UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
20549
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SCHEDULE 14A
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Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934
(Amendment No. )
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Filed by the Registrant
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Filed by a Party other than the Registrant
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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 Pursuant to §240.14a-12
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Bluejay
Diagnostics, Inc.
(Name of Registrant
as Specified In Its Charter)
_______________________________________________________________
(Name of
Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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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
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Bluejay
Diagnostics, Inc.
360
Massachusetts Avenue, Suite 203
Acton, MA 01720
(844) 327-7078
To the
Stockholders of Bluejay Diagnostics, Inc.:
You are
cordially invited to attend the Annual Meeting of Stockholders of
Bluejay Diagnostics, Inc. on June 14, 2023. The Annual Meeting
will begin at 2:00 p.m. local time at the corporate offices of
Bluejay Diagnostics, Inc., 360 Massachusetts Avenue, Suite 203, Acton,
MA 01720.
Information
regarding each of the matters to be voted on at the Annual Meeting
is contained in the attached Proxy Statement and Notice of Annual
Meeting of Stockholders. We urge you to read the proxy statement
carefully. The proxy statement and proxy card are being mailed to
all stockholders of record as of May 10, 2023.
Because it is
important that your shares be voted at the Annual Meeting, we urge
you to complete, date and sign the enclosed proxy card and return
it as promptly as possible in the accompanying envelope, whether or
not you plan to attend in person. Even after returning your proxy,
if you are a stockholder of record and do attend the meeting and
wish to vote your shares in person, you still may do so.
We look
forward to seeing you on June 14, 2023.
Very truly
yours,
BLUEJAY
DIAGNOSTICS, INC.
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By:
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/s/ Neil Dey
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Neil
Dey
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Chief
Executive Officer
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Important
Notice Regarding the Availability of Proxy Materials
for the Annual Shareholder Meeting to be Held on
June
14,
2023:
Electronic
Copies of the Proxy Statement and our 2022 Annual Report on
Form 10-K are available at
https://www.cstproxy.com/bluejaydx/2023
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Bluejay Diagnostics, Inc.
360 Massachusetts Avenue, Suite 203
Acton, MA 01720
(844) 327-7078
NOTICE OF ANNUAL MEETING OF
STOCKHOLDERS
To
Be Held June 14,
2023
TO THE STOCKHOLDERS OF BLUEJAY DIAGNOSTICS, INC.:
NOTICE IS HEREBY GIVEN that the 2023 Annual Meeting of
Stockholders of Bluejay Diagnostics, Inc. (the “Company”) will be
held at the corporate offices at 360 Massachusetts Avenue, Suite
203, Acton, MA 01720, on June 14, 2023 at 2:00 p.m.,
Eastern Time, for the following purposes, as described in the
accompanying Proxy Statement:
Proposal 1. To
elect six Board nominees to the Board of Directors of the Company,
each to serve until the 2023 annual meeting of stockholders of the
Company or until such person’s successor is qualified and
elected.
Proposal 2. To
approve and adopt an Amendment to the Company’s Amended and
Restated Certificate of Incorporation to effect a reverse stock
split of the Company’s common stock and adjust the number of shares
authorized by the Amended and Restated Certificate of
Incorporation.
Proposal 3. To
ratify the appointment of Wolf & Company, P.C. as the
Company’s independent registered public accounting firm for the
year ending December 31, 2023.
Proposal 4. To
transact any other business that is properly brought before the
Annual Meeting or any adjournment or postponement thereof.
Only stockholders of record of the Company at the close of business
on May 10, 2023 are entitled to notice of and to vote at the
Annual Meeting or any adjournment or postponement thereof. A
complete list of these stockholders will be open for the
examination of any stockholder of record at the Company’s principal
executive offices located at 360 Massachusetts Avenue, Suite 203,
Acton, MA 01720 for a period of ten days prior to the
Annual Meeting. The list will also be available for the examination
of any stockholder of record present at the Annual Meeting. The
Annual Meeting may be adjourned or postponed from time to time
without notice other than by announcement at the meeting.
YOUR
VOTE IS VERY IMPORTANT. WHETHER OR NOT YOU PLAN TO ATTEND THE
MEETING, PLEASE SIGN AND DATE THE ENCLOSED PROXY AND RETURN IT IN
THE ENVELOPE PROVIDED.
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By Order of the Board of Directors,
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BLUEJAY DIAGNOSTICS, INC.
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/s/ Neil Dey
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Acton, Massachusetts
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Neil Dey
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May _, 2023
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Chief Executive Officer and Director
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BLUEJAY DIAGNOSTICS, INC.
PROXY
STATEMENT
FOR
ANNUAL MEETING
OF STOCKHOLDERS
To Be Held
June
14, 2023
INFORMATION ABOUT THE ANNUAL
MEETING AND VOTING
WHY DID YOU SEND ME THIS
PROXY STATEMENT?
This proxy statement and the enclosed proxy card are furnished in
connection with the solicitation of proxies by the Board of
Directors of Bluejay Diagnostics, Inc., a Delaware corporation, for
use at the Annual Meeting of Bluejay Diagnostics, Inc.’s
stockholders to be held at the 360 Massachusetts Avenue, Suite 203,
Acton, MA 01720, on June 14, 2023 at 2:00 p.m.,
local time, and at any adjournments or postponements of the Annual
Meeting. This proxy statement summarizes the information you need
to make an informed vote on the proposals to be considered at the
Annual Meeting. However, you do not need to attend the Annual
Meeting to vote your shares. Instead, you may simply complete, sign
and return the enclosed proxy card using the envelope provided. The
terms “Bluejay,” “Company,” “we,” or “our” refer to Bluejay
Diagnostics, Inc.
WHAT PROPOSALS WILL BE
ADDRESSED AT THE ANNUAL MEETING?
We will address the following proposals at the Annual Meeting:
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Proposal 1.
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To elect six Board nominees to the Board of Directors of the
Company, each to serve until the 2023 annual meeting of
stockholders of the Company or until such person’s successor is
qualified and elected.
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Proposal 2.
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To approve and adopt an Amendment to the Company’s Amended and
Restated Certificate of Incorporation to effect a reverse stock
split of the Company’s common stock and adjust the number of shares
authorized by the Amended and Restated Certificate of
Incorporation.
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Proposal 3.
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To ratify the appointment of Wolf & Company, P.C. as the
Company’s independent registered public accounting firm for the
year ending December 31, 2023.
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Proposal 4.
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To transact any other business that is properly brought before the
Annual Meeting or any adjournment or postponement thereof.
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WHO MAY VOTE ON THESE
PROPOSALS?
We will send this proxy statement, the attached Notice of Annual
Meeting and the enclosed proxy card on or about May _,
2023 to all stockholders as of May 10, 2023 (the “Record
Date”). Stockholders who owned shares of our common stock at the
close of business on the Record Date are entitled to vote at the
Annual Meeting on all matters properly brought before the Annual
Meeting.
On the Record Date, we had 20,459,057 shares of issued and
outstanding common stock entitled to vote at the Annual
Meeting.
HOW MANY VOTES DO I
HAVE?
Each share of common stock is entitled to one vote on each matter
presented at the Annual Meeting. Cumulative voting is not
permitted.
WHY WOULD THE ANNUAL MEETING
BE POSTPONED?
The Annual Meeting will be postponed if a quorum is not present on
June 14, 2023. The presence in person or by proxy of at least
a majority of our common stock outstanding as of the Record Date
will constitute a quorum and is required to transact business at
the Annual Meeting. If a quorum is not present, the Annual Meeting
may be adjourned until a quorum is obtained.
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Abstentions and broker non-votes are
treated as shares present or represented at the meeting but are not
counted as votes cast. Shares held by brokers who do not have
discretionary authority to vote on a particular matter and who have
not received voting instructions from their customers (broker
non-votes) are not considered to be
“entitled to vote” on that matter and are not counted or deemed to
be present or represented for the purpose of determining whether
stockholders have approved that matter, but they are counted as
present for the purposes of determining the existence of a quorum
at the Annual Meeting.
HOW DO I VOTE BY
PROXY?
Whether you plan to attend the Annual Meeting or not, we urge you
to complete, sign and date the enclosed proxy card and return it
promptly in the envelope provided. Returning the proxy card will
not affect your right to attend the Annual Meeting and vote in
person.
If you properly fill in your proxy card and send it to us in time
to vote, your proxy (one of the individuals named on your proxy
card) will vote your shares as you have directed. If you sign the
proxy card but do not make specific choices, your proxy will vote
your shares as recommended by the Board of Directors (the “Board”)
as follows:
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Proposal 1.
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To elect six nominees to the Board, each to serve until the 2024
annual meeting of stockholders of the Company or until such
person’s successor is qualified and elected.
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Proposal 2.
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To approve and adopt an Amendment to the Company’s Amended and
Restated Certificate of Incorporation to effect a reverse stock
split of the Company’s common stock and adjust the number of shares
authorized by the Amended and Restated Certificate of
Incorporation.
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Proposal 3.
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FOR ratification of the appointment of Wolf & Company,
P.C. as our independent registered public accounting firm for the
year ending December 31, 2023.
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Proposal 4.
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In their discretion, upon such other matters as may property come
before the meeting.
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If any other matters are presented, your proxy will vote in
accordance with his or her best judgment. At the time this proxy
statement was printed, we knew of no matters that needed to be
acted on at the Annual Meeting other than those discussed in this
proxy statement.
HOW DO I VOTE IN
PERSON?
If you plan to attend the Annual Meeting and vote in person on June
14, 2023, or at a later date if the meeting is adjourned or
postponed, we will give you a ballot when you arrive. However, if
your shares are held in the name of your broker, bank or other
nominee, you must bring a power of attorney executed by the broker,
bank or other nominee that owns the shares of record for your
benefit and authorizing you to vote the shares.
MAY I REVOKE MY
PROXY?
If you give a proxy, you may revoke it at any time before it is
exercised. You may revoke your proxy in three ways:
1. You
may send in another proxy with a later date.
2. You
may notify us in writing (or if the stockholder is a corporation,
under its corporate seal, by an officer or attorney of the
corporation) at our principal executive offices before the Annual
Meeting that you are revoking your proxy.
3. You
may vote in person at the Annual Meeting.
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WHAT VOTE IS REQUIRED TO
APPROVE EACH PROPOSAL?
Proposal 1: To elect six
nominees to the Board, each to serve until the 2023 annual meeting
of stockholders of the Company or until such person’s successor is
qualified and elected.
A plurality of the eligible votes cast is required to elect
director nominees, and as such, the six nominees who receive the
greatest number of “FOR” votes cast by stockholders, entitled to
vote at the meeting, will be elected. A nominee who receives a
plurality means he or she has received more “FOR” votes than any
other nominee for the same director’s seat. Broker non-votes will have no effect on this proposal.
Proposal 2: To approve
and adopt an Amendment to the Company’s Amended and Restated
Certificate of Incorporation to effect a reverse stock split of the
Company’s common stock and adjust the number of shares authorized
by the Amended and Restated Certificate of
Incorporation.
The approval of Proposal 2 requires the affirmative vote of a
majority of the shares outstanding and entitled to vote at the
Annual Meeting. Broker non-votes will
not be taken into account in determining the outcome of the
proposal, and abstentions will be counted as votes against the
proposal.
Proposal 3: Ratification
of Appointment of Independent Registered Public Accounting
Firm.
The approval of Proposal 3 requires the affirmative vote of a
majority of the shares present in person or by proxy and entitled
to vote on the matter. Broker non-votes will not be taken into account in
determining the outcome of the proposal, and abstentions will be
counted as votes against the proposal. We believe this proposal
will be considered to be a “routine” matter and, accordingly, if
you hold your shares in street name and do not provide voting
instructions to your broker, bank or other agent that holds your
shares, your broker, bank or other agent has discretionary
authority to vote on this proposal.
Other Business That Is
Properly Brought Before the Annual Meeting
If you do not give instructions to your bank or brokerage firm, it
will nevertheless be entitled to vote your shares in its discretion
on routine matters. However, absent your instructions, the record
holder will not be permitted to vote your shares on a
non-routine matter, which are referred
to as “broker non-votes”, properly
brought before the meeting. Broker non-votes (shares held by brokers that do not have
discretionary authority to vote on the matter and have not received
voting instructions from their clients) are not counted or deemed
to be present or represented for the purpose of determining whether
stockholders have approved that proposal but will be counted in
determining whether there is a quorum present.
ARE THERE ANY RIGHTS OF
APPRAISAL?
The Board is not proposing any action for which the laws of the
State of Delaware, our certificate of incorporation or our bylaws
provide a right of a stockholder to obtain appraisal of or payment
for such stockholder’s shares.
WHO BEARS THE COST OF
SOLICITING PROXIES?
We will bear the cost of soliciting proxies in the accompanying
form and will reimburse brokerage firms and others for expenses
involved in forwarding proxy materials to beneficial owners or
soliciting their execution.
WHERE ARE THE
COMPANY’S PRINCIPAL EXECUTIVE
OFFICES?
The principal executive offices of Bluejay are located at 360
Massachusetts Avenue, Suite 203, Acton, MA 01720 and our
telephone number is (844) 327-7078.
HOW CAN I OBTAIN
ADDITIONAL INFORMATION ABOUT THE COMPANY?
We are subject to the informational requirements of the Securities
Exchange Act of 1934, as amended, which requires
that we file reports, proxy statements and other information with
the SEC. The SEC maintains a website that contains reports,
proxy and information statements and other information regarding
companies, including Bluejay, that file electronically with the
SEC. The SEC’s website address is www.sec.gov. In
addition, our filings may be inspected and copied at the public
reference facilities of the SEC located at 100 F Street,
N.E. Washington, DC 20549.
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STOCK OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information, as of May 10, 2023,
regarding beneficial ownership of our common stock by:
• each
of our directors;
• each
of our named executive officers (“NEOs”);
• all
directors and executive officers as a group; and
• each
person, or group of affiliated persons, known by us to beneficially
own more than five percent of our shares of common stock.
Beneficial ownership is determined according to the rules of the
SEC, and generally means that person has beneficial ownership of a
security if he or she possesses sole or shared voting or investment
power of that security and includes options that are currently
exercisable or exercisable within 60 days. Each director or
officer, as the case may be, has furnished us with information with
respect to beneficial ownership. Except as otherwise indicated, we
believe that the beneficial owners of common stock listed below,
based on the information each of them has given to us, have sole
investment and voting power with respect to their shares, except
where community property laws may apply. Except as otherwise noted
below, the address for each person or entity listed in the table is
c/o Bluejay Diagnostics, Inc., 360 Massachusetts Avenue, Suite
203, Acton, MA 01720.
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Shares beneficially
owned
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Percent of
Class(1)
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Name
of Beneficial Owner
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Neil (Indranil) Dey
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4,553,908
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(2)
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22.3
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%(10)
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Svetlana Dey
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4,166,356
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(3)
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20.4
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%(10)
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Donald R. Chase
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906,114
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(4)
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*
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Dr. Jason Cook
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138,243
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(5)
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*
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Kenneth Fisher
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138,184
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(6)
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*
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Gary Gemignani
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55,000
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(7)
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*
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Douglas C. Wurth
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3,685,328
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(8)
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18.0
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%
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Fred S. Zeidman
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55,000
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(9)
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*
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Directors and Named Executive
Officers as a Group (8 persons)
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9,606,777
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47.0
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%
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INFORMATION ABOUT DIRECTORS
AND EXECUTIVE OFFICERS
Directors and Executive
Officers
The following table sets forth the names and ages of all of our
directors and executive officers as of May 10, 2023. Our officers
are appointed by, and serve at the pleasure of, the Board.
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Name
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Age
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Position
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Neil (Indranil) Dey
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59
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President, Chief Executive Officer and Director
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Kenneth Fisher
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44
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Chief Financial Officer
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Dr. Jason Cook
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41
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Chief Technology Officer
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Douglas C. Wurth
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58
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Director
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Svetlana Dey
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51
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Director
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Donald R. Chase
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76
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Director
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Fred S. Zeidman
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76
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Director
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Gary Gemignani
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57
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Director
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Neil
Dey, President, Chief Executive Officer and Director
Mr. Dey co-founded Bluejay
Diagnostics in 2015. In 2008, Mr. Dey co-founded Lana Management and Business Research
International, LLC (“LMBRI”), and served as Chief Operating Officer
of LMBRI from 2008 through 2015. LMBRI is a management consulting
company focused on product launch and marketing in the medical
field in the U.S., Japan and EU. During his tenure with LMBRI,
he spent approximately eight years consulting with Toray
Industries, Hitachi Chemicals (now Showa Denko Materials Co. Ltd.),
Fujifilm (Fuji Chemicals), Merck & Co., SRI International,
among others. From 2005 to 2007, Mr. Dey served as Vice
President of Business Development and Market for Definines,
AG. From 2001 to 2005, Mr. Dey served as Head of Business
Development, Western U.S. for IMPATH, Inc., where he was
responsible for three business units and the introduction of
Her2neu diagnostics for breast cancer treatment with Herceptin.
Earlier positions include Chief Business Officer for Genmethrax,
Inc.; Manager, Technology Licensing, Thomas Jefferson Medical
University; and Manager, Technology Licensing, Ciba Geigy
(Novartis). Mr. Dey earned both Bachelor of Science and Master
of Science degrees in Biochemistry from Visva-Bharati University in India and a Ph.D. in Lipid
Membrane Biochemistry from Biological Research Center in Hungary.
He also earned a Master’s in Business Administration (Fulbright
Scholarship) from the University of Cambridge. We believe
Mr. Dey’s history with our company, coupled with his extensive
business development experience in the medical device industry,
provides him with the qualifications to serve as a director.
Kenneth Fisher, Chief
Financial Officer
Mr. Fisher joined us in March 2022. Mr. Fisher is an
accomplished financial professional and Certified Public
Accountant. From July 2010 to November 2021, he was
Executive Vice President, Chief Financial Officer and Treasurer of
Meridian Bancorp, Inc. and its subsidiary, East Boston Savings Bank
(merged with Rockland Trust in November 2021). Prior to that,
he served as Vice President and Treasurer at Beverly National Bank
and as a senior auditor at Parent, McLaughlin & Nangle,
CPAs (now Marcum LLP). He received his Bachelor’s Degree in
Business Administration from the Isenberg School of Management at
the University of Massachusetts at Amherst and is a graduate of the
New England School for Financial Studies.
Dr. Jason Cook, Chief
Technology Officer
Dr. Cook joined us in 2021. From 2014 to 2021, Dr. Cook
served as the Chief Executive Officer of NanoHybrids, Inc., a
nanotechnology company specializing in the development and
manufacture of theranostic nanoparticle platform technologies. He
was also a Director and served as Chairman of its Board from 2020
to 2021, and from 2014 to 2017, he served as Senior Scientist
developing many of the core technologies of the company.
Dr. Cook earned a Ph.D. in Biomedical Engineering from the
University of Texas at Austin, focusing on medical diagnostic
system design and development. His postdoctoral work focused on the
improvement of bioconjugation strategies of nanoparticles for
molecular targeting. Dr. Cook also serves as an ad-hoc reviewer for numerous panels at the National
Institute of Health and peer reviewed scientific journals.
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Douglas C. Wurth,
Chairman of the Board
Mr. Wurth has served as Chairman of the Board of Bluejay
Diagnostics since 2017. Since 2016, Mr. Wurth has been a
private investor. Mr. Wurth has served as Chief Executive
Officer and a Director of Good Works II Acquisition Corp.
since February 2021, and Co- Chairman of Good Works
Acquisition Corp. since October 2020. Mr. Wurth led major
businesses within J.P. Morgan Asset Management during his
nearly 20 years at J.P Morgan from 1997 to 2016.
Mr. Wurth was the Chief Executive Officer of Alternative
Investments in Asset Management, and Chief Executive Officer of
J.P. Morgan’s International Private Bank, where he led the
expansion of the franchise in Asia, Latin America and Europe while
based in New York, Hong Kong, and London. Since leaving
J.P. Morgan, Mr. Wurth has invested in and helped lead
several private companies, of which he is Chairman of the Board of
Standard Power and Vestrata, and a board member of Triax
Technologies. Before joining J.P. Morgan, Mr. Wurth
practiced law at the New York firm Skadden, Arps, Slate,
Meagher & Flom from 1992 to 1995, and served as General
Counsel to former U.S. Senator Robert Dole’s 1996 presidential
campaign. Mr. Wurth earned a Bachelor of Arts degree from the
University of Notre Dame and a J.D. from the University of Virginia
School of Law. We believe that Mr. Wurth is professionally
qualified to serve on our Board due to his overall leadership
experience, his experience in the private equity and alternative
investments industry and his legal expertise.
Donald R. Chase,
Director
Mr. Chase has served on our Board since 2017. Mr. Chase
has been a member of the Board of Directors of Millyard Bank since
2020. Mr. Chase was a member of the Board of Directors of
Merchants Bank and Merchants Bancshares, Inc., in South Burlington.
VT, from 2015 through 2017. Mr. Chase was Chairman of the
Board of NUVO Bank and Trust Company of Springfield, Massachusetts
since its inception in 2008 through 2015. Mr. Chase served as
President and Chief Executive Officer, Vice Chairman, and a
Director of Westbank Corporation and its wholly-owned subsidiary, Westbank from 1988 to 2007.
Mr. Chase is active in a number of commercial real estate,
farming and ranching activities and serves in a number of civic
roles. He is former Chairman of the Board of Trustees for the
Eastern States Exposition in West Springfield,
MA. Mr. Chase is also a commissioner of the Board of
Public Safety for the City of West Springfield, MA and is a former
member of the Massachusetts Board of Agriculture. Mr. Chase is
a veteran of the United States Army during which he served in
combat in Vietnam from 1967 through 1969. Mr. Chase graduated
with honors from Western New England University with a Bachelor of
Science degree in Accounting. We believe that Mr. Chase is
professionally qualified to serve on our Board due to his executive
experience and his financial expertise.
Fred
S. Zeidman, Director
Mr. Zeidman has served on our Board since May 2021.
Mr. Zeidman is Chairman of WoodRock & Co., an
investment banking service business and serves as Chairman and CEO
of Good Works Acquisition Corp. and Chairman of Good Works II
Acquisition Corp, both publicly held SPACs and Mr. Zeidman
served as Chairman of Gordian Group LLC, a U.S. investment
bank specializing in board level advice in complex, distressed or
“story” financial matters. Mr. Zeidman, Chairman Emeritus of
the United States Holocaust Memorial Council was appointed by
President George W. Bush in March 2002 and served in that
position from 2002-2010. A
prominent Houston-based business and
civic leader, Mr. Zeidman also is Chairman Emeritus of the
University of Texas Health Science System Houston. He was National
Chairman of the Development Corp of Israel Campaign (Israel Bonds)
and served on the Board of the National World War II Museum.
Mr. Zeidman was the former CEO, President and Chairman of
Seitel, Inc., a Houston-based onshore
seismic data provider where he was instrumental in the successful
turnaround of the Company. He served as lead Director of Straight
Path Communications, Inc. until its sale to Verizon in 2018. He was
also Director of REMA a division of NRG Corp. and he further serves
on the board of Prosperity Bank and was formerly Restructuring
Officer of TransMeridian Exploration Inc. and Chief Bankruptcy
Trustee of AremisSoft Corp. He held the post of Chairman of the
Board and CEO of Unibar Corporation, the largest domestic
independent drilling fluids company, until its sale to Anchor
Drilling Fluids in 1992. Mr. Zeidman holds a Bachelor’s degree
from Washington University in St. Louis and a Master’s in Business
Administration from New York University. We believe that
Mr. Zeidman is professionally qualified to serve on our Board
due to his extensive leadership and corporate finance experience,
as well has his relationships in the investing and investment
banking businesses.
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Svetlana Dey,
Director
Ms. Svetlana Dey has been a member of Bluejay’s Board since 2015.
Ms. Dey co-founded Bluejay Diagnostics
in 2015. She also co-founded LMBRI in
2008, a management consulting company focused on product launch and
marketing in the medical field in the U.S., Japan and India. Ms.
Dey has served as LMBRI’s President and CEO since 2008. Prior to
LMBRI, Ms. Dey spent more than 15 years in healthcare
consulting businesses. In these roles, she has been involved in
management and operations of healthcare and life sciences products
development, sales and marketing operations and general management.
Ms. Dey earned a Master’s Degree in Mathematics from the State
University of Mari El Republic, Russia. We believe Ms. Dey’s
history with our company, coupled with her extensive experience in
the healthcare industry, provides her with the qualifications to
serve as a Director.
Gary
Gemignani, Director
Mr. Gemignani joined Bluejay’s Board in November 2021.
Mr. Gemignani previously served as EVP, Chief Financial
Officer of Solta Medical, a division of Bausch Health. Prior to
Solta Medical, Mr. Gemignani served as EVP and CFO of Acacia
Pharma Group plc from 2020 to 2022. Prior to Acacia Pharma he
served as CFO of Synergy Pharmaceuticals Inc. from 2017 to 2019
where he successfully led the sale of this Nasdaq-listed company’s assets to Bausch Health. Synergy
Pharmaceuticals Inc. filed a petition in the United States
Bankruptcy Court for the Southern District of New York in
December 2018 under Chapter 11 of the
U.S. Bankruptcy Code. Previously, Mr. Gemignani served as
CEO and CFO of Biodel Inc., overseeing business and strategic
planning, operations and financing activities of the company. Prior
to this, Mr. Gemignani served in senior and executive
financial and operational roles with multiple public and private
companies including Prudential Financial, Gentium, Novartis and
Wyeth. Mr. Gemignani started his career at Arthur
Andersen & Co. We believe that Mr. Gemignani is
professionally qualified to serve on our Board due to his extensive
accounting and financial experience, as well as his public company
expertise.
Family
Relationships
Ms. Svetlana Dey is married to Mr. Neil Dey. There are no
other directors that are related to any other director or executive
officer of our company or our subsidiaries, and there are no
arrangements or understandings between a director and any other
person pursuant to which such person was elected as director.
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GOVERNANCE OF THE
COMPANY
Our
Board of Directors
Our Board oversees the business affairs of Bluejay and monitors the
performance of management. Members of the Board discussed various
business matters informally on numerous occasions throughout the
year 2022. The Board held nine meetings during 2022. We
believe that such interaction between fellow Board members and with
management provided proper oversight of the Company. Each incumbent
director attended at least 75% of the total number of meetings
of the Board and committee meetings of which such director was a
member (held during the period for which such director was in
office).
Director
Independence
The rules of the Nasdaq Stock Market, or the Nasdaq Rules, require
a majority of a listed company’s board of directors to be composed
of independent directors. In addition, the Nasdaq Rules require
that, subject to specified exceptions, each member of a listed
company’s audit, compensation and nominating and governance
committees be independent. Under the Nasdaq Rules, a director will
only qualify as an independent director if, in the opinion of our
Board, that person does not have a relationship that would
interfere with the exercise of independent judgment in carrying out
the responsibilities of a director. The Nasdaq Rules also require
that Audit Committee members satisfy independence criteria set
forth in Rule 10A-3 under the
Securities Exchange Act of 1934, as amended, or the
Exchange Act. In order to be considered independent for
purposes of Rule 10A-3, a member
of an Audit Committee of a listed company may not, other than in
his or her capacity as a member of the Audit Committee, the board
of directors, or any other board committee, accept, directly or
indirectly, any consulting, advisory, or other compensatory fee
from the listed company or any of its subsidiaries or otherwise be
an affiliated person of the listed company or any of its
subsidiaries. In considering the independence of Compensation
Committee members, the Nasdaq Rules require that our Board must
consider additional factors relevant to the duties of a
Compensation Committee member, including the source of any
compensation we pay to the director and any affiliations with our
company.
Our Board undertook a review of the composition of our Board and
its committees and the independence of each director. Based upon
information requested from and provided by each director concerning
his background, employment and affiliations, including family
relationships, our Board has determined that Messrs. Wurth, Chase,
Zeidman, and Gemignani are independent as defined under the Nasdaq
Rules.
Board Committees
Our Board has established an Audit Committee, a Compensation
Committee, and a Nominating and Corporate Governance Committee. Our
Board may establish other committees to facilitate the management
of our business. Our Board has adopted written charters for each of
our Audit, Compensation, and Nominating and Corporate Governance
Committees, which are available on our website at https://ir.bluejaydx.com/corporate-governance/governance-overview.
The chart below shows the current membership and chairperson of
each of our three standing Board committees and the number of
committee meetings held during our last fiscal year. Each member of
the Audit, Compensation, and Nominating and Corporate Governance
Committee meets the applicable independence requirements of the SEC
and the Nasdaq listing rules for service on our Board and each
committee on which she or he serves.
|
Name
|
|
Audit
|
|
Compensation
|
|
Nominating
and
Corporate
Governance
|
|
Donald R. Chase
|
|
Member
|
|
Chair
|
|
Member
|
|
Neil (Indranil) Dey
|
|
—
|
|
—
|
|
—
|
|
Svetlana Dey
|
|
—
|
|
—
|
|
—
|
|
Gary Gemignani
|
|
Chair
|
|
Member
|
|
—
|
|
Douglas C. Wurth
|
|
Member
|
|
Member
|
|
Member
|
|
Fred S. Zeidman
|
|
—
|
|
—
|
|
Chair
|
|
Total Meetings in
2022
|
|
6
|
|
3
|
|
2
|
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Audit
Committee. The
members of the Audit Committee are Mr. Gemignani
(Chairperson), Mr. Wurth and Mr. Chase. Each member of
the Audit Committee is independent as defined by the Nasdaq Rules.
In addition, each member of the Audit Committee satisfies the
additional requirements of the SEC and Nasdaq Rules for audit
committee membership, including the additional independence
requirements and the financial literacy requirements. The Board has
determined that at least one member of the Audit Committee,
Mr. Gemignani, is an “audit committee financial expert” as
defined in the SEC’s rules and regulations. The primary purpose of
the Audit Committee is to oversee the quality and integrity of our
accounting and financial reporting processes and the audit of our
financial statements. The Audit Committee is responsible for
selecting, compensating, overseeing and terminating the selection
of our independent registered public accounting firm.
Nominating and Corporate
Governance Committee. The
members of the Nominating and Corporate Governance Committee are
Mr. Zeidman (Chairperson), Mr. Wurth and Mr. Chase.
Each member of the Nominating and Corporate Governance Committee is
independent as defined by Nasdaq Rules. The primary functions and
responsibilities of the Nominating and Corporate Governance
Committee are to: (a) determine the qualifications, qualities,
skills, and other expertise required to be a director;
(b) identify and screen individuals qualified to become
members of the Board; (c) make recommendations to the Board
regarding the selection and approval of the nominees for director;
and (d) review and assess the adequacy of our corporate
governance policies and procedures.
Compensation
Committee. The
members of the Compensation Committee are Mr. Chase
(Chairperson), Mr. Wurth and Mr. Gemignani. Each member
of the Compensation Committee is independent as defined by Nasdaq
Rules. The Compensation Committee is responsible for, among other
things, reviewing and making recommendations to the Board with
respect to the annual compensation for our Chief Executive Officer.
The Compensation Committee is also responsible for reviewing and
making recommendations to the Board the annual compensation and
benefits for our other executive officers. The Compensation
Committee also, among other things, reviews compensation of the
Board, reviews and makes recommendations on all new executive
compensation programs that are proposed for adoption and
administers the Company’s equity incentive plans. The Compensation
Committee is responsible for, among other things, reviewing and
making recommendations to the Board with respect to the annual
compensation for our Chief Executive Officer and Chief Financial
Officer.
Our Chief Executive Officer and Chief Financial
Officer review the performance of our other executive
officers (other than himself) and based on that review they make
recommendations to the Compensation Committee about the
compensation of executive officers (other than themselves). Neither
our Chief Executive Officer nor Chief Financial
Officer participate in any deliberations or approvals by the
Board or the Compensation Committee with respect to their own
compensation.
Board Member Attendance at
Annual Meetings
We do not have a formal policy regarding Board attendance at our
annual meetings, however, all of our directors are invited to the
annual meeting. This Annual Meeting will be our second Annual
Meeting as a public company.
Board Leadership Structure
and Role in Risk Oversight
Our Board recognizes that one of its key responsibilities is to
evaluate and determine its optimal leadership structure so as to
provide effective oversight of management. Mr. Wurth serves as
Chairman of the Board and Mr. Dey serves as our Chief
Executive Officer. Although our Board does not have a policy with
regard to the separation of the offices of Chairman of the Board
and Chief Executive Officer, we believe such separation serves an
important governance purpose.
Although management is responsible for the day-to-day management of
the risks we face, our Board and its committees take an active role
in overseeing management of our risks and have the ultimate
responsibility for the oversight of risk management. Our Board
regularly reviews information regarding our operational, financial,
legal and strategic risks. Specifically, senior management attends
periodic meetings of the Board, provides presentations on
operations including significant risks, and are available to
address any questions or concerns raised by our Board.
In addition, our committees assist our Board in fulfilling its
oversight responsibilities regarding risks. Our Audit Committee
coordinate the Board’s oversight of our internal control over
financial reporting, disclosure controls and procedures, related
party transactions and code of conduct and corporate governance
guidelines and management
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reports on these areas. Our Compensation Committee assists the
Board in fulfilling its oversight responsibilities with respect to
the management of risks arising from our compensation policies and
programs. When any of the committees receives a report related to
material risk oversight, the chairperson of the relevant committee
will report on the discussion to the full Board.
Nomination of Director
Candidates
We receive suggestions for potential director nominees from many
sources, including members of the Board, advisors, and
stockholders. Any such nominations, together with appropriate
biographical information, should be submitted to the Chairperson of
the Nominating and Corporate Governance Committee in the manner
discussed below. Any candidates submitted by a stockholder or
stockholder group are reviewed and considered in the same manner as
all other candidates.
Qualifications for consideration as a Board nominee may vary
according to the particular areas of expertise being sought as a
complement to the existing board composition. However, minimum
qualifications include high level leadership experience in business
activities, breadth of knowledge about issues affecting the
Company, experience on other boards of directors, preferably public
company boards, and time available for meetings and consultation on
Company matters. Our Nominating and Corporate Governance Committee
does not have a formal policy with regard to the consideration of
diversity in identifying director candidates but seeks a diverse
group of candidates who possess the background, skills and
expertise to make a significant contribution to the Board, to the
Company and our stockholders. Candidates whose evaluations are
favorable are recommended by our Nominating and Corporate
Governance Committee to the full Board for consideration. The full
Board selects and recommends candidates for nomination as directors
for stockholders to consider and vote upon at the annual
meeting.
A stockholder wishing to nominate a candidate for election to our
Board at any annual meeting at which the Board has determined that
one or more directors will be elected must submit a written notice
of his or her nomination of a candidate to the Chairperson of the
Nominating and Corporate Governance Committee (c/o the
Corporate Secretary), providing the candidates name, biographical
data and other relevant information together with a consent from
the nominee. Pursuant to our Bylaws, the submission must be
received at our principal executive offices no less than
90 days and no more than 120 days prior to the
anniversary date of our last annual meeting so as to permit the
Board time to evaluate the qualifications of the nominee.
We have not employed an executive search firm, or paid a fee to any
other third party, to locate qualified candidates for director
positions.
Diversity of
Directors
The following table summarizes certain self-identified characteristics of our directors,
utilizing the categories and terms set forth in applicable Nasdaq
rules and related guidance (as of May 10, 2023):
Board Diversity Matrix (As
of May 10,
2023)
|
Total Number of
Directors
|
|
6
|
|
| |
Female
|
|
Male
|
|
Part I: Gender
Identity
|
|
|
|
|
Directors
|
1
|
|
5
|
|
Part II: Demographic
Information
|
|
|
|
|
Asian
|
|
|
1
|
|
White
|
1
|
|
4
|
|
LGBTQ+
|
|
1
|
|
Stockholder Communications
with Directors
Persons wishing to write to our Board, or to a specified director
or committee of the Board, should send correspondence to the
Corporate Secretary at 360 Massachusetts Avenue, Suite 203, Acton,
MA 01720. Electronic submissions of stockholder correspondence
will not be accepted.
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The Corporate Secretary will forward to the directors all
communications that, in his or her judgment, are appropriate for
consideration by the directors. Examples of communications that
would not be appropriate for consideration by the directors include
commercial solicitations and matters not relevant to the
stockholders, to the functioning of the Board or to the affairs of
Bluejay. Any correspondence received that is addressed generically
to the Board will be forwarded to the Chairman of the Board.
Anti-Hedging
Policy
Our policies prohibit directors, officers and other employees from
purchasing financial instruments (including prepaid variable
forward contracts, equity swaps, collars, and exchange funds), or
otherwise engaging in transactions, that hedge or offset, or are
designed to hedge or offset, any decrease in the market value of
our equity securities without our prior approval.
Code
of Ethics
We have adopted a written code of ethics that applies to our
directors, principal executive officer, principal financial
officer, principal accounting officer or controller and any person
performing similar functions. The code of ethics is on the
“Investors — Corporate Governance Overview” section on
our website at bluejaydx.com. We intend to disclose any future
amendments to, or waivers from, the code of ethics within
four business days of the waiver or amendment through a
website posting or by filing a Current Report on
Form 8-K with the SEC.
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COMPENSATION
OVERVIEW
The purpose of this Compensation Overview section is to provide
material information about the Company’s compensation philosophy,
objectives and other relevant policies and to explain and put into
context the material elements of the disclosure that follows in
this Proxy Statement with respect to the compensation of our named
executive officers (“NEOs”). For the year ended December 31,
2022, our NEOs were:
Neil Dey President and Chief Executive Officer (“CEO”)
Kenneth Fisher, Chief Financial Officer (“CFO”)
Jason Cook, Chief Technology Officer (“CTO”)
Determining Executive
Compensation
On an ongoing basis, the Compensation Committee reviews the
performance and compensation of our President and CEO and the
Company’s other executive officers. Our President and CEO provides
input to the Compensation Committee regarding the performance of
the other NEOs and offers recommendations regarding their
compensation packages in light of such performance. The
Compensation Committee is ultimately responsible, however, for
determining the compensation of the NEOs, including our President
and CEO.
Compensation
Philosophy
The Compensation Committee and the Board believe that the Company’s
executive compensation programs for its executive officers should
reflect the Company’s performance and the value created for its
shareholders. In addition, we believe our executive compensation
programs should support the goals and values of the Company and
should reward individual contributions to the Company’s success.
Specifically, the Company’s executive compensation program is
intended to, among other things:
• attract
and retain the highest caliber executive officers;
• drive
achievement of business strategies and goals;
• motivate
performance in an entrepreneurial, incentive-driven culture;
• closely
align the interests of executive officers with the interests of the
Company’s shareholders;
• promote
and maintain high ethical standards and business practices; and
• reward
results and the creation of shareholder value.
Factors Considered in
Determining Compensation
The Compensation Committee makes executive compensation decisions
on the basis of total compensation, rather than on individual
components of compensation. They attempt to create an integrated
total compensation program structured to balance both short and
long-term financial and strategic
goals. Our compensation should be competitive enough to attract and
retain the highest caliber executive officers. In this regard, we
have historically utilized a combination of two types of
compensation to compensate our executive officers:
• base
salary;
• annual
performance bonuses payable in cash and/or equity awards; and
The Compensation Committee periodically reviews each executive
officer’s base salary and makes appropriate recommendations to the
Board. Base salaries are based on the following factors:
• the
Company’s performance for the prior fiscal years and
subjective evaluation of each executive’s contribution to that
performance;
• the
performance of the particular executive in relation to established
goals or strategic plans;
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• competitive
levels of compensation for executive positions based on information
drawn from informal internal benchmark analysis of base salaries
for executive officers at similarly sized, public medical
technology companies and other relevant information; and
• our
obligations under the applicable executive officer’s employment
agreement or offer letter (if any).
Performance bonuses and equity compensation are awarded based upon
the recommendation of the Compensation Committee. These grants are
made with a view to linking executives’ compensation to the
long-term financial success of the
Company and its shareholders.
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COMPENSATION OF DIRECTORS AND
EXECUTIVE OFFICERS
Executive Officer
Compensation
The following Summary Compensation Table shows, for the
fiscal years ended December 31, 2022 and
December 31, 2021, information regarding the compensation
awarded to our three most highly compensated executive officers for
2022: Neil Dey, our President and Chief Executive Officer; Kenneth
Fisher, our Chief Financial Officer; and Jason Cook, our Chief
Technology Officer. We refer to these officers as our “named
executive officers” (“NEOs”).
|
Name and
Principal Position
|
|
Year
|
|
Salary
($)
|
|
Bonus
($)
|
|
Option
Awards
($)(4)
|
|
Non-Equity
Incentive Plan Compensation ($)
|
|
All Other
Compensation
($)
|
|
Total
($)
|
|
Neil
Dey(1)
|
|
2022
|
|
337,436
|
|
70,000
|
(8)
|
|
12,281
|
|
—
|
|
5,721
|
(7)
|
|
425,438
|
|
President &
Chief Executive Officer
|
|
2021
|
|
137,500
|
|
44,110
|
(5)
|
|
—
|
|
—
|
|
—
|
|
|
181,610
|
|
Kenneth
Fisher(2)
|
|
2022
|
|
204,135
|
|
99,000
|
(10)
|
|
67,600
|
|
—
|
|
3,438
|
(7)
|
|
374,173
|
|
Chief
Financial Office
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jason
Cook(3)
|
|
2022
|
|
212,103
|
|
60,720
|
(9)
|
|
4,632
|
|
—
|
|
5,596
|
(7)
|
|
283,051
|
|
Chief
Technology Officer
|
|
2021
|
|
100,833
|
|
16,636
|
(5)
|
|
46,250
|
|
—
|
|
90,000
|
(6)
|
|
253,719
|
Narrative to Summary
Compensation Table
Neil Dey, Chief Executive
Officer and President
In July 2021, we entered into an employment agreement with
Mr. Dey (such agreement, as subsequently amended and restated,
the “Dey Agreement”). The Dey Agreement provides for an initial
annual base salary for Mr. Dey of $250,000, which increased to
$350,000 in November 2021. On January 12, 2023,
Mr. Dey’s annual base salary was increased to $372,750, then
on January 27, 2023 Mr. Dey’s annual base salary was
decreased to $275,000. The agreement also provides eligibility for
an annual bonus targeted at 50% of his base salary. The annual
bonus is payable in a combination of cash and equity as determined
at the sole discretion of the Compensation Committee of the Board.
Mr. Dey is entitled to participate in certain of the Company’s
benefit plans available to other executives.
Under the Dey Agreement, Mr. Dey is entitled to receive
certain benefits upon termination of employment under certain
circumstances. If we terminate Mr. Dey’s employment for any
reason other than “Cause” (as such term is defined in the Dey
Agreement), Mr. Dey will receive cash severance equal to
twelve months base salary plus a pro-rata portion of the target annual bonus in
addition to any unpaid salary, bonus, and unused vacation time not
already paid.
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Kenneth Fisher, Chief
Financial Officer
In March 2022, we entered into an employment agreement with
Mr. Fisher (such agreement, the “Fisher Agreement”). The
Fisher Agreement provides for an initial annual base salary for
Mr. Fisher of $275,000, which shall increase to $300,000 on
January 1, 2023 as well as eligibility for an annual bonus
targeted at 40% of his base salary. The annual bonus is payable in
a combination of cash and equity as determined at the sole
discretion of the Compensation Committee of the Board.
Mr. Fisher is entitled to participate in certain of the
Company’s benefit plans available to other executives.
Under the Fisher Agreement, Mr. Fisher is entitled to receive
certain benefits upon termination of employment under certain
circumstances. If the Company terminates Mr. Fisher’s
employment for any reason other than “Cause” (as such term is
defined in the Fisher Agreement), Mr. Fisher will receive cash
severance equal to six months base salary plus a
pro-rata portion of the target annual
bonus in addition to any unpaid salary, bonus, and unused vacation
time not already paid.
Mr. Fisher was granted a ten-year
option to purchase 65,000 shares of common stock at an exercise
price of $1.31 per share (the closing price of the Company’s common
stock on the date of the agreement). Of the option grant, 5,000
shares were fully-vested on the date
of grant and 60,000 shares will vest in three equal annual
installments on the anniversary dates of the grant, provided
Mr. Fisher is employed on each vesting date.
Jason Cook, Chief Technology
Officer
In July 2021, we entered into an employment agreement with
Mr. Cook (such agreement, as subsequently amended and
restated, the “Cook Agreement”). The Cook Agreement provides for an
initial annual base salary for Mr. Cook of $200,000 as well as
eligibility for an annual bonus targeted at 30% of his base salary.
On December 15, 2021, Mr. Cook’s annual base salary was
increased to $220,000. The annual bonus is payable in a combination
of cash and equity as determined at the sole discretion of the
Compensation Committee of the Board. Mr. Cook is entitled to
participate in certain of the Company’s benefit plans available to
other executives and Mr. Cook was provided with a $30,000
relocation allowance to move to Massachusetts in 2021.
Under the Cook Agreement, Mr. Cook is entitled to receive
certain benefits upon termination of employment under certain
circumstances. If the Company terminates Mr. Cook’s employment
for any reason other than “Cause” (as such term is defined in the
Cook Agreement), Mr. Cook will receive cash severance equal to
six months base salary plus a pro-rata portion of the target annual bonus in
addition to any unpaid salary, bonus, and unused vacation time not
already paid.
In connection with his appointment as Chief Technology Officer in
July 2021, following the effective date of the 2021 Stock
Plan, Mr. Cook was issued stock options to purchase 75,000
shares of common stock on July 7, 2021 at an exercise price of
$3.50. These stock options vest as follows: (i) 41,668 vest
immediately upon grant, and (ii) 8,333 each will vest over
upon achievement of four performance milestones (total of
33,332).
Outstanding Equity Awards at
2022 Fiscal Year End
The following table shows certain information regarding outstanding
equity awards held by our NEOs as of December 31, 2022.
|
Name
|
|
Option Awards
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
|
Option
Exercise
Price
($)
|
|
Option
Expiration
Date
|
|
Neil Dey(1)
|
|
—
|
|
14,116
|
|
$
|
1.09
|
|
2/25/32
|
|
Kenneth Fisher(2)
|
|
5,000
|
|
60,000
|
|
$
|
1.31
|
|
3/25/32
|
|
Jason Cook(3)
|
|
41,668
|
|
33,332
|
|
$
|
3.50
|
|
7/7/31
|
|
Jason Cook(4)
|
|
—
|
|
5,324
|
|
$
|
1.09
|
|
2/25/32
|
16
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Retirement
Benefits
We have established a 401(k) tax-deferred savings plan in 2022, which permits
participants, including our NEOs, to make contributions by salary
deduction pursuant to Section 401(k) of the Internal
Revenue Code. We are responsible for the administrative costs of
the 401(k) plan. We may, in our discretion, make matching
contributions to the 401(k) plan. We contributed $14,755 in
matching contributions to the 401(k) Plan for NEOs for the
year ended December 31, 2022.
Employee, Officer and
Director Hedging
Our insider trading policy generally prohibits our directors,
officers and employees from:
• engaging
in short sales of our securities;
• engaging
in hedging transactions, including, but not limited to,
zero-cost collars, forward sale
contracts and many others, which involve the establishment of a
short position in our securities and limit or eliminate a director,
officer or employee’s ability to profit from an increase in the
value of our securities;
• engaging
in transactions in publicly traded options on our securities, such
as puts, calls and other derivative securities, on an exchange or
in any other organized market; and
• holding
securities in a margin account or pledging our securities as
collateral for a loan.
Pay
Versus Performance
As required by Section 953(a) of the Dodd-Frank Wall Street Reform and Consumer Protection
Act and Item 402(v) of Regulation S-K, we are providing the following information
about the relationship between executive compensation and certain
financial performance of our Company. The disclosure included in
this section is prescribed by SEC rules and does not necessarily
align with how the Company or the Compensation Committee view the
link between the Company’s performance and its NEOs pay.
Pay Versus Performance
Table
The table below presents information on the compensation of our
chief executive officer and our other NEOs in comparison to certain
performance metrics for 2022 and 2021. The metrics are not those
that the compensation committee uses when setting executive
compensation. The use of the term “compensation actually paid”
(“CAP”) is required by the SEC’s rules. Neither CAP nor the total
amount reported in the Summary Compensation Table (“SCT”) reflect
the amount of compensation actually paid, earned or received during
the applicable year. Per SEC rules, CAP was calculated by adjusting
the SCT Total values for the applicable year as described in the
footnotes to the table.
|
Year
|
|
Summary
Compensation
Table Total for
CEO(3)
|
|
Compensation
Actually Paid to CEO(4)
|
|
Average Summary
Compensation Table Total for
Non-CEO
NEOs(3)
|
|
Average
Compensation Actually Paid to Non-CEO NEOs(4)
|
|
Value of
initial fixed $100 investment based on total shareholder return
(TSR):
|
|
Net Loss
(in thousands)
|
|
2022(1)
|
|
$
|
425,438
|
|
$
|
417,044
|
|
$
|
328,612
|
|
$
|
301,710
|
|
$
|
15
|
|
$
|
(9,297
|
)
|
|
2021(2)
|
|
$
|
181,610
|
|
$
|
181,610
|
|
$
|
253,719
|
|
$
|
252,469
|
|
$
|
48
|
|
$
|
(3,488
|
)
|
17
Table of
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|
2022
|
|
CEO
|
|
Average
Non-CEO NEOs
|
|
SCT Total Compensation
|
|
$
|
425,438
|
|
|
$
|
328,612
|
|
|
Add Change in Fair Value of Awards Granted in 2022 Unvested as of
12/31/22
|
|
|
(8,295
|
)
|
|
|
(24,955
|
)
|
|
Add Change in Fair Value of Awards Granted and Vested during 2022
as of the Vesting Date
|
|
|
—
|
|
|
|
(1,948
|
)
|
|
Total Compensation Actually Paid
|
|
$
|
417,143
|
|
|
$
|
301,710
|
|
|
2021
|
|
CEO
|
|
Average
Non-CEO NEOs
|
|
SCT Total Compensation
|
|
181,610
|
|
223,655
|
|
Add Fair Value of Awards Granted and Vested in 2021 as of the
Vesting Date
|
|
—
|
|
28,814
|
|
Total Compensation Actually Paid
|
|
181,610
|
|
252,469
|
Pay Versus Performance
Narrative Disclosure
As illustrated in the above table, for 2022, the average SCT total
for our CEO and non-CEO NEOs were
$425,438 and $328,612, respectively, whereas the average amounts
actually paid to our CEO and non-CEO
NEOs based on CAP were $417,143 and $301,710, respectfully. During
such period, the total shareholder return of our common stock was
-85%, which is reflected in such
CAP-based amounts being less than the
amount reported in the summary compensation table.
For 2021, the average SCT total for our CEO and non-CEO NEOs were $181,610 and $223,655,
respectively, whereas the average amounts actually paid to our CEO
and non-CEO NEOs based on CAP were
$181,610 and $252,469, respectfully. During such period, the total
shareholder return of our common stock was -52%.
In 2022, our net loss increased from 2021, which was primarily due
to the increased operating expenses related to our transition from
a private to public company as well as the start of our initial
clinical trials. Generally, our increased loss in 2022 as compared
to 2021 correlated with our CAP-based
amounts increasing from 2021 to 2022. We generally do not utilize
TSR and net loss in our executive compensation program. However, we
do utilize several other performance measures to align executive
compensation with our performance, as described in more detail
above in the section “Compensation Overview.” We view stock
options, which are part of our executive compensation program, as
related to company performance although not directly tied to TSR,
because they provide value only if the market price of our common
stock increases, and if the executive officer continues in our
employment over the vesting period. These stock option awards
intend to align our executive officers’ interests with those of our
stockholders by providing a continuing financial incentive to
maximize long-term value for our
stockholders and by encouraging our executive officers to continue
in our employment for the long-term.
Director
Compensation
Pursuant to our Non-Employee Director
Compensation Policy, each member serving on our Board who was not
our employee was eligible to compensation for his or her services
as follows for 2022:
• Board
member: $50,000;
• Board
chair: $75,000;
• Audit
Committee member: $7,500;
18
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• Audit
Committee chair: $20,000;
• Compensation
Committee member: $7,500;
• Compensation
Committee chair: $20,000;
• Nominating
and Corporate Governance Committee member: $7,500; and
• Nominating
and Corporate Governance Committee chair: $20,000
The following table shows for the fiscal year ended
December 31, 2022 certain information with respect to the
compensation of our non-employee
directors.
|
Name
|
|
Fees
Earned
($)
|
|
Option
Awards
($)(1)
|
|
Other
Compensation
($)
|
|
Total
($)
|
|
Douglas Wurth
|
|
97,500
|
|
56,700
|
(2)
|
|
—
|
|
154,200
|
|
Donald Chase
|
|
85,000
|
|
56,700
|
(3)
|
|
—
|
|
141,700
|
|
Fred Zeidman
|
|
70,000
|
|
35,000
|
(4)
|
|
—
|
|
105,000
|
|
Svetlana Dey
|
|
50,000
|
|
56,700
|
(5)
|
|
—
|
|
106,700
|
|
Gary Gemignani
|
|
77,500
|
|
2,450
|
(6)
|
|
—
|
|
79,950
|
19
Table of
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Securities Authorized for
Issuance under Equity Compensation Plans
The following table sets forth information regarding our equity
compensation plans at December 31, 2022:
|
Plan category
|
|
Number of
securities to
be issued
upon exercise
of outstanding
options,
warrants and
rights
(a)(3)
|
|
Weighted-
average
exercise price
of outstanding
options,
warrants and
rights
(b)
|
|
Number of
securities
remaining
available for
future issuance
under equity
compensation
plans (excluding
securities
reflected in
column (a))
(c)
|
|
Equity compensation plans approved by security holders(1)
|
|
589,786
|
|
1.86
|
|
1,943,269
|
|
Equity compensation plans not approved by security
holders(2)
|
|
3,371,282
|
|
6.16
|
|
—
|
20
Table of
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RELATED PARTY
TRANSACTIONS
LMBRI Expense Sharing
Agreement
We are a party to an expense sharing agreement with Lana Management
and Business Research International, LLC (“LMBRI”), an entity owned
and controlled by Mr. Dey and Ms. Dey, pursuant to which we
reimburse LMBRI monthly for certain shared expenses, including
insurance, rent, salaries, telephone, and other miscellaneous
expenses. We are billed up to $4,000 monthly for these expenses
through December 31, 2021. On January 1, 2022, the
Company moved into its own leased facility and no longer shared
expenses with LMBRI.
The table below summarizes the amounts incurred, paid, and balances
due to LMBRI under this agreement as of and for years ended
December 31, 2022 and 2021.
|
|
2022
|
|
2021
|
|
Expenses from LMBRI
|
|
$
|
—
|
|
$
|
48,000
|
|
Payments to LMBRI
|
|
$
|
2,000
|
|
$
|
171,102
|
|
Amounts payable to LMBRI
|
|
$
|
—
|
|
$
|
2,000
|
NanoHybrids, LLC
In December 2021, we entered into an agreement with
NanoHybrids, LLC (“NanoHybrids”) to utilize our research and
development staff and laboratory facility when available to perform
work for NanoHybrids. Any hours worked by our employees for
NanoHybrids is billed to NanoHybrids at a bill rate of the
respective employee’s fully burdened personnel cost plus 10%.
NanoHybrids is wholly owned by our Chief Technology Officer. The
table below summarizes the amounts earned and due from NanoHybrids
as of and for the year’s ended December 31, 2022 and 2021:
|
|
2022
|
|
2021
|
|
Income from NanoHybrids included in Other Income
|
|
$
|
163,256
|
|
$
|
—
|
|
Cash receipts from NanoHybrids
|
|
$
|
143,526
|
|
$
|
—
|
|
Amounts receivable from NanoHybrids included in Prepaids and Other
Current Assets
|
|
$
|
19,731
|
|
$
|
—
|
Policies and Procedures for
Related Party Transactions
Our Audit Committee Charter provides that our Audit Committee is
responsible for reviewing and approving in advance any related
party transaction. This will cover, with certain exceptions set
forth in Item 404 of Regulation S-K under the Securities Act, any transaction,
arrangement or relationship, or any series of similar transactions,
arrangements or relationships in which we were or will be a
participant to, where the amount involved exceeds the lesser of
$120,000 or one percent of the average of our total assets at
year-end for the last two completed
fiscal years, and a related person had or will have a direct
or indirect material interest, including, without limitation,
purchases of goods or services by or from the related person or
entities in which the related person has a material interest,
indebtedness, guarantees of indebtedness and employment by us of a
related person. In determining whether to approve a proposed
transaction, our Audit Committee will consider all relevant facts
and circumstances including: (i) the materiality and character
of the related party’s direct or indirect interest; (ii) the
commercial reasonableness of the terms; (iii) the benefit or
perceived benefit, or lack thereof, to us; (iv) the
opportunity cost of alternate transactions; and (v) the actual
or apparent conflict of interest of the related party.
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Table of
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PROPOSAL 1:
ELECTION OF DIRECTORS
Our Board currently consists of six members: Douglas Wurth, Neil
Dey, Svetlana Dey, Donald Chase, Fred Zeidman and Gary Gemignani.
The Nominating and Governance Committee nominated and the Board
approved and recommended all of the current members of our Board
for re-election. All nominees have
consented to being named herein and have indicated their intention
to serve as our directors, if elected. The Board has no reason to
believe that any nominee would be unable or unwilling to serve if
elected. Unless authority to do so is withheld, the persons named
as proxies will vote the shares represented by such proxies for the
election of the named director nominees. In case any of the
nominees becomes unavailable for election to the Board the persons
named as proxies will have full discretion and authority to vote or
refrain from voting for any other nominees in accordance with their
judgment. The Board nominees, if elected, will serve until the next
annual meeting of shareholders or until each successor is duly
elected and qualified.
Biographical information for our directors is provided above in the
section entitled “Information About Directors and Executive
Officers.”
Vote
Required and Recommendation of the Board
A plurality of the eligible votes cast is required to elect
director nominees, and as such, the six nominees who receive the
greatest number of “FOR” votes cast by stockholders, entitled to
vote at the meeting, will be elected. A nominee who receives a
plurality means he or she has received more “FOR” votes than any
other nominee for the same director’s seat. Broker non-votes will have no effect on this proposal.
The
Board recommends that stockholders vote FOR each of the six
nominees for election to our
Board.
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Table of
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PROPOSAL 2:
APPROVE AND ADOPT AN AMENDMENT TO OUR AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT AND
ADJUST THE NUMBER OF SHARES
AUTHORIZED1
General
Our Board has unanimously approved and declared advisable and is
recommending that our stockholders approve and adopt proposed
amendments to our amended and restated certificate of incorporation
in substantially the form attached hereto as Annex A (the
“Certificate of Amendment”) to effect a reverse stock split of all
of our outstanding shares of common stock by one of several fixed
ratios between 1-for-2 and
1-for-25, coupled with a
less-than-proportionate reduction in our authorized shares
of common stock (having the effective result of increasing our
authorized shares of common stock by 50%), as indicated in the
table below (the “Reverse Stock Split”), with the final decision of
whether to proceed with the Reverse Stock Split, the effective time
of the Reverse Stock Split, and the exact ratio of the Reverse
Stock Split to be determined by our Board, in its sole discretion
and without further action by the Company’s stockholders. If this
proposal is approved and adopted and should our Board proceed with
the Reverse Stock Split, the exact ratio shall be set at one of the
seven reverse stock split ratios, identified as “Amendments A, B,
C, and D,” as determined by our Board in its sole discretion.
If this Proposal 2 is approved and adopted by our stockholders
and ultimately implemented by our Board, the actual number of
authorized shares of common stock after giving effect to the
Reverse Stock Split, if and when effected, will depend on the
reverse stock split ratio and corresponding authorized share
reduction ratio that is ultimately determined by our Board. The
table below shows the number of authorized shares of common stock
for each of the three alternative reverse stock split ratios,
identified as “Amendments A, B, C, and D,” reflecting the whole
numbers within such range:
|
|
|
|
Authorized Shares of
Common Stock
|
| |
|
Reverse Stock
Split Ratio
|
|
Prior to Reverse
Stock Split
|
|
Giving Effect
to Reverse
Stock Split
|
|
Amendment A
|
|
1-for-5
|
|
100,000,000
|
|
30,000,000
|
|
Amendment B
|
|
1-for-10
|
|
100,000,000
|
|
15,000,000
|
|
Amendment C
|
|
1-for-20
|
|
100,000,000
|
|
7,500,000
|
|
Amendment D
|
|
1-for-25
|
|
100,000,000
|
|
6,000,000
|
Because the number of issued and outstanding shares of common stock
will be reduced in the Reverse Stock Split at a lower ratio than
the corresponding reduction in authorized shares of common stock,
the Reverse Stock Split will have the net effect of increasing the
number of shares of common stock available for issuance relative to
the number of shares issued and outstanding by 50%. The Board
believes that this relative increase in the availability of
authorized common stock will provide the Company with more
flexibility to execute potential future capital-raising transactions that involve the issuance of
common stock.
For the convenience of our stockholders, the Certificate of
Amendment attached hereto as Annex A indicates in brackets,
for each of Amendments A, B, C, and D, the ratio for the Reverse
Stock Split and the correspondingly adjustment to the authorized
shares of common stock. Each of Amendments A, B, C, and D has been
approved by our Board. By approving the Reverse Stock Split,
stockholders will be approving each of Amendments A, B, C, and
D. However, only the version of the Certificate of Amendment
that sets forth the Amendment providing for the final ratio
determined by our Board to be implemented will be filed with the
Secretary of State of the State of Delaware and become effective,
whereupon each of the other six versions of the Certificate of
Amendment that were approved by stockholders as part of this
proposal will automatically be deemed to have been abandoned by our
Board.
23
Table of
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If the stockholders approve and adopt the Reverse Stock Split, and
our Board decides to implement it, the Reverse Stock Split
(including the corresponding adjustment in the number of authorized
shares of common stock) will become effective as of a date and time
to be determined by the Board that will be specified in the
Certificate of Amendment (the “Effective Time”). If the Board does
not decide to implement the Reverse Stock Split by December 31,
2023, the authority granted in this proposal to implement the
Reverse Stock Split (including the corresponding adjustment in the
number of authorized shares of common stock) will terminate.
The Reverse Stock Split (including the corresponding adjustment in
the number of authorized shares of common stock), if implemented,
will be realized simultaneously for all outstanding common stock.
The Reverse Stock Split, if implemented, will affect all holders of
common stock uniformly and each stockholder will hold the same
percentage of common stock outstanding immediately following the
Reverse Stock Split as that stockholder held immediately prior to
the Reverse Stock Split, except for immaterial adjustments that may
result from the treatment of fractional shares as further described
below. The Reverse Stock Split, if implemented, will not change the
par value of our common stock but it will affect outstanding stock
options, restricted stock awards, time-based and performance-based restricted stock units and other
stock-based awards, as described in
“Principal Effects of Reverse Stock Split on Stock Plans and Equity
Awards Thereunder” below.
Reasons for the Reverse Stock
Split
Our Board is seeking stockholder approval of the Reverse Stock
Split with the primary intent of increasing the price of our common
stock in order to meet the Nasdaq Stock Market’s minimum price per
share criteria for continued listing on that exchange. Our common
stock currently is publicly traded and listed on the Nasdaq Capital
Market under the symbol “BJDX.” On October 25, 2022, we
received a notification letter from the Nasdaq Listing
Qualifications Staff notifying us that the closing bid price for
our common stock had been below $1.00 for the previous 30
consecutive business days and that we therefore are not in
compliance with the minimum bid price requirement for continued
inclusion on the Nasdaq Capital Market under Nasdaq Listing
Rule 5550(a)(2). The notification provided us with a
compliance period of 180 calendar days, or until
April 24, 2023, in which to regain compliance. To regain
compliance, the closing bid price of our common stock must be at
least $1.00 or higher for a minimum of ten
consecutive business days, and in such case, Nasdaq will
provide us with written confirmation of compliance. The Nasdaq
Listing Qualifications Staff has since extended the date by which
we must be in compliance until October 23, 2023, and it is the
Board’s intent to implement a reverse stock split prior to such
date. Our Board’s principal reason for seeking approval of the
Reverse Stock Split is to establish a mechanism for the price of
our common stock to meet Nasdaq’s minimum bid price
requirement.
In addition to addressing this Nasdaq listing matter, we believe
that the increased market price of our common stock expected as a
result of implementing the Reverse Stock Split will improve the
marketability and liquidity of our common stock and will encourage
interest and trading in our common stock. A reverse stock split
could allow a broader range of institutions to invest in our common
stock (including investors that, as a matter of policy, avoid or
are prohibited from buying stocks that are priced below a certain
per share price threshold), potentially increasing the liquidity of
our common stock. Because of the trading volatility often
associated with low-priced stocks, many brokerage firms and
institutional investors have internal policies and practices that
either prohibit them from investing or trading
in low-priced stocks or tend
to discourage individual brokers from
recommending low-priced stocks to their customers. Some of
those policies and practices may function to make the processing of
trades in low-priced stocks
economically unattractive to brokers. The presence of these factors
may be adversely affecting the pricing of our common stock as well
as its trading liquidity. An increase in the common stock price
could help increase interest in our stock from analysts and brokers
as their policies can discourage them from following or
recommending companies with low stock prices.
Further, we believe that a higher stock price could help us attract
and retain employees and other service providers who can receive a
portion of their compensation in stock. We believe that some
potential employees and service providers are less likely to work
for a company with a low stock price, regardless of the size of the
company’s market capitalization. If the Reverse Stock Split
successfully increases the per share price of our common stock, we
believe this increase will enhance our ability to attract and
retain employees and service providers.
24
Table of
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However, the possibility also exists that liquidity may be
adversely impacted by the reduced number of shares which would be
outstanding if the Reverse Stock Split is completed, particularly
if the price per share of our common stock begins a declining trend
after the implementation of the Reverse Stock Split.
Additionally, while the corresponding adjustments to the authorized
shares would decrease the total number of authorized shares
available for issuance, the net results of the Reverse Stock Split
and the corresponding adjustment in authorized shares (as shown
above) would provide the Company with additional flexibility to
raise capital in an efficient manner. This change would result in
an effective increase in authorized common stock of 50% on a
split-adjusted basis. The Board
believes that this effective increase in the availability of
authorized common stock will provide the Company with more
flexibility to execute potential future capital-raising transactions that involve the issuance of
common stock.
Our Board believes that stockholder adoption of several fixed
reverse stock split ratios (and corresponding adjustment numbers of
authorized shares of common stock), as opposed to adoption of a
single reverse stock split ratio, provides maximum flexibility to
achieve the purposes of the Reverse Stock Split and, therefore, is
advisable and in the best interests of the Company and its
stockholders. In determining which of the approved fixed ratios to
implement following the receipt of stockholder approval, the Board
(or any authorized committee of the Board) may consider, among
other things, factors such as:
• the
historical trading price and trading volume of our common
stock;
• the
number of shares of our common stock outstanding;
• the
then-prevailing trading price and
trading volume of our common stock and the anticipated impact of
the Reverse Stock Split on the trading market for our common
stock;
• the
continued listing requirements of the Nasdaq Stock Market; and
• prevailing
general market and economic conditions.
The Board reserves the right to elect to abandon the Reverse Stock
Split (including all of the fixed reverse stock split ratios and
the corresponding adjustment in the number of authorized shares of
common stock), notwithstanding stockholder approval thereof, if our
Board determines, in its sole discretion, that the Reverse Stock
Split (including the corresponding adjustment in the number of
authorized shares of common stock) is no longer in the best
interests of the Company and its stockholders. In making such
determination, our Board will take into account certain factors
including the expected trading prices for our common stock, actual
or forecasted results of operations and the likely effect of such
results on the market price of our common stock, as well as the
factors described in the above paragraph.
Reverse Stock Split Amendment
to our Amended and Restated Certificate of Incorporation
If the Reverse Stock Split is approved and adopted, the text
currently constituting the first sentence of Section 4.1
(Authorized Capital Stock) of Article IV (Capitalization) of
our amended and restated certificate of incorporation shall be
amended and restated in its entirety to read as follows:
“The total number of shares of all classes of capital stock, each
with a par value of $0.0001 per share, which the Corporation is
authorized to issue is [Amendment
A: THIRTY-FIVE MILLION
(35,000,000) shares, consisting of (a) THIRTY MILLION
(30,000,000) shares; Amendment
B: TWENTY MILLION (20,000,000) shares, consisting of
(a) FIFTEEN MILLION (15,000,000) shares; Amendment
C: TWELVE MILLION FIVE HUNDRED THOUSAND (12,500,000)
shares, consisting of (a) SEVEN MILLION FIVE HUNDRED
(7,500,000) shares; Amendment
D: ELEVEN MILLION (11,000,000) shares, consisting of
(a) SIX MILLION (6,000,000) shares;] of common stock (the
“Common Stock”), and (b) FIVE MILLION (5,000,000) shares of
preferred stock (the “Preferred Stock”).; Upon the effectiveness of
this Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Corporation, each [Amendment
A: 5, Amendment B: 10,
Amendment C: 20,
Amendment D: 25]
shares of Common Stock issued and outstanding at such time shall,
automatically and without any further action on the part of the
Corporation or the holder thereof, be combined
25
Table of
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into one validly issued, fully paid and non-assessable share of Common Stock (the
“Reverse Stock Split”). The par value of the Common Stock following
the Reverse Stock Split shall remain $0.0001 per share. No
fractional shares shall be issued, and, in lieu thereof, the
Corporation shall pay cash equal to such fraction multiplied by the
fair market value of a share of Common Stock, as determined by the
Board of Directors of the Corporation. Each certificate that
immediately prior to the effectiveness of this Certificate of
Amendment to the Amended and Restated Certificate of Incorporation
of the Corporation represented shares of Common Stock (an “Old
Certificate”) shall thereafter represent that number of shares of
Common Stock into which the shares of Common Stock represented by
the Old Certificate shall have been combined, subject to the
elimination of fractional share interests as described above.”
The Certificate of Amendment attached hereto as Annex A
reflects the changes that will be implemented to our amended and
restated certificate of incorporation if the Reverse Stock Split is
approved and adopted.
Principal Effects of the
Reverse Stock Split
If the stockholders approve and adopt the proposal to authorize the
Board to implement the Reverse Stock Split (including approval of
the amendments to effectuate each of the fixed reverse stock split
ratios and the corresponding adjustment in the number of authorized
shares of common stock) and the Board implements the Reverse Stock
Split (by selecting one of the fixed reverse stock split ratios and
corresponding adjustment in the number of authorized shares of
common stock), we will amend and restate the text currently
constituting the first sentence of Section 4.1 (Authorized
Capital Stock) of Article IV (Capitalization) of our amended
and restated certificate of incorporation in the manner set forth
above.
By approving this proposal, stockholders will approve and adopt
each of Amendments A, B, C, and D, each of which would combine a
specific number of shares of common stock into one share, and
correspondingly reduce the number of authorized shares of common
stock. The Certificate of Amendment to be filed with the Secretary
of State of the State of Delaware (which would be one of Amendments
A, B, C, and D) would include only that number (and the
corresponding number of authorized shares of common stock)
determined by the Board to be in the best interests of the Company
and its stockholders. In accordance with these resolutions, the
Board will not implement any amendment providing for a different
reverse stock split ratio than those specified in each of
Amendments A, B, C, and D.
As explained above, the Reverse Stock Split would be effected
simultaneously for all issued and outstanding shares of common
stock and the exchange ratio would be the same for all issued and
outstanding shares of common stock. The Reverse Stock Split
(including the corresponding adjustment in the number of authorized
shares of common stock) would affect all of our stockholders
uniformly and would not affect any stockholder’s percentage
ownership interests in the Company, except to the extent that the
Reverse Stock Split results in any of our stockholders receiving a
cash payment in lieu of owning a fractional share, as further
described in the section titled “Fractional Shares” below. Common
stock issued pursuant to the Reverse Stock Split would remain fully
paid and non-assessable. The
Reverse Stock Split would not affect the Company’s continuing
obligations under the periodic reporting requirements of the
Exchange Act. Immediately following the Reverse Stock Split,
our common stock would continue to be listed on the Nasdaq Capital
Market under the ticker symbol “BJDX,” although it would receive a
new CUSIP number.
Procedure for Effecting
Reverse Stock Split and Exchange of Stock Certificates
If the Reverse Stock Split (including the corresponding reduction
in the number of authorized shares of common stock) is approved and
adopted by the Company’s stockholders, and if at or after such time
the Board believes that implementing the Reverse Stock Split is in
the best interests of the Company and its stockholders, the Board
will determine the ratio of the Reverse Stock Split to be
implemented. The Reverse Stock Split (including the corresponding
adjustment in the number of authorized shares of common stock)
would become effective as of the Effective Time. The Board would
determine the exact timing of the filing of the Certificate of
Amendment based on its evaluation as to when the filing would be
the most advantageous to the Company and its stockholders. If the
Board does not decide to implement the Reverse Stock Split within
twelve months from the date of the Annual Meeting, the
authority granted in this proposal to implement the Reverse Stock
Split will terminate.
Except as described below under the sections titled “Fractional
Shares” and “Principal Effects of Reverse Stock Split on Stock
Plans and Equity Awards Thereunder,” at the Effective Time, each
whole number of issued and outstanding pre-Reverse Stock Split shares that the Board
has determined will be combined into one post-Reverse Stock Split share (based on the Board’s
final selection of either Amendment A, B, C, and D as the version
of the
26
Table of
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Certificate of Amendment that will be implemented) will,
automatically and without any further action on the part of our
stockholders, be combined into and become one share of common
stock, and each certificate which, immediately prior to the
Effective Time represented pre-Reverse Stock Split shares, will be deemed
for all corporate purposes to evidence ownership of
post-Reverse Stock Split shares.
Fractional Shares
No fractional shares will be issued in connection with
implementation of the Reverse Stock Split. Stockholders of record
at the Effective Time of the Reverse Stock Split who otherwise
would be entitled to receive fractional shares because they hold a
number of pre-Reverse Stock
Split shares not evenly divisible by the number
of pre-Reverse Stock Split
shares for which each post-Reverse
Stock Split share is to be exchanged, will, in lieu of a fractional
share, be entitled, upon surrender to the exchange agent of
certificate(s) representing such pre-Reverse Stock Split shares (except as
described below under “— Book-Entry Shares”), to a cash payment, without
interest, in lieu thereof. The cash payment will equal the fraction
to which the stockholder would otherwise be entitled multiplied by
the average of the closing prices (as adjusted to reflect the
Reverse Stock Split) of our common stock, as reported on the Nasdaq
Stock Market, during the ten consecutive trading days ending
on the trading day that is the second day immediately
prior to the date on which the Reverse Stock Split becomes
effective.
Stockholders should be aware that, under the escheat laws of the
various jurisdictions where stockholders reside, sums due for
fractional interests that are not timely claimed after the
Effective Time may be required to be paid to the designated agent
for each such jurisdiction. Thereafter, stockholders otherwise
entitled to receive such funds may have to seek to obtain them
directly from the state to which they were paid. Stockholders will
not be entitled to receive interest for the period of time between
the Effective Time and the date payment is received.
Book-Entry
Shares
If the Reverse Stock Split is effected, stockholders who hold
uncertificated shares (i.e., shares held in book-entry form and not represented by a physical
stock certificate), either as direct or beneficial owners, will
have their holdings electronically adjusted automatically by our
transfer agent (and, for beneficial owners, by their brokers or
banks that hold in “street name” for their benefit, as the case may
be) to give effect to the Reverse Stock Split. Stockholders who
hold uncertificated shares as direct owners will be sent a
statement of holding from our transfer agent that indicates the
number of post-Reverse Stock Split
shares of our common stock owned in book-entry form.
Certificated
Shares
As soon as practicable after the Effective Time of the Reverse
Stock Split, stockholders will be notified that the Reverse Stock
Split has been effected. We expect that our transfer agent will act
as exchange agent for the purpose of implementing the exchange of
stock certificates. Holders of pre-Reverse Stock Split shares will be asked to
surrender to the exchange agent certificates
representing pre-Reverse Stock Split shares in exchange for
certificates representing post-Reverse
Stock Split shares in accordance with the procedures to be set
forth in a letter of transmittal to be sent by us or our exchange
agent. No new certificates will be issued to a stockholder until
such stockholder has surrendered such stockholder’s outstanding
certificate(s) together with the properly completed and
executed letter of transmittal to the exchange agent.
Any pre-Reverse Stock Split
shares submitted for transfer, whether pursuant to a sale or other
disposition, or otherwise, will automatically be exchanged for
post-Reverse Stock Split shares.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND
SHOULD NOT SUBMIT ANY CERTIFICATE(S) UNTIL REQUESTED TO DO
SO.
Authorized Shares
If and when the Reverse Stock Split is effected, the number of
authorized shares of common stock will contemporaneously be
adjusted by the corresponding authorized share reduction amount. As
described above, Amendments A, B, C, or D set forth above will
decrease the number of authorized shares of common stock from
30,000,000, 15,000,000, 7,500,000, or 6,000,000 respectively.
If the Reverse Stock Split is abandoned or deemed to be abandoned
by our Board, the decrease in the number of authorized shares will
also be abandoned or deemed to be abandoned by our Board.
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Certain Risks Associated with
the Reverse Stock Split
We cannot predict whether the Reverse Stock Split will increase the
market price per share of our common stock proportionately with the
ratio of the combination. The market price of our common stock may
also be based on our performance and other factors, some of which
are unrelated to the number of shares outstanding. Further, there
are a number of risks associated with the Reverse Stock Split,
including:
• Although
the Board believes that a higher stock price may help generate the
interest of new investors, the Reverse Stock Split may not result
in a per share price that will successfully attract certain types
of investors and such resulting share price may not satisfy the
investing guidelines or policies of institutional investors or
investment funds. Further, other factors, such as our financial
results, market conditions and the market perception of our
business, may adversely affect the interest of new investors in the
shares of our common stock. As a result, the trading liquidity of
the shares of our common stock may not improve as a result of the
Reverse Stock Split and there can be no assurance that the Reverse
Stock Split, if completed, will result in the intended benefits
described above.
• The
liquidity of our common stock may be harmed by the Reverse Stock
Split given the reduced number of shares of common stock that would
be outstanding after the Reverse Stock Split, particularly if the
stock price does not proportionately increase as a result of the
Reverse Stock Split.
• The
Reverse Stock Split could be viewed negatively by the market and
other factors, such as those described above, may adversely affect
the market price of the shares of our common stock. Consequently,
the market price per post-Reverse
Stock Split share may not increase in proportion to the reduction
of the number of shares of our common stock outstanding before the
implementation of the Reverse Stock Split. Accordingly, the total
market capitalization of our shares of common stock following the
Reverse Stock Split could be lower than the total market
capitalization before the Reverse Stock Split.
Principal Effects of Reverse
Stock Split on Stock Plans and Equity Awards Thereunder
Pursuant to the terms of the Company’s 2018 and 2021 Stock Plans,
(collectively, the “Stock Plans”) and the agreements governing
equity awards thereunder, the Board or a committee thereof, as
applicable, will adjust the number of shares of common stock
available for future grant, the number of shares of common stock
underlying outstanding awards, the exercise price per share of
outstanding stock options, and other terms of outstanding awards
issued pursuant to the Stock Plans to equitably reflect the effects
of the Reverse Stock Split. With respect to any such outstanding
equity awards, the contemplated equitable adjustments will result
in approximately the same aggregate exercise price being required
to be paid under such stock options, and approximately the same
value of shares of common stock being delivered upon exercise,
vesting or settlement of such awards immediately following the
Reverse Stock Split as was the case immediately preceding the
Reverse Stock Split. Any fractional shares that would otherwise
result from the Reverse Stock Split adjustments described above
with respect to outstanding equity awards will be eliminated
through rounding or as otherwise determined by the Board or a
committee thereof in accordance with the terms of such Stock Plans
and award agreements thereunder.
Accounting Matters
The implementation of the Reverse Stock Split would not affect the
common stock capital account on our balance sheet. However, because
the par value of our common stock would remain unchanged at the
Effective Time of the split, the components that make up the common
stock capital account would change by offsetting amounts. Depending
on the size of the Reverse Stock Split that the Board decides to
implement, the stated capital component would be reduced
proportionately based upon the Reverse Stock Split and the
additional paid-in capital
component would be increased with the amount by which the stated
capital is reduced. Immediately after the Reverse Stock Split, the
per share net income or loss and net book value of our common stock
would be increased because there will be fewer shares of common
stock outstanding. All historic share and per share amounts in our
financial statements and related footnotes would be adjusted
accordingly for the Reverse Stock Split.
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Effect on Par
Value
The proposed amendment to our amended and restated certificate of
incorporation to implement the Reverse Stock Split would not affect
the par value of our common stock, which will remain at $0.0001 per
share.
Dividends
We have never declared or paid cash dividends on our capital stock.
We currently intend to retain all of our future earnings, if any,
to finance the operation, development and growth of our
business.
While the timing, declaration and payment of any future dividends
to holders of our common stock fall within the discretion of our
Board and will depend on our operating results, earnings, financial
condition, the capital requirements of our business and other
factors, our Board expects that the amount of future dividends, if
any, would be adjusted accordingly to reflect the Reverse Stock
Split.
No
Going Private Transaction
Notwithstanding the decrease in the number of outstanding shares
following any implementation of the Reverse Stock Split, our Board
does not intend for this transaction to be the first step in a
“going private transaction” within the meaning of
Rule 13e-3 of the
Exchange Act.
Potential Anti-Takeover
and
Dilutive Effect
The purpose of the Reverse Stock Split is not to establish any
barriers to a change of control or acquisition of the Company.
However, because the number of authorized shares of common stock
would be decreased at a lower ratio than the number of issued and
outstanding shares of common stock, this proposal, if adopted and
implemented, will result in a 50% relative increase in the number
of authorized but unissued shares of our common stock
vis-à-vis the outstanding shares of
our common stock and could, under certain circumstances, have an
anti-takeover effect. Shares of Common
Stock that are authorized but unissued provide our Board with
flexibility to effect, among other transactions, public or private
financings, mergers, acquisitions, stock dividends, stock splits
and the granting of equity incentive awards. However, these
authorized but unissued shares may also be used by our Board,
consistent with and subject to its fiduciary duties, to deter
future attempts to gain control of us or make such actions more
expensive and less desirable. After implementation of the proposed
amendment, our Board will continue to have authority under the
provisions of our amended and restated certificate of incorporation
to issue additional shares from time to time without delay or
further action by the Company’s stockholders except as may be
required by applicable law or Nasdaq listing rules, assuming the
Company remains listed on a Nasdaq market. Our Board is not aware
of any attempt to take control of our business and has not
considered the Reverse Stock Split to be a tool to be utilized as a
type of anti-takeover device. We
currently have no plans, proposals or arrangements to issue any
shares of common stock that would become newly available for
issuance as a result of the Reverse Stock Split.
In addition, if we do issue additional shares of our common stock,
the issuance could have a dilutive effect on earnings per share and
the book or market value of our issued and outstanding common
stock, depending on the circumstances, and would likely dilute a
stockholder’s percentage voting power in the Company. Holders of
common stock are not entitled to preemptive rights or other
protections against dilution. Our Board intends to take these
factors into account before authorizing any new issuance of
shares.
No
Dissenters’ Appraisal Rights
Under the Delaware General Corporation Law, the Company’s
stockholders are not entitled to dissenters’ appraisal rights with
respect to the Reverse Stock Split, and the Company will not
independently provide stockholders with any such right.
Certain U.S. Federal
Income Tax Consequences of the Reverse Stock Split
The following summary describes certain U.S. federal income
tax consequences of the Reverse Stock Split to holders of our
common stock. This summary does not address all of the
U.S. federal income tax consequences that may be relevant to
any particular holder of our common stock, including tax
considerations that arise from rules of general application to all
taxpayers or to certain classes of taxpayers or that are generally
assumed to be known by investors.
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This summary also does not address the tax consequences to
(i) persons that may be subject to special treatment under
U.S. federal income tax law, such as banks, insurance
companies, thrift institutions, regulated investment companies,
real estate investment trusts, tax-exempt organizations, “qualified foreign
pension funds,” partnerships (or other entities classified as
partnerships for U.S. federal income tax purposes) and
investors therein, “U.S. holders” (as defined below) whose
functional currency is not the U.S. dollar,
U.S. expatriates, persons subject to the alternative minimum
tax, persons who acquired our common stock through the exercise of
employee stock options or otherwise as compensation, traders in
securities that elect to mark to market and dealers in securities
or currencies, (ii) persons that hold our common stock as part
of a position in a “straddle” or as part of a “hedging,”
“conversion” or other integrated investment transaction for
U.S. federal income tax purposes, or (iii) persons that
do not hold our common stock as “capital assets” (generally,
property held for investment). This summary is based on the
provisions of the Code, U.S. Treasury regulations,
administrative rulings and judicial authority, all as in effect as
of the date hereof. Subsequent developments in U.S. federal
income tax law, including changes in law or differing
interpretations, which may be applied retroactively, could have a
material effect on the U.S. federal income tax consequences of
the Reverse Stock Split. This summary does not address the Medicare
tax on net investment income or the effects of any state, local or
foreign tax laws.
Each holder of our common
stock should consult its own tax advisor regarding the
U.S. federal, state, local and foreign income and other tax
consequences of the Reverse Stock Split.
If a partnership (or other entity classified as a partnership for
U.S. federal income tax purposes) is the beneficial owner of
our common stock, the U.S. federal income tax treatment of a
partner in the partnership will generally depend on the status of
the partner and the activities of the partnership. Partnerships
that hold our common stock, and partners in such partnerships,
should consult their own tax advisors regarding the
U.S. federal income tax consequences of the Reverse Stock
Split.
U.S. Holders. The
discussion in this section is addressed to “U.S. holders”. A
“U.S. holder” is a beneficial owner of our common stock that
is a citizen or individual resident of the United States, a
corporation (or other entity classified as a corporation for
U.S. federal income tax purposes) organized in or under the
laws of the United States or any state thereof or the District
of Columbia or a trust or estate the income of which is subject to
U.S. federal income taxation regardless of its source. The
Reverse Stock Split should be treated as a recapitalization for
U.S. federal income tax purposes. Therefore, except as
described below with respect to a cash payment from the exchange
agent in lieu of fractional shares, no gain or loss will be
recognized upon the Reverse Stock Split. Accordingly, the aggregate
tax basis in the common stock received pursuant to the Reverse
Stock Split should equal the aggregate tax basis in the common
stock surrendered (excluding the portion of the tax basis that is
allocable to any fractional share), and the holding period for the
common stock received should include the holding period for the
common stock surrendered. A U.S. holder who receives a cash
payment from the exchange agent in lieu of a fractional share of
our common stock pursuant to the Reverse Stock Split generally
should recognize capital gain or loss in an amount equal to the
difference between the amount of cash received and the
U.S. holder’s tax basis in the shares of our common stock
surrendered that is allocated to the fractional share of our common
stock. The capital gain or loss should be long term capital gain or
loss if the U.S. holder’s holding period for our common stock
surrendered exceeded one year at the Effective Time. The
deductibility of net capital losses by individuals and corporations
is subject to limitations.
U.S. holders that have acquired different blocks of our common
stock at different times or at different prices are urged to
consult their tax advisors regarding the allocation of their
aggregate adjusted basis among, and the holding period of, our
common stock.
U.S. Information
Reporting and Backup
Withholding. Information returns
generally will be required to be filed with the Internal Revenue
Service (“IRS”) with respect to the receipt of a cash payment from
the exchange agent in lieu of a fractional share of our common
stock pursuant to the Reverse Stock Split, unless a
U.S. holder is an exempt recipient. In addition,
U.S. holders may be subject to a backup withholding tax (at
the current applicable rate of 24%) on the payment of this cash if
they do not provide their taxpayer identification numbers in the
manner required or otherwise fail to comply with applicable backup
withholding tax rules. Backup withholding is not an additional tax.
Any amounts withheld under the backup withholding rules may be
refunded or allowed as a credit against the U.S. holder’s
federal income tax liability, if any, provided the required
information is timely furnished to the IRS.
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Non-U.S. Holders. The
discussion in this section is addressed to “non-U.S. holders”. A non-U.S. holder is a beneficial owner of our
common stock that is neither a U.S. holder nor a partnership
(or other entity classified as a partnership for U.S. federal
income tax purposes). Generally, except as described below with
respect to a cash payment from the exchange agent in lieu of
fractional shares, non-U.S. holders will not recognize any gain or
loss upon the Reverse Stock Split. Any gain recognized with respect
to a cash payment received from the exchange agent in lieu of a
fractional share will not be subject to U.S. federal income
tax unless (i) the gain is effectively connected with the
conduct of a trade or business in the United States (and, if
certain income tax treaties apply, is attributable to
a non-U.S. holder’s
permanent establishment in the United States), (ii) with
respect to non-U.S. holders
who are individuals, the non-U.S. holder is present in the
United States for 183 days or more in the relevant
taxable year and certain other conditions are met or (iii) the
gain is subject to tax pursuant to the “FIRPTA” rules discussed
below. A non-U.S. holder
described in (i) above will be subject to tax on such gain in
the same manner as if such non-U.S. holder were a United States person
as described in the Code, and, if such non-U.S. holder is a corporation, such gain may
be subject to a “branch profits tax” at a 30% rate or such lower
rate as may be specified by an applicable income tax treaty. An
individual non-U.S. holder
described in (ii) above will be subject to a 30% (or such
lower rate as may be specified by an applicable income tax treaty)
tax on such gain, which gain may be offset by United States
source capital losses even though the individual is not considered
a resident of the United States.
Generally, a corporation is a “United States real property
holding corporation” if the fair market value of its
United States real property interests equals or exceeds 50% of
the sum of the fair market value of its worldwide real property
interests and its other assets used or held for use in a trade or
business (all as determined for U.S. federal income tax
purposes). We do not believe that we are or will become
“United States real property holding corporation” for
U.S. federal income tax purposes.
If we are, or have been at any time during the shorter of
(i) the five-year period
preceding the recognition of any gain with respect to any cash
payment received in lieu of a fractional share of our common stock
(as described below) and (ii) a non-U.S. holder’s holding period for its common
stock (such shorter period, the “relevant period”), a
“United States real property holding corporation,”
a non-U.S. holder may be
subject to U.S. federal income tax and/or withholding tax
under the Foreign Investment in Real Property Tax
Act of 1980 (“FIRPTA”) with respect to any cash payment
received in lieu of a fractional share of our common stock.
Specifically, except as described below, a non-U.S. holder would generally be subject to
U.S. federal income tax on any gain recognized with respect to
such cash payment in the same manner as if
such non-U.S. holder were a
United States person as described in the Code (unless an
applicable income tax treaty provides otherwise), although
a non-U.S. holder that is a
corporation would not be subject to the “branch profits tax”
described above on any such gain. In addition, except as described
below, a 15% withholding tax may apply to the cash payment
received, although the payment would generally be exempt from such
withholding tax if the common stock held by
the non-U.S. holder is of a
class that is “regularly traded” (as defined by applicable Treasury
regulations) on an established securities market (such as the
Nasdaq Capital Market, where our common stock is currently listed).
Furthermore, the non-U.S. holder would generally be required to
file a U.S. federal income tax return for the taxable year in
which the gain is realized and subject to U.S. federal income
tax as a result of our status as a “United States real
property holding corporation.”
Notwithstanding the foregoing discussion, a non-U.S. holder will be exempt from
U.S. federal income and withholding tax on any cash payment
received in lieu of a fractional share of our common stock if
(i) at any time during the calendar year, any class of our
common stock is “regularly traded” (as defined by applicable
Treasury regulations) on an established securities market (such as
the Nasdaq Capital Market, where our common stock is currently
listed) and (ii) (x) if the common stock held by
the non-U.S. holder is
“regularly traded” on an established securities market,
the non-U.S. holder does not
actually or constructively own, and has not actually or
constructively owned at any time during the relevant period, more
than 5% of such regularly traded class of common stock or
(y) if the common stock held by the non-U.S. holder is not “regularly traded” on an
established securities market, on the date that
the non-U.S. holder acquired
such common stock it had a fair market value less than or equal to
5% of the fair market value of the regularly traded class of common
stock.
Non-U.S. holders should
consult their own tax advisors about how the FIRPTA rules would
apply to them.
U.S. Information
Reporting and Backup Withholding Tax. In
general, backup withholding and information reporting will not
apply to payment of cash from the exchange agent in lieu of a
fractional share of our common stock to a non-U.S. holder pursuant to the Reverse Stock
Split if the non-U.S. holder
certifies under penalties of perjury that it is
a non-U.S. holder and the
applicable withholding agent does not have actual knowledge or
reason to know to the
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contrary. Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules may be refunded or
allowed as a credit against the non-U.S. holder’s U.S. federal income tax
liability, if any, provided that certain required information is
timely furnished to the IRS.
Interests of Directors and
Executive Officers
Our directors and executive officers have no substantial interests,
directly or indirectly, in the matters set forth in this proposal
except to the extent of their ownership of shares of our common
stock and equity awards granted to them pursuant to the Stock
Plans.
Reservation of Right to
Abandon Reverse Stock Split
We reserve the right to not file the Certificate of Amendment and
to abandon any Reverse Stock Split (including all of the fixed
reverse stock split ratios and the corresponding reduction in the
number of authorized shares of common stock) without further action
by our stockholders at any time before the effectiveness of the
filing with the Secretary of State of the State of Delaware of the
Certificate of Amendment, even if the authority to effect these
amendments is approved and adopted by our stockholders at the
Annual Meeting. By voting in favor of the Reverse Stock Split
(including each of the fixed reverse stock split ratios and the
corresponding reduction in the number of authorized shares of
common stock), you are expressly also authorizing the Board to
delay, not proceed with, and abandon, the Reverse Stock Split
(including all of the fixed reverse stock split ratios and the
corresponding reduction in the number of authorized shares of
common stock) and the Certificate of Amendment if it should so
decide, in its sole discretion, that such actions are advisable and
in the best interests of the Company and its stockholders.
Vote
Required
The approval of Proposal 2 requires the affirmative vote of a
majority of the shares outstanding and entitled to vote at the
Annual Meeting. Broker non-votes will
not be taken into account in determining the outcome of the
proposal, and abstentions will be counted as votes against the
proposal. Holders of proxies solicited by this proxy statement will
vote the proxies received by them as directed on the proxy card or,
if no direction is made, then “FOR” the proposal.
Recommendation of our
Board
OUR
BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL OF AN
AMENDMENT TO OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
TO EFFECT A REVERSE STOCK SPLIT OF OUR COMMON STOCK.
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PROPOSAL 3:
TO RATIFY THE APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
Our Audit Committee has selected Wolf & Company P.C. as
our independent registered public accounting firm to audit our
financial statements for the fiscal year ending December 31,
2023. Our stockholders are being asked to ratify this appointment.
In the event that ratification of this selection of auditors is not
approved by the stockholders, we will reassess our selection of
auditors. Representatives of Wolf & Company P.C. are
expected to be present at the Annual Meeting, will be available to
respond to appropriate questions, and will have the opportunity to
make a statement at the Annual Meeting.
Aggregate fees for professional services rendered by
Wolf & Company P.C. for their services for the
fiscal years ended December 31, 2022 and 2021,
respectively, were as follows:
|
|
2022
|
|
2021
|
|
Audit Fees
|
|
$
|
142,636
|
|
$
|
175,164
|
|
Audit-related fees
|
|
|
5,420
|
|
|
100,500
|
|
Tax fees
|
|
|
6,600
|
|
|
5,300
|
|
All other fees
|
|
|
—
|
|
|
—
|
|
TOTAL
|
|
$
|
154,656
|
|
$
|
280,964
|
Audit Fees
Audit fees represent the aggregate fees billed for professional
services rendered by our independent accounting firm for the audit
of our annual financial statements, review of financial statements
included in our quarterly reports, review of registration
statements or services that are normally provided in connection
with statutory and regulatory filings or engagements for those
fiscal years.
Audit-Related
Fees
Audit-related fees represent the
aggregate fees billed for assurance and related services that are
reasonably related to the performance of the audit or review of our
financial statements and are not reported under Audit Fees.
Tax
Fees
Tax fees represent the aggregate fees billed for professional
services rendered by our principal accountants for tax return
preparation and compliance for such years.
All
Other Fees
All other fees represent the aggregate fees billed for products and
services other than the services reported in the other
categories.
Audit Committee
Pre-Approval
Policies and
Procedures
The Audit Committee on an annual basis reviews audit and
non-audit services performed by the
independent auditors. All audit and non-audit services are pre-approved by the Audit Committee, which considers,
among other things, the possible effect of the performance of such
services on the auditors’ independence.
Vote
Required and Recommendation of the Board of Directors
The approval of Proposal 2 requires the affirmative vote of a
majority of the shares present in person or by proxy and entitled
to vote on the matter. Broker non-votes will not be taken into account in
determining the outcome of the proposal, and abstentions will be
counted as votes against the proposal. The Board recommends that
stockholders vote FOR the ratification of the appointment of
Wolf & Company P.C., our independent registered public
accounting firm for the fiscal year ending
December 31, 2023.
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AUDIT COMMITTEE
REPORT
The Audit Committee assists the Board with its oversight
responsibilities regarding the Company’s financial reporting
process. The Company’s management is responsible for the
preparation, presentation and integrity of the Company’s financial
statements and the reporting process, including the Company’s
accounting policies, internal control over financial reporting and
disclosure controls and procedures. Wolf & Company P.C.,
the Company’s independent registered public accounting firm, is
responsible for performing an audit of the Company’s financial
statements.
We have reviewed and discussed with management and Wolf &
Company P.C. the Company’s audited financial statements. We
discussed with Wolf & Company P.C. the overall scope and
plans of their audit. We met with Wolf & Company P.C.,
with and without management present, to discuss the results of its
examinations, its evaluation of the Company’s internal controls,
and the overall quality of the Company’s financial reporting.
With regard to the fiscal year ended December 31, 2022, the
Audit Committee (i) reviewed and discussed with management the
Company’s audited financial statements as of December 31,
2022, and for the year then ended; (ii) discussed with
Wolf & Company P.C. the matters required by Public Company
Accounting Oversight Board (“PCAOB”) and the Securities and
Exchange Commission; (iii) received the written
disclosures and the letter from Wolf & Company P.C.
required by applicable requirements of the PCAOB regarding
Wolf & Company P.C.’s communications with the Audit
Committee regarding independence; and (iv) discussed with
Wolf & Company P.C. their independence.
Based on the review and discussions described above, the Audit
Committee recommended to the Company’s Board that the Company’s
audited financial statements be included in the Company’s Annual
Report on Form 10-K for the
fiscal year ended December 31, 2022, for filing with the
Securities and Exchange Commission.
Gary Gemignani (Chairperson)
Douglas Wurth
Donald Chase
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AVAILABILITY OF ANNUAL REPORT
ON FORM 10-K
A
copy of our 2022 Annual Report on
Form 10-K has been mailed
concurrently with this proxy statement to stockholders entitled to
notice of and to vote at the Annual Meeting, provided that we have
not included the exhibits to Form 10-K. We will
provide copies of these exhibits without cost upon request by
eligible stockholders. Requests for copies of such exhibits should
be mailed to Bluejay Diagnostics, Inc., 360 Massachusetts Avenue,
Suite 203, Acton, MA 01720, Attention: Corporate
Secretary.
OTHER PROPOSED
ACTION
Our Board does not intend to bring any other matters before the
Annual Meeting, nor does it know of any matters which other persons
intend to bring before the Annual Meeting. If, however, other
matters not mentioned in this proxy statement properly come before
the Annual Meeting, the persons named in the accompanying form of
proxy will vote thereon in accordance with the recommendation of
the Board.
HOUSEHOLDING OF PROXY
MATERIALS
The SEC has adopted rules that permit companies and intermediaries
(e.g., brokers) to satisfy the delivery requirements for proxy
materials with respect to two or more stockholders sharing the same
address by delivering a single proxy statement addressed to those
stockholders. This process, which is commonly referred to as
“householding,” potentially means extra convenience for
stockholders and cost savings for companies.
A number of brokers with account holders who are the Company’s
stockholders may be “householding” our proxy materials. A single
copy of the proxy materials may be delivered to multiple
stockholders sharing an address unless contrary instructions have
been received from the affected stockholders. Once you have
received notice from your broker that they will be householding
communications to your address, householding will continue until
you are notified otherwise or until you revoke your consent. If, at
any time, you no longer wish to participate in householding and
would prefer to receive a separate copy of the proxy materials,
please (1) notify your broker, or (2) direct your written
request to Bluejay Diagnostics, Inc., 360 Massachusetts Avenue,
Suite 203, Acton, MA 01720, Attention: Corporate
Secretary. Stockholders who currently receive multiple copies of
the proxy materials at their address and would like to request
householding of their communications should contact their brokers.
In addition, upon written request to the address set forth above,
we will promptly deliver a separate copy of the proxy materials to
any stockholder at a shared address to which a single copy of the
documents was delivered.
STOCKHOLDER PROPOSALS AND
SUBMISSIONS
In order to be eligible for inclusion in our proxy statement and
form of proxy for our next Annual Meeting, a proposal of a
stockholder, including the submission of a stockholder nominee for
election to our Board, must be received at our principal executive
offices located in Acton, Massachusetts no later than
_____, 2024. For any proposal that a stockholder wishes to
propose for consideration at our next Annual Meeting but does not
wish to include in the proxy materials for that meeting, our
Amended and Restated Bylaws require a notice of the proposal to be
delivered not less than 90 days but not more than
120 days prior to the anniversary of our preceding annual
meeting of stockholders. The notice of the proposal also must
comply with the content requirements for such notices set forth in
our Amended and Restated Bylaws.
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ANNEX A
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION
OF
BLUEJAY
DIAGNOSTICS, INC.
Bluejay Diagnostics, Inc. (the “Corporation”), a corporation
organized and existing under and by virtue of the provisions of the
Delaware General Corporation Laws (the “DGCL”), does hereby certify
as follows:
FIRST: The name of the
Corporation is Bluejay Diagnostics, Inc., the date of filing of its
original Certificate of Incorporation with the Secretary of State
of the State of Delaware was March 20, 2015, and the date of
filing of its Amended and Restated Certificate of Incorporation
with the Secretary of State of the State of Delaware was October
22, 2021.
SECOND: The text
currently constituting the first sentence of Section 4.1
(Authorized Capital Stock) of Article IV (Capitalization) of
the Amended and Restated Certificate of Incorporation of the
Corporation is amended and restated in its entirety to read as
follows:
“The total number of shares of all classes of capital stock, each
with a par value of $0.0001 per share, which the Corporation is
authorized to issue is [Amendment
A: THIRTY-FIVE MILLION
(35,000,000) shares, consisting of (a) THIRTY MILLION
(30,000,000) shares; Amendment
B: TWENTY MILLION (20,000,000) shares, consisting of
(a) FIFTEEN MILLION (15,000,000) shares; Amendment
C: TWELVE MILLION FIVE HUNDRED THOUSAND (12,500,000)
shares, consisting of (a) SEVEN MILLION FIVE HUNDRED
(7,500,000) shares; Amendment
D: ELEVEN MILLION (11,000,000) shares, consisting of
(a) SIX MILLION (6,000,000) shares;] of common stock (the
“Common Stock”), and (b) FIVE MILLION (5,000,000) shares of
preferred stock (the “Preferred Stock”).; Upon the effectiveness of
this Certificate of Amendment to the Amended and Restated
Certificate of Incorporation of the Corporation, each [Amendment
A: 5, Amendment B: 10,
Amendment C: 20,
Amendment D: 25]
shares of Common Stock issued and outstanding at such time shall,
automatically and without any further action on the part of the
Corporation or the holder thereof, be combined into one validly
issued, fully paid and non-assessable share of Common Stock (the
“Reverse Stock Split”). The par value of the Common Stock following
the Reverse Stock Split shall remain $0.0001 per share. No
fractional shares shall be issued, and, in lieu thereof, the
Corporation shall pay cash equal to such fraction multiplied by the
fair market value of a share of Common Stock, as determined by the
Board of Directors of the Corporation. Each certificate that
immediately prior to the effectiveness of this Certificate of
Amendment to the Amended and Restated Certificate of Incorporation
of the Corporation represented shares of Common Stock (an “Old
Certificate”) shall thereafter represent that number of shares of
Common Stock into which the shares of Common Stock represented by
the Old Certificate shall have been combined, subject to the
elimination of fractional share interests as described above.”
THIRD: That
resolutions were duly adopted by unanimous written consent of the
Board of Directors of the Corporation setting forth this amendment
to the Amended and Restated Certificate of the Corporation.
FOURTH: That said
amendment was duly adopted in accordance with the provisions of
Section 242 of the General Corporation Law of the State of
Delaware.
IN
WITNESS WHEREOF, said corporation has caused this
Certificate of Amendment to be signed on its behalf, by
__________, its
__________,
this _____day of ___________, ____.
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BLUEJAY DIAGNOSTICS,
INC.
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By:
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Name:
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Title:
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A-1
Table of
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YOUR VOTE IS IMPORTANT. PLEASE VOTE
TODAY. Vote by Internet —QUICK *** EASY IMMEDIATE — 24 Hours a Day,
7 Days a Week or by Mail Bluejay Diagnostics, Inc. Your Internet
vote authorizes the named proxies to vote your shares in the same
manner as if you marked, signed and returned your proxy card. Votes
submitted electronically over the Internet must be received by
11:59 p.m., Eastern Time, on June 13, 2023.
INTERNET/MOBILE — www.cstproxyvote.com Use the Internet to vote
your proxy. Have your proxy card available when you access the
above website. Follow the prompts to vote your shares. MAIL — Mark,
sign and date your proxy card and return it in the
postage-paid envelope
provided. PLEASE DO NOT RETURN THE PROXY CARD IF YOU ARE VOTING
ELECTRONICALLY. FOLD HERE • DO NOT SEPARATE • INSERT IN ENVELOPE
PROVIDED P ROXY THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” P
ROPOS ALS 1, 2, AND 3.
Please mark your votes like this 1. Election of Directors (1) Neil
(Indranil) Dey (2) Douglas Wurth (3) Svetlana Dey (4) Donald R.
Chase (5) Fred S. Zeidman (6) Gary Gemignani FOR all Nominees
listed to the left WITHHOLD AUTHORITY to vote (except as marked to
the contrary for all nominees listed to the left) (Instruction: To
withhold authority to vote for any individual nominee, strike a
line through that nominee’s name in the list above) 2. Adopt an
Amendment to the Company’s Certificate of Incorporation to effect a
reverse stock split of the Company’s common stock and adjust the
number of shares authorized FOR AGAINST ABSTAIN 3. Ratification of
Wolf & Company, P.C., as independent registered public
accounting firm for year ending December 31, 2023
CONTROL NUMBER Signature
___________________________________Signature, if held
jointly______________________________________ Date ____________,
2023. Note: Please sign exactly as name appears hereon. When shares
are held by joint owners, both should sign. When signing as
attorney, executor, administrator, trustee, guardian, or corporate
officer, please give title as such.
Table of
Contents
Important Notice Regarding the
Internet Availability of Proxy Materials for the Annual Meeting of
Stockholders The 2023 Proxy Statement and the 2022 Annual Report to
Stockholders are available at:
https://www.cstproxy.com/bluejaydx/2023 FOLD HERE • DO NOT SEPARATE
• INSERT IN ENVELOPE PROVIDED PROXY THIS P ROXY IS S OLICITED ON
BEHALF OF THE BOARD OF DIRECTORS BLUEJAY DIAGNOSTICS, INC. The
undersigned appoints Neil (Indranil) Dey and Kenneth Fisher, and
each of them, as proxies, each with the power to appoint his
substitute, and authorizes each of them to represent and to vote,
as designated on the reverse hereof, all of the shares of common
stock of Bluejay Diagnostics, Inc. held of record by the
undersigned at the close of business on May 10, 2023 at
the Annual Meeting of Stockholders of Bluejay Diagnostics, Inc. to
be held on June 14, 2023, or at any adjournment
thereof. THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED AS
INDICATED. IF NO CONTRARY INDICATION IS MADE, THE PROXY WILL BE
VOTED IN FAVOR OF ELECTING THE SIX NOMINEES TO THE BOARD OF
DIRECTORS AND IN FAVOR OF PROPOSALS 2 AND 3, AND IN
ACCORDANCE WITH THE J UDGMENT OF THE PERSONS NAMED AS PROXY HEREIN
ON ANY OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE ANNUAL
MEETING. THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF
DIRECTORS. (Continued and to be marked, dated and signed, on the
other side)