Directors: | |
| | | |
| | |
| Michael
Breen (1) | |
| 1,364,551 | | |
| 3.3 | % |
| Manu Ohri
(2) | |
| 941,666 | | |
| 2.2 | % |
| Charles
J. Casamento (3) | |
| 291,666 | | |
| *
| |
| Rajesh Shrotriya, M.D. (4) | |
| 919,809 | | |
| 2.2 | % |
| Bruce Wendel (5) | |
| 910,988 | | |
| 2.2 | % |
| Directors and officers as a group (5 persons) (6) | |
| 4,428,680 | | |
| 10.0 | % |
| * |
Represents
beneficial ownership of less than one percent of our outstanding Common Stock. |
| (1) |
Includes
shares underlying options to purchase 508,333 shares of common stock. |
| (2) |
Includes
shares underlying options to purchase 591,666 shares of common stock. |
| (3) |
Consists
of options to purchase 291,666 shares of common stock. |
| (4) |
Consists
of shares options to purchase 919,809 shares of common stock. |
| (5) |
Includes
shares underlying options to purchase 558,333 shares of common stock. |
| (6) |
Includes
shares underlying options to purchase 2,869,807 shares of common stock. |
PROPOSAL
1
APPROVAL
OF AN AMENDMENT TO OUR SECOND RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED, TO EFFECT THE REVERSE STOCK SPLIT
Our
second restated certificate of incorporation, as amended (the “Charter”), currently authorizes the Company to issue
a total of 250,000,000 shares of Common Stock and 15,000,000 shares of Preferred Stock. On October 23, 2023, subject to stockholder
approval, our Board approved an amendment to our Charter to, at the discretion of the Board in the event they deem it necessary,
effect the Reverse Stock Split of our Common Stock at a ratio of 1-for-5 to 1-for-30, including any shares held by the Company
as treasury shares, at any time prior to February 20, 2024, with the exact ratio within such Range to be determined by our Board at its
discretion without further approval or authorization of our stockholders and included in a public announcement. The primary goal of the
Reverse Stock Split is to increase the per share market price of our Common Stock to meet the minimum per share bid price requirements
for continued listing on The Nasdaq Capital Market. We believe that a range of Reverse Stock Split ratios provides us with the most flexibility
to achieve the desired results of the Reverse Stock Split. The Reverse Stock Split is not intended as, and will not have the effect of,
a “going private transaction” covered by Rule 13e-3 promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). The Reverse Stock Split is not intended to modify the rights of existing stockholders in any material
respect.
If
the Reverse Stock Split Proposal is approved by our stockholders and the Reverse Stock Split is effected, there will be no fractional
shares issued as a result of the Reverse Stock Split. In lieu thereof, the aggregate of all fractional shares otherwise issuable to the
holders of record of old common stock will be issued to the Company’s transfer agent, as exchange agent, for the accounts
of all holders of record of old common stock otherwise entitled to have a fraction of a share issued to them. The sale of all fractional
interests will be effected by the exchange agent as soon as practicable after the effective time of the Reverse Stock Split on
the basis of prevailing market prices of the applicable new common stock. After such sale, the exchange agent will pay to such
holders of record their pro rata share of the net proceeds derived from the sale of the fractional interests.
The
Reverse Stock Split, if effected, will not change the number of authorized shares of our Common Stock or Preferred Stock, or the par
value of our Common Stock or Preferred Stock.
The
actual timing for implementation of the Reverse Stock Split would be determined by the Board based upon its evaluation as to when such
action would be most advantageous to the Company and its stockholders, but must be implemented before February 20, 2024. Notwithstanding
approval of the Reverse Stock Split Proposal by our stockholders, the Board will have the sole authority to elect whether or not and
when to amend our Charter to effect the Reverse Stock Split. If the Reverse Stock Split Proposal is approved by our stockholders, the
Board will make a determination as to whether effecting the Reverse Stock Split is in the best interests of the Company and its stockholders
in light of, among other things, our ability to increase the trading price of our Common Stock to meet the minimum bid price standards
of The Nasdaq Capital Market without effecting the Reverse Stock Split, the per share price of the Common Stock immediately prior to
the Reverse Stock Split and the expected stability of the per share price of the Common Stock following the Reverse Stock Split. If the
Board determines that it is in the best interests of the Company and its stockholders to effect the Reverse Stock Split, it will hold
a Board meeting to determine the ratio of the Reverse Stock Split. For additional information concerning the factors the Board will consider
in deciding whether to effect the Reverse Stock Split, see “— Determination of the Reverse Stock Split Ratio”
and “— Board Discretion to Effect the Reverse Stock Split.”
The
text of the proposed amendment to our Charter to effect the Reverse Stock Split is included as Annex A to this proxy statement
(the “Reverse Stock Split Charter Amendment”). If the Reverse Stock Split Proposal is approved by our stockholders, we will
have the authority to file the Reverse Stock Split Charter Amendment with the Secretary of State of the State of Delaware, which will
become effective upon its filing or the effective time set forth in the Reverse Stock Split Charter Amendment. The Board has determined
that the amendment is advisable and in the best interests of the Company and its stockholders and has submitted the amendment for consideration
by our stockholders at the Special Meeting.
Reasons
for the Reverse Stock Split
We
are submitting this proposal to our stockholders for approval in order to increase the trading price of our Common Stock to meet the
minimum per share bid price requirement for continued listing on The Nasdaq Capital Market. We believe increasing the trading price of
our Common Stock may also assist in our capital-raising efforts by making our Common Stock more attractive to a broader range of investors.
Accordingly, we believe that the Reverse Stock Split is in our stockholders’ best interests.
We
believe that the Reverse Stock Split, if necessary, is our best option to meet the criteria to satisfy the minimum per share bid price
requirement for continued listing on The Nasdaq Capital Market. The Nasdaq Capital Market requires, among other criteria, that the Company
maintain of a continued price of at least $1.00 per share. On the record date, the last reported sale price of our Common Stock on The
Nasdaq Capital Market was $0.242 per share. A decrease in the number of outstanding shares of our Common Stock resulting from
the Reverse Stock Split should, absent other factors, assist in ensuring that the per share market price of our Common Stock remains
above the requisite price for continued listing. However, we cannot provide any assurance that our minimum bid price would remain over
the minimum bid price requirement of The Nasdaq Capital Market following the Reverse Stock Split.
In
addition, as noted above, we believe that the Reverse Stock Split and the resulting increase in the per share price of our Common Stock
could encourage increased investor interest in our Common Stock and promote greater liquidity for our stockholders. A greater price per
share of our Common Stock could allow a broader range of institutions to invest in our Common Stock (namely, funds that are prohibited
or discouraged from buying stocks with a price below a certain threshold), potentially increasing marketability, trading volume and liquidity
of our Common Stock. Many institutional investors view stocks trading at low prices as unduly speculative in nature and, as a result,
avoid investing in such stocks. We believe that the Reverse Stock Split will provide flexibility to make our Common Stock a more attractive
investment for these institutional investors, which we believe will enhance the liquidity for the holders of our Common Stock and may
facilitate future sales of our Common Stock. The Reverse Stock Split could also increase interest in our Common Stock for analysts and
brokers who may otherwise have policies that discourage or prohibit them in following or recommending companies with low stock prices.
Additionally, because brokers’ commissions on transactions in low-priced stocks generally represent a higher percentage of the
stock price than commissions on higher-priced stocks, the current average price per share of our Common Stock can result in individual
stockholders paying transaction costs representing a higher percentage of their total share value than would be the case if the share
price were substantially higher.
Risks
Associated with the Reverse Stock Split
The
Reverse Stock Split May Not Increase the Price of our Common Stock over the Long-Term. As noted above, the principal purpose
of the Reverse Stock Split is to increase the trading price of our Common Stock to meet the minimum stock price standards of The Nasdaq
Capital Market. However, the effect of the Reverse Stock Split on the market price of our Common Stock cannot be predicted with any certainty,
and we cannot assure you that the Reverse Stock Split will accomplish this objective for any meaningful period of time, or at all. While
we expect that the reduction in the number of outstanding shares of Common Stock will proportionally increase the market price of our
Common Stock, we cannot assure you that the Reverse Stock Split will increase the market price of our Common Stock by a multiple of the
Reverse Stock Split ratio, or result in any permanent or sustained increase in the market price of our Common Stock. The market price
of our Common Stock may be affected by other factors which may be unrelated to the number of shares outstanding, including our business
and financial performance, general market conditions, and prospects for future success.
The
Reverse Stock Split May Decrease the Liquidity of our Common Stock. The Board believes that the Reverse Stock Split may result
in an increase in the market price of our Common Stock, which could lead to increased interest in our Common Stock and possibly promote
greater liquidity for our stockholders. However, the Reverse Stock Split will also reduce the total number of outstanding shares of Common
Stock, which may lead to reduced trading and a smaller number of market makers for our Common Stock, particularly if the price per share
of our Common Stock does not increase as a result of the Reverse Stock Split.
The
Reverse Stock Split May Result in Some Stockholders Owning “Odd Lots” That May Be More Difficult to Sell or Require Greater
Transaction Costs per Share to Sell. If the Reverse Stock Split is implemented, it will increase the number of stockholders who
own “odd lots” of less than 25 shares of Common Stock. A purchase or sale of less than 25 shares of Common Stock (an “odd
lot” transaction) may result in incrementally higher trading costs through certain brokers, particularly “full service”
brokers. Therefore, those stockholders who own fewer than 25 shares of Common Stock following the Reverse Stock Split may be required
to pay higher transaction costs if they sell their Common Stock.
The
Reverse Stock Split May Lead to a Decrease in our Overall Market Capitalization. The Reverse Stock Split may be viewed negatively
by the market and, consequently, could lead to a decrease in our overall market capitalization. If the per share market price of our
Common Stock does not increase in proportion to the Reverse Stock Split ratio, then the value of our Company, as measured by our market
capitalization, will be reduced. Additionally, any reduction in our market capitalization may be magnified as a result of the smaller
number of total shares of Common Stock outstanding following the Reverse Stock Split.
Effects
of the Reverse Stock Split
Effects
of the Reverse Stock Split on Issued and Outstanding Shares. If the Reverse Stock Split is effected, it will reduce the total
number of issued and outstanding shares of Common Stock, including any shares held by the Company as treasury shares, by a Reverse Stock
Split ratio of 1-for-5 to 1-for-30. Accordingly, each of our stockholders will own fewer shares of Common Stock as a result of
the Reverse Stock Split. If the Reverse Stock Split Proposal is approved by our stockholders and the Reverse Stock Split is effected,
there will be no fractional shares issued as a result of the Reverse Stock Split. In lieu thereof, the aggregate of all fractional shares
otherwise issuable to the holders of record of old common stock will be issued to the Company’s transfer agent, as exchange
agent, for the accounts of all holders of record of old common stock otherwise entitled to have a fraction of a share issued to them.
The sale of all fractional interests will be effected by the exchange agent as soon as practicable after the effective time of
the Reverse Stock Split on the basis of prevailing market prices of the applicable new common stock. After such sale, the exchange
agent will pay to such holders of record their pro rata share of the net proceeds derived from the sale of the fractional interests.
Common Stock issued pursuant to the Reverse Stock Split will remain fully paid and nonassessable, and the par value per share of common
stock will remain $0.001.
As
of the record date, 41,477,120 shares of our Common Stock were outstanding and no shares of our Preferred Stock were outstanding. For
purposes of illustration, if the Reverse Stock Split is effected at a ratio of 1-for-30, the number of issued and outstanding shares
of Common Stock after the Reverse Stock Split would be approximately 1,382,571 shares.
Effects
of the Reverse Stock Split on Outstanding Equity Awards and Plans. If the Reverse Stock Split is effected, the terms of equity
awards granted under our 2014 Stock Incentive Plan (the “2014 Plan”) and 2022 Omnibus Incentive Plan, (collectively the “Equity
Plans”), including the per share exercise price of options and the number of shares issuable under such options, will be proportionally
adjusted to maintain their economic value, subject to adjustments for any fractional shares as described herein. In addition, the total
number of shares of Common Stock that may be the subject of future grants under the Equity Plans, as well as any plan limits on the size
of such grants will be adjusted and proportionately decreased as a result of the Reverse Stock Split.
Effects
of the Reverse Stock Split on Voting Rights. Proportionate voting rights and other rights of the holders of Common Stock would
not be affected by the Reverse Stock Split (except for the effect of cash sale in lieu of fractional shares). For example, a holder of
1% of the voting power of the outstanding Common Stock immediately prior to the effective time of the Reverse Stock Split would continue
to hold 1% of the voting power of the outstanding Common Stock after the Reverse Stock Split (except for the effect of cash sale in lieu
of fractional shares).
Effects
of the Reverse Stock Split on Regulatory Matters. We are subject to the periodic reporting and other requirements of the Exchange
Act. The Reverse Stock Split will not affect our obligation to publicly file financial and other information with the SEC.
Effects
of the Reverse Stock Split on Authorized Share Capital. The total number of shares of capital stock that we are authorized to
issue will not be affected by the Reverse Stock Split and will remain at 265,000,000 shares, consisting of 250,000,000,000 shares
of Common Stock and 15,000,000,000 shares of Preferred Stock.
Effects
of the Reverse Stock Split on the Number of Shares of Common Stock Available for Future Issuance. By reducing the number of shares
outstanding without reducing the number of shares of available but unissued Common Stock, the Reverse Stock Split will increase the number
of authorized but unissued shares. The Board believes the increase is appropriate for use to fund the future operations of the Company.
Although the Company does not have any pending acquisitions for which shares are expected to be used, the Company may also use authorized
shares in connection with the financing of future acquisitions.
Although
the Reverse Stock Split would not have any dilutive effect on our stockholders, the Reverse Stock Split without a reduction in the number
of shares authorized for issuance would reduce the proportion of shares owned by our stockholders relative to the number of shares authorized
for issuance, giving the Board an effective increase in the authorized shares available for issuance, in its discretion. The Board from
time to time may deem it to be in the best interests of the Company to enter into transactions and other ventures that may include the
issuance of shares of our common stock. If the Board authorizes the issuance of additional shares subsequent to the Reverse Stock Split,
the dilution to the ownership interest of our existing stockholders may be greater than would occur had the Reverse Stock Split not been
effected.
Treatment
of Fractional Shares in the Reverse Stock Split
The
Company will not issue fractional shares for post-reverse stock split shares in connection with the Reverse Stock Split. In lieu
of issuing fractional shares, the aggregate of all fractional shares otherwise issuable to the holders of record of old common stock
will be issued to the Company’s transfer agent, as exchange agent, for the accounts of all holders of record of old common
stock otherwise entitled to have a fraction of a share issued to them. The sale of all fractional interests will be effected by the exchange
agent as soon as practicable after the effective time of the Reverse Stock Split on the basis of prevailing market prices of the
applicable new common stock. After such sale, the exchange agent will pay to such holders of record their pro rata share of the
net proceeds derived from the sale of the fractional interests.
Determination
of the Reverse Stock Split Ratio
The
Board believes that stockholder approval of a range of potential Reverse Stock Split ratios is in the best interests of our Company and
stockholders because it is not possible to predict market conditions at the time the Reverse Stock Split would be implemented. We believe
that a range of Reverse Stock Split ratios provides us with the most flexibility to achieve the desired results of the Reverse Stock
Split. The Reverse Stock Split ratio to be selected by our Board will be not more than 1-for-30.
The
selection of the specific Reverse Stock Split ratio will be based on several factors, including, among other things:
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ability to maintain the listing of our Common Stock on The Nasdaq Capital Market; |
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per share price of our Common Stock immediately prior to the Reverse Stock Split; |
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the
expected stability of the per share price of our Common Stock following the Reverse Stock Split; |
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the
likelihood that the Reverse Stock Split will result in increased marketability and liquidity of our Common Stock; |
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prevailing
market conditions; |
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economic conditions in our industry; and |
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market capitalization before and after the Reverse Stock Split. |
We
believe that granting our Board the authority to set the ratio for the Reverse Stock Split is essential because it allows us to take
these factors into consideration and to react to changing market conditions. If the Board chooses to implement the Reverse Stock Split,
we will make a public announcement regarding the determination of the Reverse Stock Split ratio.
Board
Discretion to Effect the Reverse Stock Split
If
the Reverse Stock Split Proposal is approved by our stockholders, the Reverse Stock Split will only be effected upon a determination
by the Board, in its sole discretion in the event deemed necessary, that filing the Reverse Stock Split Charter Amendment to effect
the Reverse Stock Split is in the best interests of our Company and stockholders. This determination by the Board will be based upon
a variety of factors, including those discussed under “— Determination of the Reverse Stock Split Ratio” above.
We expect that the primary focus of the Board in determining whether or not to file the Reverse Stock Split Charter Amendment will be
whether we will be able to obtain and maintain of a continued price of at least $1.00 per share of our Common Stock on The Nasdaq Capital
Market without effecting the Reverse Stock Split.
Effective
Time of the Reverse Stock Split
If
the Reverse Stock Split Proposal is approved by our stockholders, the Reverse Stock Split would become effective, if at all, when the
Reverse Stock Split Charter Amendment is filed with the office of the Secretary of State of the State of Delaware or at the effective
time set forth in the Reverse Stock Split Charter Amendment. However, notwithstanding approval of the Reverse Stock Split Proposal by
our stockholders, the Board will have the sole authority to elect whether or not and when to amend our Charter to effect the Reverse
Stock Split; provided, however, the implementation of such amendment shall be before February 20, 2024.
Mechanics
of the Reverse Stock Split
If
the Reverse Stock Split is approved and effected, beginning on the effective date of the Reverse Stock Split, each certificate representing
pre-split shares will, until surrendered and exchanged as described below, for all corporate purposes, be deemed to represent, respectively,
only the number of post-split shares.
Exchange
of Stock Certificates
Shortly
after the Reverse Stock Split becomes effective, stockholders will be notified and offered the opportunity at their own expense to surrender
their current certificates to our stock transfer agent in exchange for the issuance of new certificates reflecting the Reverse Stock
Split in accordance with the procedures to be set forth in a letter of transmittal to be sent by our stock transfer agent. In connection
with the Reverse Stock Split, the CUSIP number for the common stock will change from its current CUSIP number. This new CUSIP number
will appear on any new stock certificates issued representing post-split shares. STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S)
AND SHOULD NOT SUBMIT ANY STOCK CERTIFICATE(S) UNLESS AND UNTIL REQUESTED TO DO SO FOLLOWING THE ANNOUNCEMENT OF THE COMPLETION OF THE
REVERSE STOCK SPLIT.
Effect
on Registered “Book-Entry” Holders of Common Stock
Holders
of Common Stock may hold some or all of their Common Stock electronically in book-entry form (“street name”) under the direct
registration system for securities. These stockholders will not have stock certificates evidencing their ownership. They are, however,
provided with a statement reflecting the number of shares of Common Stock registered in their accounts. If you hold registered Common
Stock in book-entry form, you do not need to take any action to receive your post-split shares, if applicable.
Appraisal
Rights
Under
the Delaware General Corporation Law, our stockholders are not entitled to appraisal or dissenter’s rights with respect to the
Reverse Stock Split, and we will not independently provide our stockholders with any such rights.
Regulatory
Approvals
The
Reverse Stock Split will not be consummated, if at all, until after approval of our stockholders is obtained. We are not obligated to
obtain any governmental approvals or comply with any state or federal regulations in order to effect the Reverse Stock Split other than
the filing of the Reverse Stock Split Charter Amendment with the Secretary of State of the State of Delaware.
Accounting
Treatment of the Reverse Stock Split
If
the Reverse Stock Split is effected, the par value per share of our Common Stock will remain unchanged at $0.001. Accordingly, on the
effective date of the Reverse Stock Split, the stated capital on our consolidated balance sheets attributable to our Common Stock will
be reduced in proportion to the size of the Reverse Stock Split ratio, and the additional paid-in-capital account will be increased by
the amount by which the stated capital is reduced. Our stockholders’ equity, in the aggregate, will remain unchanged. Per share
net income or loss will be increased because there will be fewer shares of Common Stock outstanding. Any Common Stock held in treasury
will be reduced in proportion to the Reverse Stock Split ratio. The Company does not anticipate that any other accounting consequences,
including changes to the amount of stock-based compensation expense to be recognized in any period, will arise as a result of the Reverse
Stock Split.
Certain
U.S. Federal Income Tax Consequences of the Reverse Stock Split
The
following discussion is a summary of certain material U.S. federal income tax considerations of the Reverse Stock Split applicable to
U.S. holders (as defined below). This discussion does not purport to be a complete analysis of all potential tax consequences that may
be relevant to a U.S. holder. The effects of U.S. federal tax laws other than U.S. federal income tax laws, such as estate and gift tax
laws, and any applicable state, local or non-U.S. tax laws are not discussed. This discussion is based on the U.S. Internal Revenue Code
of 1986, as amended (the “Code”), Treasury Regulations promulgated thereunder, judicial decisions, and published rulings
and administrative pronouncements of the IRS, in each case in effect as of the date hereof. These authorities may change or be subject
to differing interpretations. Any such change or differing interpretation may be applied retroactively in a manner that could adversely
affect a U.S. holder. We have not sought and do not intend to seek any rulings from the IRS regarding the matters discussed below. There
can be no assurance the IRS or a court will not take a position contrary to that discussed below regarding the tax consequences of the
Reverse Stock Split.
This
discussion is limited to U.S. holders that hold Common Stock as a “capital asset” within the meaning of Section 1221 of the
Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to
a U.S. holder’s particular circumstances, including the impact of the alternative minimum tax, the rules related to “qualified
small business stock” within the meaning of Section 1202 of the Code or the Medicare contribution tax on net investment income.
In addition, it does not address consequences relevant to U.S. holders subject to special rules, including, without limitation:
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U.S.
expatriates and former citizens or long-term residents of the United States; |
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U.S.
holders whose functional currency is not the U.S. dollar; |
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Persons
holding Common Stock as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other
integrated investment; |
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banks,
insurance companies, and other financial institutions; |
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real
estate investment trusts or regulated investment companies; |
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brokers,
dealers or traders in securities; |
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corporations
that accumulate earnings to avoid U.S. federal income tax; |
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corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors
therein); |
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tax-exempt
organizations or governmental organizations; |
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persons deemed to sell Common Stock
under the constructive sale provisions of the Code; and |
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persons who hold or received Common
Stock pursuant to the exercise of any employee stock option or otherwise as compensation;
and tax-qualified retirement plans. |
If
an entity treated as a partnership for U.S. federal income tax purposes holds Common Stock, the tax treatment of a partner in the partnership
will generally depend on the status of the partner, the activities of the partnership and certain determinations made at the partner
level. Accordingly, partnerships holding Common Stock and the partners in such partnerships should consult their tax advisors regarding
the U.S. federal income tax consequences to them.
THIS
DISCUSSION IS FOR INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION
OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT ARISING
UNDER THE U.S. FEDERAL ESTATE OR GIFT TAX LAWS OR UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE
INCOME TAX TREATY.
The
Reverse Stock Split should constitute a “recapitalization,” a form of nontaxable reorganization, for U.S. federal
income tax purposes. As a result, a U.S. holder of Common Stock generally should not recognize gain or loss with respect to shares
of Common Stock received in the Reverse Stock Split. A U.S. holder’s aggregate tax basis in the shares of Common Stock received
pursuant to the Reverse Stock Split should equal the aggregate tax basis of the shares of the Common Stock surrendered, and such U.S.
holder’s holding period in the shares Common Stock received should include the holding period in the shares of Common Stock surrendered.
Treasury Regulations provide detailed rules for allocating the tax basis and holding period of the shares of Common Stock surrendered
to the shares of Common Stock received in a recapitalization pursuant to the Reverse Stock Split. U.S. holders of shares of Common Stock
acquired on different dates and at different prices should consult their tax advisors regarding the allocation of the tax basis and holding
period of such shares.
As
noted above, we will not issue fractional shares in connection with the Reverse Stock Split. In lieu thereof, the aggregate of all fractional
shares otherwise issuable to the holders of record of old common stock will be issued to the Company’s transfer agent, as exchange
agent, for the accounts of all holders of record of old common stock otherwise entitled to have a fraction of a share issued to them.
The sale of all fractional interests will be effected by the exchange agent as soon as practicable after the effective time of
the Reverse Stock Split on the basis of prevailing market prices of the applicable new common stock. After such sale, the exchange
agent will pay to such holders of record their pro rata share of the net proceeds derived from the sale of the fractional interests.
A holder of record for whom the exchange agent sold fractional shares will have gain (or loss) in the amount that the net proceeds
of such a sale exceeds (or is less than) the holder’s adjusted tax basis in the shares sold.
Vote
Required
Pursuant
to the Delaware General Corporation Law and our organizational documents, the affirmative vote of the majority of votes cast by
the holders of our Common Stock present in person (via live webcast) or represented by proxy at the Special Meeting and
entitled to vote on the proposal is required to approve the Reverse Stock Split Proposal, assuming the presence of a quorum and if
the shares of Common Stock meet the listing requirements of the Nasdaq Stock Market relating to the minimum number of holders immediately
after the Reverse Stock Split becomes effective.
Our
Recommendation
THE
BOARD UNANIMOUSLY RECOMMENDS A VOTE “FOR” THE PROPOSAL TO AMEND OUR SECOND RESTATED CERTIFICATE OF INCORPORATION, AS AMENDED,
TO EFFECT THE REVERSE STOCK SPLIT.
PROPOSAL
2
TO
APPROVE THE ADJOURNMENT OF THE SPECIAL MEETING, IF NECESSARY, TO ESTABLISH A QUORUM AND/OR SOLICIT ADDITIONAL PROXIES IF THERE
ARE INSUFFICIENT VOTES AT THE TIME OF THE
SPECIAL
MEETING TO APPROVE THE REVERSE STOCK SPLIT PROPOSAL
Background
of and Rationale for the Adjournment Proposal
In
the Adjournment Proposal, we are asking stockholders to authorize the holder of any proxy solicited by the Board to vote in favor of
adjourning the Special Meeting from time to time to a later date or dates if there are not sufficient votes at the Special
Meeting or any adjournment thereof to establish a quorum or approve the Reverse Stock Split Proposal. If our stockholders
approve this proposal, we could adjourn the Special Meeting, and any adjourned session of the Special Meeting, to use the additional
time to establish a quorum and/or solicit additional proxies in favor of the Reverse Stock Split Proposal.
Vote
Required
The
approval of the Adjournment Proposal requires the affirmative vote of the majority of the votes cast by the holders of our Common Stock
present in person (via live webcast) or represented by proxy at the Special Meeting and entitled to vote on the proposal.
Board
Recommendation
THE
BOARD RECOMMENDS A VOTE “FOR” THE ADJOURNMENT OF THE SPECIAL MEETING FROM TIME TO TIME TO A LATER DATE OR DATES, IF
NECESSARY, TO ESTABLISH A QUORUM AND/OR SOLICIT ADDITIONAL PROXIES IF THERE ARE INSUFFICIENT VOTES AT THE TIME OF THE SPECIAL
MEETING TO APPROVE THE REVERSE STOCK SPLIT PROPOSAL.
STOCKHOLDER
PROPOSALS AND NOMINATIONS
In
order for a stockholder proposal (other than nominations by stockholders of persons for election to our Board of Directors) to
be considered for inclusion in our Proxy Statement for our 2024 annual meeting of stockholders, the stockholder’s
written proposal must be received by us no earlier than February 29, 2024 but no later than March 30, 2024, and must
contain the information required by our Amended and Restated Bylaws. However, if the date of our 2024 annual meeting of
stockholders is more than 30 days before or after June 28, 2024, the first anniversary of this year’s Annual Meeting, stockholders
must give us notice of such stockholder proposals not earlier than the 120th day prior to such annual meeting and not later
than the close of business on the later of the 90th day prior to such annual meeting or, if the first public announcement
of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following
the day on which we publicly announce the date of such annual meeting. In order for a stockholder proposal nominating persons for election
to our Board of Directors to be considered for inclusion in our Proxy Statement for our 2024 annual meeting of stockholders, the stockholder
must expressly elect at the time of providing notice of the proposal to have its nominee included in our proxy materials, and the stockholder’s
written proposal must be received by us no earlier than December 14, 2023 but no later than January 13, 2024, and should contain the
information required by our Amended and Restated Bylaws. If the date of next year’s annual meeting is moved more than 30 days
before or after June 28, 2024, the first anniversary of this year’s Annual Meeting, the deadline for inclusion of proposals
nominating persons for election to our Board of Directors in our Proxy Statement is not later than the close of business on the later
of 120 days in advance of such annual meeting or 10 days following the day on which we publicly disclose the date of such annual meeting.
In order for stockholders to give timely notice of nominations for directors, other than our nominees, for inclusion on a universal proxy
card in connection with the 2024 annual meeting of stockholders, notice must be submitted to us at our principal executive offices, located
at 8000 Marina Boulevard, Suite 100, Brisbane, California 94005, Attn: Corporate Secretary, no later than April 29, 2024, which is 60
calendar days prior to the one-year anniversary of the date of the Annual Meeting, and must comply with the requirements of Rule 14a-19.
Any proposals will also need to comply with Rules 14a-8 and 14a-19 of the rules and regulations promulgated
under the Exchange Act regarding the inclusion of stockholder proposals in company sponsored proxy materials.
Proposals should be addressed to our Secretary at our principal executive offices.
If
you intend to present a proposal at our 2024 annual meeting of stockholders and the proposal is not intended to be included in
our Proxy Statement relating to that meeting, you must give us advance notice of the proposal in accordance with our Amended and
Restated Bylaws. Pursuant to our Amended and Restated Bylaws, in order for a stockholder proposal to be deemed properly presented
in these circumstances, a stockholder must deliver notice of the proposal to our Secretary, at our principal executive offices, no earlier
than February 29, 2024 but no later than March 30, 2024. However, if the date of our 2024 annual meeting of stockholders
is more than 30 days before or after June 28, 2024, the first anniversary of this year’s Annual Meeting, stockholders must
give us notice of any stockholder proposals not earlier than the 120th day prior to such annual meeting and not later than
the close of business on the later of the 90th day prior to such annual meeting or, if the first public announcement of the
date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day following the day
on which we publicly announce the date of such annual meeting. If a stockholder does not provide us with notice of a stockholder
proposal in accordance with the deadlines described above, the stockholder will not be permitted to present the proposal to the stockholders
for a vote at the meeting. If the stockholder does not also comply with the requirements of Rule 14a-4(c)(2) under the Exchange
Act, we may exercise discretionary voting authority under proxies that we solicit to vote in accordance with our
best judgment on any such stockholder proposal or nomination.
OTHER
MATTERS
As
of the time of preparation of this proxy statement, neither the Board nor management intends to bring before the meeting any business
other than the matters referred to in the Notice of Special Meeting and this proxy statement. If any other business should properly come
before the meeting, or any adjournment thereof, the persons named in the proxy will vote on such matters according to their best judgment.
In addition, our Amended and Restated Bylaws permit the presiding officer at the Special Meeting to adjourn the meeting in his
or her sole discretion.
AVAILABILITY
OF CERTAIN DOCUMENTS
The
proxy materials for the Special Meeting are available via the Internet at www.proxyvote.com. Stockholders residing in the same household
who hold their stock through a bank or broker may receive only one set of proxy materials in accordance with a notice sent earlier by
their bank or broker unless we have received contrary instructions from one or more of the stockholders. This practice will continue
unless instructions to the contrary are received by your bank or broker from one or more of the stockholders within the household. We
will promptly deliver a separate copy of the proxy materials to such stockholders if you make a written or oral request to our corporate
secretary at the address above.
If
you hold your shares in “street name” and reside in a household that received only one copy of the proxy materials, you can
request to receive a separate copy in the future by following the instructions sent by your bank or broker. If your household is receiving
multiple copies of the proxy materials, you may request that only a single set of materials be sent by following the instructions sent
by your bank or broker by contacting us at the above address.
APPENDIX
A
CERTIFICATE
OF AMENDMENT
OF
SECOND
RESTATED
CERTIFICATE
OF INCORPORATION
OF
GT
BIOPHARMA, INC.
GT
Biopharma, Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the
“Corporation”), does hereby certify:
FIRST:
That the Board of Directors of the Corporation duly adopted a resolution by the unanimous written consent of its members proposing and
declaring fair, reasonable and advisable and in the best interest of the Company and its stockholders the following amendment to the
Second Restated Certificate of Incorporation of the Corporation (as amended, the “Certificate of Incorporation”) and
recommending that the stockholders of the Corporation consider and approve the resolution. The resolution setting forth the proposed
amendment is as follows:
RESOLVED,
that the Certificate of Incorporation be amended by replacing in its entirety the first paragraph of Article FOURTH so that, as amended,
the paragraph shall be and read as follows:
“I.
COMMON STOCK
Upon
this Certificate of Amendment becoming effective pursuant to the Delaware General Corporation Law (the “Effective Time”),
each [insert number between 5 and 30 inclusive, as approved by the Board] shares of Common Stock issued and outstanding (the “Old
Common Stock”) immediately prior to the Effective Time shall automatically without further action on the part of the Company or
any holder of Old Common Stock, be combined and changed into one (1) duly authorized, fully paid and non-assessable share of new common
stock (the “New Common Stock”) (the “Stock Combination”). From and after the Effective Time, certificates representing
Old Common Stock shall represent the number of whole shares of New Common Stock into which such Old Common Stock shall have been combined
pursuant to this Certificate of Amendment. There shall be no fractional shares issued with respect to New Common Stock. In lieu thereof,
the aggregate of all fractional shares otherwise issuable to the holders of record of Old Common Stock shall be issued to the Corporation’s
transfer agent (the “Exchange Agent”), as exchange agent, for the accounts of all holders of
record of Old Common Stock otherwise entitled to have a fraction of a share issued to them. The sale of all fractional interests will
be effected by the Exchange Agent as soon as practicable after the Effective Time on the basis of prevailing market prices of
the applicable New Common Stock at the time of sale. After such sale and upon the surrender of the stockholders’ stock certificates,
the Exchange Agent will pay to such holders of record their pro rata share of the net proceeds derived from the sale of the fractional
interests. After giving effect to the Stock Combination, the Company is authorized to issue a total of 250,000,000 shares of Common Stock,
$0.001 par value per share. Dividends may be paid on the Common Stock as, when and if declared by the Board of Directors, out
of any funds of the Company legally available for the payment of such dividends, and each share of Common Stock will be entitled to one
vote on all matters on which such stock is entitled to vote.”
SECOND: That thereafter pursuant to a resolution
of the Board of Directors of the Corporation, said amendment was submitted to the stockholders of the Corporation for their approval,
and was duly adopted in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.
IN
WITNESS WHEREOF, the undersigned authorized officer of the Corporation has executed this Certificate of Amendment to the Restated
Certificate of Incorporation as of [●], 202[●].
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GT
BIOPHARMA, INC. |
| |
|
|
| |
By: |
|
| |
Name: |
Michael
Breen |
| |
Title: |
Executive
Chairman of the Board and Interim Chief Executive Officer |
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