UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
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Filed
by the Registrant [X]
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Filed
by a Party other than the Registrant [ ]
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Check
the appropriate box:
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[X]
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Preliminary
Proxy Statement
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Confidential,
for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
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Definitive
Proxy Statement
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Definitive
Additional Materials
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Soliciting
Material under §240.14a-12
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IMAC
Holdings, Inc.
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(Name
of Registrant as Specified In Its Charter)
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(Name
of Person(s) Filing Proxy Statement, if other than the Registrant)
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Payment
of Filing Fee (Check the appropriate box):
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[X]
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No
fee required.
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Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction applies:
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(2)
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Aggregate
number of securities to which transaction applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the
filing fee is calculated and state how it was determined):
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(4)
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Proposed
maximum aggregate value of transaction:
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(5)
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Total
fee paid:
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[ ]
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Fee
paid previously with preliminary materials.
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Check
box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting
fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement No.:
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(3)
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Filing
Party:
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(4)
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Date
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IMAC
HOLDINGS, INC.
NOTICE
OF ANNUAL MEETING OF STOCKHOLDERS
AUGUST 9, 2021
To
our Stockholders:
The
annual meeting of stockholders (the “Annual Meeting”) of IMAC Holdings, Inc. (“IMAC” or the “Company”)
will be held on Monday, August 9, 2021, at our offices located at 1605 Westgate Circle, Brentwood, Tennessee 37027, at 11:00 a.m., local
time. At the Annual Meeting, you will be asked to consider and vote on:
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1.
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the
election of five directors to the board of directors of the Company to serve for one year;
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2.
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the
amendment to the Company’s certificate of incorporation to increase the number of authorized shares of common stock to 60,000,000
shares from 30,000,000 shares;
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3.
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the
ratification of the appointment of Daszkal Bolton LLP as auditors of the Company for 2021;
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4.
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the
approval, on an advisory (non-binding) basis, of the compensation of the Company’s named executive officers; and
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5.
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the
approval, on an advisory (non-binding) basis, of the frequency of future advisory votes on the compensation of the Company’s
named executive officers.
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Action
will also be taken on any other matters that properly come before the Annual Meeting. If you are a stockholder of record at the close
of business on June 18, 2021, you are entitled to vote at the meeting or at any adjournment or postponement of the meeting.
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” EACH OF THE PROPOSALS IN THE PROXY STATEMENT,
“FOR” THE ELECTION OF EACH OF THE DIRECTOR NOMINEES AND ONE YEAR FOR THE FREQUENCY OF FUTURE ADVISORY VOTES ON
THE COMPENSATION OF THE COMPANY’S NAMED EXECUTIVE OFFICERS.
IMPORTANT
NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR THE ANNUAL MEETING TO BE HELD ON AUGUST 9, 2021, AT 11:00 A.M., LOCAL TIME.
As
permitted by the “Notice and Access” rules of the Securities and Exchange Commission (the “SEC”), the Notice
of Annual Stockholder Meeting, our Proxy Statement, a form of the proxy card and our Annual Report on Form 10-K for the year ended December
31, 2020 (the “Annual Report”) are available online at https://ir.imacregeneration.com.
This
Proxy Statement and the accompanying form of proxy are dated June 30, 2021. On or about June 30, 2021, we commenced mailing to our stockholders
a Notice of Internet Availability of Proxy Materials (the “Notice of Internet Availability”) that contains instructions on
how stockholders may access and review all of the proxy materials and how to vote. Also on or about June 30, 2021, we began mailing printed
copies of the proxy materials to stockholders that previously requested printed copies. If you received a Notice of Internet Availability
by mail, you will not receive a printed copy of the proxy materials in the mail unless you request a copy. If you received a Notice of
Internet Availability by mail and would like to receive a printed copy of our proxy materials, you should follow the instructions for
requesting such materials included in the Notice of Internet Availability.
All
stockholders of the Company are cordially invited to attend the Annual Meeting in person. To assure your representation at the Annual
Meeting, however, you are urged to mark, sign and return the proxy as promptly as possible. If you later desire to revoke your proxy
for any reason, you may do so in the manner provided in the accompanying Proxy Statement. Your shares of the Company’s common stock
will be voted in accordance with the instructions you give in your proxy. You will find more instructions on how to vote in the accompanying
Proxy Statement and the Notice of Internet Availability.
You
may submit a proxy for your shares by mail, fax, email or via the internet no later than 7:00 p.m., Eastern time, on August 8, 2021 (as
directed on the proxy card). If you choose to submit your proxy card by mail, the Company has enclosed an envelope for your use, which
is prepaid if mailed in the United States. If you attend the Annual Meeting and your shares are registered in your name, you may also
vote in person at the Annual Meeting until voting is closed. If your shares are held through a bank, broker or other nominee, because
you are not the stockholder of record, you may not vote your shares in person at the Annual Meeting unless you request and obtain a valid
proxy in your name from your broker, bank or other nominee.
Accompanying
this Notice of Annual Meeting to the Company’s stockholders are (a) the Proxy Statement, and (b) a form of proxy (or a voting instruction
form if you hold shares of common stock through a broker or other intermediary).
YOUR
VOTE IS IMPORTANT REGARDLESS OF THE NUMBER OF SHARES YOU OWN.
The
enclosed materials require the Company’s stockholders to make important decisions with respect to the Company. Please read carefully
the accompanying Proxy Statement, as these documents contain detailed information relating to, among other things, the dissolution of
the Company. If you are in doubt as to how to make these decisions, please consult your financial, legal or other professional advisors.
NEITHER
THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED ANY OF THE
MATTERS TO BE ACTED UPON AT THE ANNUAL MEETING, PASSED UPON THE MERITS OR FAIRNESS OF SUCH MATTERS OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THE DISCLOSURE IN THIS PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
If
you have any questions, or need assistance in voting your shares, please contact our transfer agent, which is assisting us in the solicitation
of proxies:
EQUITY
STOCK TRANSFER
237
West 37th Street, Suite 602
New
York, NY 10018
Tel:
(212) 575-5757
Fax:
(646) 201-9006
Attention:
Shareholder Services
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By
Order of the Board of Directors,
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Jeffrey
S. Ervin
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Chairman
of the Board and Chief Executive Officer
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Brentwood,
Tennessee
June
30, 2021
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Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting of Stockholders
to be Held on August 9, 2021:
This
Notice of Annual Meeting of the Company’s Stockholders, the Proxy Statement for the Annual Meeting (along with related materials)
and the Company’s Annual Report on Form 10-K for the year ended December 31, 2020 are available on the Company’s website,
available at https://ir.imacregeneration.com.
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Special
COVID-19 Note: IMAC Holdings, Inc. is monitoring the impact of the coronavirus pandemic (COVID-19). The health and well-being of
our employees and stockholders is paramount. If public health conditions warrant, we may need to change the location of the Annual
Meeting or switch to a virtual meeting format. Any such change will be announced via press release and the filing of additional proxy
materials with the Securities and Exchange Commission.
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IMAC
HOLDINGS, INC.
1605 Westgate Circle
Brentwood,
Tennessee 37027
PROXY
STATEMENT
ANNUAL
MEETING OF STOCKHOLDERS
Monday,
August 9, 2021
The
annual meeting of stockholders (the “Annual Meeting”) of IMAC Holdings, Inc. (“IMAC,” the “Company,”
“us,” “we” or “our”) will be held on Monday, August 9, 2021, at our offices located at 1605 Westgate
Circle, Brentwood, Tennessee 37027, at 11:00 a.m., local time.
Our
board of directors (the “Board of Directors”) is soliciting your proxy to vote your shares of common stock at the Annual
Meeting or any adjournments of that meeting. This Proxy Statement, which was prepared by our management for the Board of Directors, contains
information about the matters to be considered at the Annual Meeting or any adjournments or postponements of the Annual Meeting. All
proxies will be voted in accordance with the instructions they contain. If you do not specify your voting instructions on the proxy you
submit for the Annual Meeting, it will be voted in accordance with the recommendation of the Board of Directors. You may revoke your
proxy at any time before it is exercised at the Annual Meeting by giving our Secretary written notice to that effect. This Proxy Statement
and our annual report are first being sent to stockholders on or about June 30, 2021.
ABOUT
THE MEETING
What
is being considered at the annual Meeting?
You
will be voting for:
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1.
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the
election of five directors to the Board of Directors to serve for one year;
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2.
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the
amendment to the Company’s certificate of incorporation to increase the number of authorized shares of common stock to 60,000,000
shares from 30,000,000 shares;
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3.
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the
ratification of the appointment of Daszkal Bolton LLP as auditors of the Company for 2021;
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4.
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the
approval, on an advisory (non-binding) basis, of the compensation of the Company’s named executive officers; and
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5.
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the
approval, on an advisory (non-binding) basis, of the frequency of the future advisory votes on the compensation of the Company’s
named executive officers (whether once every year, every two years or three years).
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In
addition, our management will report on our performance and respond to your questions.
The
Board of Directors does not intend to present to the Annual Meeting any matters not referred to in this Proxy Statement. If any proposal
not set forth in this Proxy Statement should be presented for action at the Annual Meeting and is a matter which should come before the
Annual Meeting, it is intended that the shares represented by proxies will be voted with respect to such matters in accordance with the
judgment of the persons voting them.
When
and where is the Annual Meeting going to be held?
The
Annual Meeting will be held on Monday, August 9, 2021, at our offices located at 1605 Westgate Circle, Brentwood, Tennessee 37027, at
11:00 a.m., local time.
Why
did I receive a Notice of Internet Availability of Proxy Materials instead of paper copies of the proxy materials?
We
are using the SEC’s Notice and Access model (“Notice and Access”), which allows us to deliver proxy materials
over the internet, as the primary means of furnishing proxy materials. We believe Notice and Access provides stockholders with
a convenient method to access the proxy materials and vote, while allowing us to conserve natural resources and reduce the costs
of printing and distributing the proxy materials. On or about June 30, 2021, we began mailing to stockholders a Notice
of Internet Availability containing instructions on how to access our proxy materials on the internet and how to vote online.
The Notice of Internet Availability is not a proxy card and cannot be used to vote your shares. If you received a Notice
of Internet Availability this year, you will not receive paper copies of the proxy materials unless you request the materials
by following the instructions on the Notice of Internet Availability.
How
many votes must be present to hold the Annual Meeting?
Your
shares are counted as present at the meeting if you attend the meeting and vote in person or if you properly return a proxy by mail.
In order for us to conduct our meeting, a majority of our outstanding shares as of June 18, 2021, the record date, must be present at
the meeting, in person or by proxy. This is referred to as a quorum. On June 18, 2021, we had 25,200,481 shares issued and outstanding.
Who
can vote at the Annual Meeting?
You
may vote if you owned common stock as of the close of business on June 18, 2021. Each share of stock is entitled to one vote.
Who
is being nominated for director?
The
director candidates nominated for election at the Annual Meeting are Jeffrey S. Ervin, our Chief Executive Officer, Matthew C. Wallis,
DC, our Chief Operating Officer, Maurice E. Evans, Michael D. Pruitt and Cary W. Sucoff.
What
should I do if I receive more than one proxy card or other set of proxy materials from the Company?
If
you hold your shares in multiple accounts or registrations, or in both registered and street name, you will receive a proxy card for
each account. Please sign, date and return all proxy cards you receive from the Company. Only your latest dated proxy for each account
will be voted. We recommend that you contact your broker and/or our transfer agent to consolidate as many accounts as possible under
the same name and address. Our transfer agent is Equity Stock Transfer, tel.: (212) 575-5757.
What
is the difference between holding shares as a record holder and as a beneficial owner?
If
your shares are registered in your name with the Company’s transfer agent, Equity Stock Transfer, you are the “record holder”
of those shares. If you are a record holder, these proxy materials will be provided directly to you.
If
your shares are held in a stock brokerage account, a bank or other holder of record, you are considered the “beneficial owner”
of those shares held in “street name.” If your shares are held in street name, these proxy materials have been forwarded
to you by that organization. As the beneficial owner, you have the right to instruct such organization on how to vote your shares.
How
do I vote?
If
you are a stockholder of record, you may:
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Vote
by internet. You will find the Control number and the internet address in your Notice of Internet Availability.
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2.
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Vote
by email. Mark, date, sign the Proxy Card and send to proxy@equitystock.com
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3.
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Vote
by mail. Mark, date, sign and mail the Proxy Card to Equity Stock Transfer 237 Suite 602 New York, NY 10018 Attn: Shareholder
Services.
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4.
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Vote
by fax. Mark, sign, and date the Proxy Card and promptly return it by fax to (646) 201-9006, Attention: Shareholder Services.
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5.
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Vote
in person. Attend and vote at the Annual Meeting.
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If you vote by internet, email or fax, please DO NOT mail your proxy card.
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If
you are a beneficial owner, you must follow the voting procedures of your nominee included with your proxy materials. If your shares
are held by a nominee and you intend to vote at the Annual Meeting, please bring with you evidence of your ownership as of the record
date (such as a letter from your nominee confirming your ownership or a bank or brokerage firm account statement) and a legal proxy from
your nominee authorizing you to vote your shares.
The
deadline for submitting a proxy by mail, fax, email or electronically via the internet is 7:00 p.m., Eastern time, on August 8, 2021.
Will
my shares be voted if I do not provide my proxy?
Under
applicable rules, if you do not give instructions to your brokerage firm, it will still be able to vote your shares with respect to certain
“discretionary” items, but it will not be allowed to vote your shares with respect to certain “non-discretionary”
items. The ratification of Daszkal Bolton LLP as our independent registered public accounting firm is considered to be a discretionary
item under applicable rules and your brokerage firm will be able to vote on that item even if it does not receive instructions from you,
so long as it holds your shares in its name. The remaining items of business at the Annual Meeting are “non-discretionary”
and if you do not instruct your broker how to vote with respect to such proposals, your broker may not vote with respect to these proposals
and those votes will be counted as “broker non-votes.” “Broker non-votes” are shares that are held in “street
name” by a bank or brokerage firm that indicates on its proxy that it does not have or did not exercise discretionary authority
to vote on a particular matter. Please see “What vote is required to approve each of the matters to be considered at the Annual
Meeting?” for information regarding the vote required to approve the matters being considered at the Annual Meeting and the
treatment of broker non-votes.
If
you hold your shares directly in your own name, they will not be voted if you do not provide a proxy.
If
your shares are held in street name, and you attend the Annual Meeting in person, you must bring an account statement or letter from
your bank or brokerage firm showing that you are the beneficial owner of the shares as of the June 18, 2021 record date in order to be
admitted to the meeting on August 9, 2021. To be able to vote your shares held in street name at the Annual Meeting, you will need to
obtain a proxy card from the holder of record.
Can
I change my mind after I vote?
Yes.
A proxy may be revoked at any time prior to the voting at the Annual Meeting by submitting a later dated proxy (including a proxy authorization
submitted by fax or electronically via the internet prior to the deadline for submitting a proxy by fax or via the internet), by sending
a properly signed written notice of such revocation to the Company’s Secretary in advance of the Annual Meeting or by attending
the Annual Meeting and voting in person. If your shares are held through a bank, broker or other nominee, you may change your voting
instructions by submitting a later dated voting instruction form to your broker, bank or other nominee or fiduciary, or if you obtained
a legal proxy from your broker, bank nominee or fiduciary giving you the right to vote your shares, by attending the Annual Meeting and
voting in person.
What
if I return my proxy card but do not include voting instructions?
Proxy
cards that are signed and returned but do not include voting instructions will be voted “FOR” the election of the
nominee directors recommended by the Board of Directors, “FOR” the amendment to the Company’s certificate of
incorporation to increase the number of authorized shares of common stock, “FOR” the ratification of the appointment
of Daszkal Bolton LLP, “FOR” the approval, on an advisory (non-binding) basis, of the compensation of the Company’s
named executive officers, and “ONE YEAR”, the approval, on an advisory (non-binding) basis, of annual future
advisory votes on the compensation of the Company’s named executive officers.
What
does it mean if I receive more than one proxy?
If
you receive more than one proxy, it means that you hold shares of common stock that are registered in more than one account. For example,
if you own your shares in various registered forms, such as jointly with your spouse, as trustee of a trust or as custodian for a minor,
you will receive, and you will need to sign and return, a separate proxy card for those shares because they are held in a different form
of record ownership. Therefore, to ensure that all of your shares are voted, you will need to sign and return each proxy card you receive
by mail.
Who
can attend the Annual Meeting?
Only
stockholders of record as of the close of business on June 18, 2021, or their duly appointed proxies, may attend the Annual Meeting.
Stockholders will be asked to present a valid government-issued picture identification, such as a driver’s license or passport.
If you hold your shares through an account with a bank, broker or other nominee, you must obtain a valid proxy in your name from your
bank, broker or other nominee and bring that proxy to the Annual Meeting, together with a valid government-issued picture identification
and a copy of evidence from your bank, broker or other nominee (including a bank or brokerage statement) reflecting your common stock
ownership as of June 18, 2021, the record date for the Annual Meeting. Cameras and video recording devices will not be permitted at the
Annual Meeting. A list of stockholders entitled to vote at the Annual Meeting will be available for examination by any stockholder for
any purpose germane to the Annual Meeting beginning ten days prior to the Annual Meeting during ordinary business hours at 1605 Westgate
Circle, Brentwood, Tennessee 37027, the Company’s principal place of business, and ending on the day prior to the Annual Meeting.
Do
I need an admission ticket to attend the Annual Meeting?
Admission
to the Annual Meeting will be by admission ticket only. If you are a stockholder of record and plan to attend the Annual Meeting, retain
the top portion of your proxy card as your admission ticket and bring it and a valid government-issued picture identification with you
so that you may gain admission to the meeting. If your shares are held through a bank, broker or other nominee, please contact your nominee
and request that the nominee obtain an admission ticket for you or provide you with evidence of your share ownership, which will gain
you admission to the Annual Meeting. Stockholders who do not obtain admission tickets in advance of the Annual Meeting may obtain them
on the date of the Annual Meeting at the registration desk upon verifying their stock ownership as of the record date. All persons attending
the Annual Meeting must present a valid government-issued picture identification along with their admission ticket or proof of beneficial
ownership in order to gain admission to the Annual Meeting. Admission to the Annual Meeting will be expedited if admission tickets are
obtained in advance. Admission tickets may be issued to others at the Company’s discretion.
What
vote is required to approve each of the matters to be considered at the Annual Meeting?
Proposal
1: Election of Directors. In an uncontested election, directors of the Company are elected by the affirmative vote of the majority
of the shares of stock present in person or represented by proxy at the Annual Meeting having a quorum and entitled to vote on the subject
matter. The election at the Annual Meeting will be uncontested. You may vote either “FOR” or “AGAINST” any one
or more of the nominees. Under a majority of the votes standard, the shares voted “FOR” a nominee must exceed the number
of shares voted “AGAINST” that nominee. An abstention will have the same effect as a vote “AGAINST” a nominee.
If you do not instruct your broker how to vote with respect to this item, your broker may not vote your shares with respect to the election
of directors. Any shares not voted by a stockholder will be treated as broker non-votes, and broker non-votes will have no effect
on the results of the election of directors.
Proposal
2: Approval of Increase in Authorized Common Stock. To be approved, this proposal to approve the amendment to the Company’s
certificate of incorporation to increase the number of authorized shares of common stock to 60,000,000 shares from 30,000,000 shares
must receive an affirmative vote from stockholders present in person or represented by proxy at the Annual Meeting representing a majority
of the votes cast on the proposal. Abstentions will have the same effect as a vote “AGAINST” this proposal. If you do not
instruct your broker how to vote with respect to this proposal, your broker may not vote your shares with respect to this proposal. Any
shares not voted by a stockholder will be treated as broker non-votes, and broker non-votes will have no effect on the results with respect
to this proposal.
Proposal
3: Ratification of Independent Registered Public Accounting Firm. To be approved, this proposal to ratify our selection of an independent
registered public accounting firm must receive an affirmative vote from stockholders present in person or represented by proxy at the
Annual Meeting representing a majority of the votes cast on the proposal. Abstentions will have the same effect as a vote “AGAINST”
this proposal. For this proposal, brokerage firms have authority to vote shares of their customers that are held in “street name.”
If a broker does not exercise this authority, it will result in a broker non-vote. Broker non-votes will have no effect on the outcome
of this proposal.
Proposal
4: Approval of Executive Compensation. To be approved, this proposal to approve, on a non-binding, advisory basis, the compensation
of our named executive officers must receive an affirmative vote from stockholders present in person or represented by proxy at the Annual
Meeting representing a majority of the votes cast on the proposal. Abstentions will have the same effect as a vote “AGAINST”
this proposal. If you do not instruct your broker how to vote with respect to this proposal, your broker may not vote your shares with
respect to this proposal. Any shares not voted by a stockholder will be treated as broker non-votes, and broker non-votes will have no
effect on the results with respect to this proposal.
Proposal
5: Frequency of Approval of Executive Compensation. To be approved, this proposal to approve, on a non-binding, advisory basis, the
frequency with which the compensation of our named executive officers is submitted for advisory stockholder approval (whether once every
year, every two years or three years) must receive an affirmative vote from stockholders present in person or represented by proxy at
the Annual Meeting representing a majority of the votes cast on the proposal. Abstentions will have the same effect as a vote “AGAINST”
this proposal. If you do not instruct your broker how to vote with respect to this proposal, your broker may not vote your shares with
respect to this proposal. Any shares not voted by a stockholder will be treated as broker non-votes, and broker non-votes will have no
effect on the results with respect to this proposal.
How
will votes be counted?
Each
share of common stock will be counted as one vote according to the instructions contained on a proper proxy card, whether submitted in
person, by mail, fax, internet, on a ballot voted in person at the Annual Meeting, or in accordance with the instructions provided by
your broker. With respect to all proposals, shares will not be voted in favor of the matter and will not be counted as voting on the
matter, if they are broker non-votes. Assuming the presence of a quorum, abstentions and broker non-votes for a particular proposal will
not be counted as votes cast to determine the outcome of a particular proposal.
Who
will count the votes?
Representatives
of Equity Stock Transfer, LLC, the transfer agent for our common stock, will tabulate the votes.
Will
my vote be kept confidential?
Yes,
your vote will be kept confidential and we will not disclose your vote, unless (1) we are required to do so by law (including in connection
with the pursuit or defense of a legal or administrative action or proceeding) or (2) there is a contested election for the Board of
Directors.
How
does the Board of Directors recommend that I vote on the proposals?
The
Board of Directors recommends that you vote on the proxy card:
“FOR”
the election of each of the five nominees, Jeffrey S. Ervin, Matthew C. Wallis, DC, Maurice E. Evans, Michael D. Pruitt and Cary W. Sucoff,
each to serve for a term of one year (Proposal 1);
“FOR”
the amendment to the Company’s certificate of incorporation to increase the number of authorized shares of common stock (Proposal
2);
“FOR”
the ratification of the selection of Daszkal Bolton LLP as our independent registered public accounting firm for 2021 (Proposal 3);
“FOR”
the approval, on a non-binding, advisory basis, of the compensation of our named executive officers (Proposal 4); and
“FOR”
the approval, on a non-binding, advisory basis, of a frequency of stockholder advisory approval of the compensation of our named executive
officers of once every year (Proposal 5).
Why
are the executive compensation proposal (Proposal 4) and the future frequency of approval of executive compensation proposal (Proposal
5) being included among the items to be considered at the Annual Meeting?
We
have included the executive compensation proposal (Proposal 4) and the future frequency of approval of executive compensation proposal
(Proposal 5) among the items to be considered at the Annual Meeting in order to satisfy the requirements of the Dodd-Frank Wall Street
Reform and Consumer Protection Act of 2010 and Section 14A of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Our stockholders have not previously had the opportunity to hold an advisory vote on executive compensation or the frequency with which
they will hold an advisory vote on executive compensation in the future.
Where
can I find the voting results?
We
will report the voting results in a current report on Form 8-K within four business days after the conclusion of our Annual Meeting.
How
and when may I submit a stockholder proposal, including a stockholder nomination for director, for the Company’s 2022 Annual Meeting?
If
you are interested in submitting a proposal for inclusion in our proxy statement for the 2022 Annual Meeting, you need to follow the
procedures outlined in Rule 14a-8 of the Securities Exchange Act of 1934, or the Exchange Act. To be eligible for inclusion, we must
receive your stockholder proposal for our proxy statement for the 2022 Annual Meeting of Stockholders at our principal corporate offices
in Brentwood, Tennessee no later than March 2, 2022.
In
addition, our bylaws require that we be given advance written notice for nominations for election to our Board of Directors and other
matters that stockholders wish to present for action at an annual meeting other than those to be included in our proxy statement under
Rule 14a-8. Pursuant to our bylaws, if notice of any stockholder proposal is received before April 11, 2021, or after May 11, 2022, then
the notice will be considered untimely and we are not required to present such proposal at the 2022 Annual Meeting.
The
stockholder’s notice to the Secretary must set forth (1) as to each person whom the stockholder proposes to nominate for election
as a director (a) his/her name, age, business address and residence address, (b) his/her principal occupation and employment, (c) the
number of shares of common stock of IMAC which are owned beneficially or of record by him/her as well as, among other things, any derivative
or synthetic instrument, convertible security, put, option, stock appreciation right or similar rights; (d) a description of any agreement,
arrangement or understanding; and (e) any other information relating to the nominee that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section
14 of the Exchange Act, and the rules and regulations promulgated thereunder; (2) as to any other business that the stockholder proposes
to bring before the 2022 annual meeting, (a) a brief description of the business desired to be brought before the 2022 annual meeting,
(b) the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such
business includes a proposal to amend our bylaws, the language of the proposed amendment), (c) the reasons for conducting such business
at the 2022 annual meeting, and (d) any material interest in such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (3) as to the stockholder giving the notice (a) his/her name and record address and (b) the number of
shares of IMAC’s common stock that are owned beneficially or of record by him/her. The notice delivered by a stockholder must be
accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. The stockholder
must be a stockholder of record on the date on which he/she gives the notice described above and on the record date for the determination
of stockholders entitled to vote at the 2022 annual meeting.
These
requirements are separate from and in addition to the requirements of the SEC that a stockholder must meet in order to have a stockholder
proposal included in our Proxy Statement.
Any
proposals, nominations or notices should be sent to:
IMAC
Holdings, Inc.
1605
Westgate Circle
Brentwood,
Tennessee 37027
Attention:
Corporate Secretary
What
if I vote for some but not all of the proposals?
Shares
of common stock represented by proxies received by the Company (whether received through the return of the proxy card, received by fax,
email or via the internet) where the stockholder has provided voting instructions with respect to the proposals described in this Proxy
Statement will be voted in accordance with the voting instructions so made. If your proxy card is properly executed and returned but
does not contain voting instructions as to one or more of the proposals to be voted upon at the Annual Meeting, or if you give your proxy
by fax or via the internet without indicating how you want to vote on each of the proposals to be voted upon at the Annual Meeting, your
shares will be voted “FOR” the election of each of the director nominees and “FOR” each other proposal.
If
your shares are held through a bank, broker or other nominee, and you do not properly instruct your bank, broker or other nominee how
to vote your shares, your bank, broker or other nominee will not have discretion to direct the voting of your shares at the Annual Meeting
and the votes represented by your shares will constitute broker non-votes. Banks, brokers and other nominees who hold shares of common
stock for beneficial owners have the discretion to vote on routine matters when they have not received voting instructions from those
beneficial owners at least ten days prior to the applicable meeting. On a non-routine matter, banks, brokers and other nominees do not
have the discretion to direct the voting of the beneficial owners’ shares (as they do on a routine matter), and, if the beneficial
owner has not provided voting instructions with respect to that matter, there will be a “broker non-vote” on the matter.
Broker non-votes will be counted for purposes of calculating whether a quorum is present at the Annual Meeting, will be entirely excluded
from the vote and will have no effect on the election of directors and will not be counted for purposes of determining the number of
votes present in person or represented by proxy with respect to any of the other proposals. The Company urges you to provide instructions
to your bank, broker or other nominee so that your votes may be counted for each proposal to be voted upon. You should provide voting
instructions for your shares by following the instructions provided on the vote instruction form that you receive from your bank, broker
or other nominee.
How
can I access the proxy materials electronically?
Copies
of the Notice of Annual Meeting, Proxy Statement and Annual Report on Form 10-K for the year ended December 31, 2020, as well
as other materials filed by the Company with the SEC, are available without charge to stockholders on the Company’s corporate
website at www.imacregeneration.com or upon written request to the Company at IMAC Holdings, Inc., 1605 Westgate Circle,
Brentwood, Tennessee 37027. You can elect to receive future annual reports, proxy statements and other proxy materials electronically
by marking the appropriate box on your proxy card or vote instruction form or by following the instructions provided if you submit
a proxy by fax or via the internet.
What
are the costs of soliciting these proxies and who will pay?
We
will bear the costs of mailing the Proxy Statement and solicitation of proxies by Equity Stock Transfer, which we estimate to be approximately
$6,000. In addition to solicitations by mail, our directors, officers and regular employees may solicit proxies by telephone, email and
personal communication. No additional remuneration will be paid to any director, officer or employee of the Company for such solicitation.
We will request brokers, custodians and fiduciaries to forward proxy soliciting material to the owners of shares of our common stock
that they hold in their names. To the extent necessary in order to assure sufficient representation, our officers and regular employees
may request the return of proxies personally, by telephone or email. The extent to which this will be necessary depends entirely upon
how promptly proxies are received, and stockholders are urged to send in their proxies without delay.
Who
can help answer my questions?
If
you have any additional questions about the Annual Meeting, the election of directors, any other proposal, how to submit your proxy,
or if you need additional copies of this Proxy Statement or the proxy card or voting instructions, you should contact the Company or
Equity Stock Transfer:
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IMAC
Holdings, Inc., 1605 Westgate Circle, Brentwood, Tennessee 37027, or by phone at (844) 266-4622.
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Equity
Stock Transfer by phone at (212) 575-5757.
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HOUSEHOLDING
OF ANNUAL MEETING MATERIALS
Some
banks, brokers and other nominee record holders may be participating in the practice of “householding” proxy statements and
annual reports. This means that only one copy of our Proxy Statement and annual report may have been sent to multiple stockholders in
your household unless we have received contrary instructions from one or more stockholders. We will promptly deliver a separate copy
of either document to you if you contact us at the following address or telephone number: IMAC Holdings, Inc., 1605 Westgate Circle,
Brentwood, Tennessee 37027, tel.: (844) 266-4622. If you want to receive separate copies of the Proxy Statement or annual report in the
future, or if you are receiving multiple copies and would like to receive only one copy per household, you should contact your bank,
broker or other nominee record holder, or you may contact us at the above address.
PROPOSAL
1:
ELECTION
OF DIRECTORS
Our
certificate of incorporation provides that the number of directors is fixed by resolution of the Board of Directors. The Board of Directors
now consists of five directors, as set forth below, each of whom has consented to be nominated and to serve if elected. All of the director
nominees served on the Board of Directors for all or a portion of this prior year and are standing for reelection.
|
Name
|
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Age
|
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Principal Occupation
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Director Since
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Jeffrey S. Ervin
|
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43
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Chief Executive Officer of IMAC
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2018
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Matthew C. Wallis, DC
|
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47
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Chief Operating Officer of IMAC
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2018
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|
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Maurice E. Evans(1)(2)(3)
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41
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Principal of ELOS Sports and Entertainment, LLC
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2020
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|
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Michael D. Pruitt(1)(2)
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60
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Chairman and CEO of Amergent Hospitality Group, Inc.
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2020
|
|
|
|
|
|
|
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Cary W. Sucoff(1)(3)
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68
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Manager of Equity Source Partners, LLC
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2020
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(1)
Member of the Audit Committee.
(2)
Member of the Compensation Committee.
(3)
Member of the Nominating and Governance Committee.
Unless
you indicate otherwise, shares represented by executed proxies will be voted “FOR” the election as directors of the persons
listed above. As of the date of this Proxy Statement, the Company has no reason to believe that any nominee will be unable to serve or
for good cause will not serve as a director. However, if for any reason a nominee becomes unable to serve or for good cause will not
serve if elected, the Nominating and Governance Committee may recommend, and the Board of Directors may propose, a substitute nominee(s)
at the annual meeting and the proxies identified in the proxy card will vote to approve the election of the substitute nominee(s). If
substitute nominees are proposed, we will, in full compliance with all applicable state and federal laws and regulations, file an amended
proxy statement and proxy card that, as applicable, (1) identifies the substitute nominee(s), (2) discloses that such nominees have consented
to being named in the revised proxy statement and to serve if elected and (3) includes the disclosure required by Item 7 of Schedule
14A with respect to such nominees.
Director
Qualifications
The
Board of Directors, acting through the Nominating and Governance Committee, is responsible for nominating a slate of director nominees
that collectively have the complementary experience, qualifications, and skills and attributes to guide the Company and function effectively
as a board. We believe that each of our nominees has the necessary professional experience to provide effective oversight of the Company’s
business. We also believe each of our nominees has other attributes necessary to create an effective board, such as high personal and
professional ethics, business and professional experience, integrity and values; practical wisdom and judgment; and a commitment to representing
the long-term interests of all our stockholders. In addition to these attributes, in each individual’s biography set forth below,
we have highlighted specific experience, qualifications, and skills that we believe qualify each individual to serve as a director of
IMAC.
Director
Biographies
The
following is a brief account of our directors’ business experience:
Jeffrey
S. Ervin co-founded our company in March 2015 and serves as our Chief Executive Officer and a member of our Board of Directors. Mr.
Ervin earned his M.B.A. from Vanderbilt University and has a history of working within strategic finance roles in the healthcare and
high tech industries. Following his M.B.A., Mr. Ervin was the Senior Financial Analyst and Vice President of Finance for the Baptist
Hospital System of Nashville from 2006 to September 2011, responsible for sourcing and managing direct investments to satisfy pension
obligations. After these five years, Mr. Ervin joined Medicare.com parent Medx Publishing in October 2011 as the senior financial officer
tasked with building administrative functions to satisfy rapid growth in the CMS education sector. During this time through March 2015,
Medicare.com earned INC. 500 recognition and he was instrumental in the acquisition of Medicaid.com, which was sold to United Healthcare
Group. Mr. Ervin was also responsible for the divestitute and ultimate sale of Medicare.com to eHealth Insurance.
As
our Chief Executive Officer and a director, Mr. Ervin leads the Board and manages our company. Mr. Ervin brings extensive healthcare
services industry knowledge and a deep background in growing early stage companies, mergers and acquisitions and capital market activities.
His service as the Chief Executive Officer and a director creates a critical link between management and our Board of Directors.
Matthew
C. Wallis, DC co-founded our company in March 2015 and serves as our Chief Operating Officer and a member of our Board of Directors.
Dr. Wallis established the first Integrated Medicine and Chiropractic (IMAC) Regeneration Center in August 2000 and has led the Paducah,
Kentucky center since then. Prior to establishing the first IMAC medical clinic, Dr. Wallis practiced as a licensed chiropractor in Kentucky.
As our Chief Operating Officer, Dr. Wallis, has implemented consistent operating efficiencies for our sales, marketing and service delivery
operations. Dr. Wallis received a Doctor of Chiropractic (DC) degree from Life University.
Dr.
Wallis’ more than 20 years of experience in the healthcare services industry, day-to-day operational leadership of our initial
Paducah, Kentucky medical clinic and in-depth knowledge of our company’s rehabilitative services make him well qualified as a member
of the Board.
Maurice
E. (Mo) Evans joined our Board of Directors in October 2020. Mr. Evans. is a business leader, advisor, consultant, investor and speaker
to businesses in the sports business vertical. He is the co-founder of ELOS Sports and Entertainment, LLC (“ELOS”), a provider
of brand management services to athletes and businesses in the sports and entertainment industry. Mr. Evans has served as the principal
of ELOS since 2014. Prior to that, from 2001 to 2012, he was a professional basketball player, including for the Washington Wizards,
Atlanta Hawks, Orlando Magic, Los Angeles Lakers, Detroit Pistons and Sacramento Kings. He also served as Executive Vice President of
the NBA Players Association from 2010 to 2013. Mr. Evans received a B.A. degree from the University of Texas at Austin.
Mr.
Evans provides more than a decade of experience in leading and managing customer-centric personal service organizations such as the NBA
Players Association and ELOS Sports and Entertainment, which is highly relevant to our business, making him well qualified as a member
of our Board. He also brings to our company a unique perspective on how an athlete addresses a sports injury.
Michael
D. Pruitt joined our Board of Directors in October 2020. He founded Avenel Financial Group, a boutique financial services firm concentrating
on emerging technology company investments in 1999. In 2001, he formed Avenel Ventures, a technology investment and private venture capital
firm. In February 2005, Mr. Pruitt formed Chanticleer Holdings, Inc., then a public holding company (now known as Sonnet BioTherapeutics
Holdings, Inc.), and he served as Chairman of the Board of Directors and Chief Executive Officer until April 1, 2020, at which time the
restaurant operations of Chanticleer Holdings were spun out into a new public entity, Amergent Hospitality Group, Inc., where Mr. Pruitt
has served as its Chairman and Chief Executive Officer to date. Mr. Pruitt also served as a director on the board of Hooters of America,
LLC from 2011 to 2019. Mr. Pruitt received a B.A. degree from Costal Carolina University. He currently sits on the Board of Visitors
of the E. Craig Wall Sr. College of Business Administration, the Coastal Education Foundation Board, and the Athletic Committee of the
Board of Trustees.
Mr.
Pruitt’s over 15 years of day-to-day operational leadership and service as a board member at public companies Chanticleer Holdings
and Amergent Hospitality Group make him well qualified as a member of the Board. He also brings transactional expertise in mergers and
acquisitions and capital markets.
Cary
W. Sucoff joined our Board of Directors in October 2020. Mr. Sucoff has more than 30 years of securities industry experience encompassing
supervisory, banking and sales responsibilities. He has participated in the financing of more than 100 public and private companies.
Since 2011, Mr. Sucoff has owned and operated Equity Source Partners LLC, an advisory and consulting firm. Mr. Sucoff currently serves
on the board of directors of ContraFect Corporation, Legacy Education Alliance Inc., First Wave Technologies, Inc. and Galimedix Pharmaceuticals
Inc. In addition, Mr. Sucoff currently serves as a consultant to Sapience Therapeutics. Mr. Sucoff is the past President of New England
Law | Boston, has been a member of its Board of Trustees for over 25 years and is the current Chairman of its Endowment Committee. Mr.
Sucoff received a B.A. degree from the State University of New York at Binghamton and a J.D. from New England School of Law, where he
was managing editor of the Law Review and graduated magna cum laude. He has been a member of the Bar of the State of New York since 1978.
Mr.
Sucoff demonstrates knowledge of our company’s business due to his many years of experience as an investor, consultant and board
member with a range of companies in the healthcare industry, making his input invaluable to the board’s discussion of our growth
and expansion strategy. He also brings experience in corporate controls and governance as a lawyer.
Board
Recommendation
The
Board of Directors unanimously recommends a vote on the proxy card “FOR” the election each of the directors listed
above.
PROPOSAL
2:
APPROVAL
OF AMENDMENT TO CERTIFICATE OF INCORPORATION TO INCREASE THE NUMBER OF AUTHORIZED SHARES OF COMMON STOCK TO 60,000,000 SHARES
The
Board of Directors has unanimously approved an amendment to the Company’s certificate of incorporation which would increase the
total authorized number of shares of the Company’s common stock to 60,000,000 shares from 30,000,000 shares.
The
amendment to the certificate of incorporation will increase the authorized common stock by amending and restating Section 4.1 of Article
IV of the certificate of incorporation, so that, as amended, it will read as follows:
“The
aggregate number of shares of capital stock that the Corporation is authorized to issue is Sixty-Five Million (65,000,000), of
which Sixty Million (60,000,000) shares are common stock having a par value of $0.001 per share (the “Common Stock), and
Five Million (5,000,000) shares are preferred stock having a par value of $0.001 per share (the “Preferred Stock”).
The
certificate of amendment will only become effective if the Company’s stockholders holding a majority of the outstanding common
stock approve it.
As
of June 18, 2021, the authorized capital stock of the Company included 30,000,000 shares of common stock and 5,000,000 shares of preferred
stock. The number of shares of preferred stock will not be changed by the certificate of amendment. As of June 18, 2021:
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25,284,856
shares of common stock were issued and outstanding,
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437,500
shares of common stock were reserved for issuance upon exercise of outstanding stock options,
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●
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333,750
time-based restricted stock units were outstanding, and
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●
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1,700,000
shares of common stock were reserved for issuance upon exercise of outstanding warrants.
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Accordingly,
as of June 18, 2021, an aggregate of 27,756,106 shares of common stock, out of 30,000,000 shares authorized, were issued and outstanding
or reserved for issuance, leaving only 2,243,894 shares available for future issuance.
The
increase in the authorized shares of our common stock is intended to provide our Board of Directors with authority, without further action
of the stockholders, to issue the additional shares of common stock from time to time as the Board of Directors deems necessary. The
Board of Directors believes it is in the stockholders’ interest for the Company to have the ability to issue such additional shares
of common stock from time to time to provide flexibility in addressing the strategic and liquidity needs of the Company, including but
not limited to shelf registrations and acquisitions of businesses.
The
increase in the authorized number of shares of common stock may also deter unwanted takeovers, in that additional shares could be issued
(according to the parameters of applicable law) in one or more transactions that could make an unwanted change of control more difficult.
For example, additional shares could be issued by the Company so as to dilute the stock ownership or voting rights of persons seeking
to obtain control of the Company. Similarly, the issuance of additional shares to certain persons allied with management could have the
effect of making it more difficult to remove current management by diluting the stock ownership or voting rights of persons seeking to
cause such removal. The subsequent issuance of additional common stock could result in dilution of net income per share and book value
per share and the dilution of the voting rights of the common stock. The Board is not aware of any attempt, or contemplated attempt,
of a hostile takeover of the Company, and this proposal is not being presented with the intent that it be utilized as a type of anti-takeover
device. Although we are seeking stockholder approval for the increase in the number of our authorized shares of common stock, we have
no present intention to issue a material number of these shares in a financing transaction or business combination.
This
amendment, if approved, would become effective upon the filing of a certificate of amendment with the Secretary of State of the State
of Delaware, which the Company expects to accomplish as soon as practicable after the approval is obtained.
Board
Recommendation
The
Board of Directors unanimously recommends a vote on the proxy card “FOR” the amendment to the Company’s certificate
of incorporation to increase the number of authorized shares of common stock.
PROPOSAL
3:
RATIFICATION
OF APPOINTMENT OF DASZKAL BOLTON LLP AS AUDITORS FOR 2021
Our
Audit Committee charter provides that the Audit Committee shall appoint annually a firm of independent registered public accountants
to serve as auditors. The Audit Committee has appointed Daszkal Bolton LLP to act as auditors for our year ending December 31, 2021.
If
this proposal is not approved at the annual meeting, our Audit Committee will reconsider the selection of Daszkal Bolton LLP for the
ensuing year, but may determine that continued retention of Daszkal Bolton LLP is in our company’s and our stockholders’
best interests. Even if the appointment is ratified, the Audit Committee, in its discretion, may direct the appointment of a different
independent registered public accounting firm at any time during the year if it determines that such a change would be in our company’s
and our stockholders’ best interests.
We
expect representatives of Daszkal Bolton LLP to be present telephonically at the Annual Meeting. They will have the opportunity to make
a statement if they desire to do so and will also be available to respond to appropriate questions from stockholders.
Board
Recommendation
Our
Board of Directors unanimously recommends that our stockholders vote “FOR” ratification of the appointment of Daszkal
Bolton LLP as our independent registered public accounting firm for our year ending December 31, 2021 on the proxy card.
PROPOSAL
4:
ADVISORY,
NON-BINDING VOTE TO APPROVE THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS
Section
14A of the Exchange Act requires that we provide our stockholders with the opportunity to vote to approve, on a non-binding, advisory
basis, the compensation of our named executive officers as disclosed in this Proxy Statement in accordance with the compensation disclosure
rules of the SEC.
Our
compensation programs are designed to effectively align our executives’ interests with the interests of our stockholders by focusing
on long-term equity incentives that correlate with the growth of sustainable long-term value for our stockholders. Stockholders are urged
to read the section titled “Executive Compensation” in this Proxy Statement, which discusses how our executive compensation
policies and practices implement our compensation philosophy and contains tabular information and narrative discussion about the compensation
of our named executive officers. Our Compensation Committee believes that the objectives of our executive compensation program, as they
relate to our named executive officers, are appropriate for a company of our size and stage of development and that our compensation
policies and practices help meet those objectives. In addition, our Compensation Committee believes that our executive compensation program,
as it relates to our named executive officers, achieves an appropriate balance between fixed compensation and variable incentive compensation.
Our Board of Directors and our Compensation Committee believe that our policies and practices are effective in implementing our compensation
philosophy and in achieving our compensation program goal. Accordingly, we are asking our stockholders to approve the compensation of
our named executive officers.
The
vote on this resolution is not intended to address any specific element of compensation; rather, the vote relates to the compensation
of our named executive officers, as described in this Proxy Statement in accordance with the compensation disclosure rules of the SEC.
Based
on the above, we request that stockholders indicate their support, on a non-binding advisory basis, for the compensation of our named
executive officers as described in this Proxy Statement by voting “FOR” the following resolution:
“RESOLVED,
that the stockholders of IMAC Holdings, Inc. approve, on an advisory basis, the compensation paid to IMAC Holdings, Inc.’s named
executive officers, as disclosed pursuant to the compensation disclosure rules of the Securities and Exchange Commission, including the
Executive Compensation section, the compensation tables and the narrative discussion in IMAC Holdings, Inc.’s 2021 proxy statement.”
As
an advisory vote, this proposal 4 is non-binding. Although the vote is non-binding, our Board of Directors and our Compensation Committee
value the opinions of our stockholders and will consider the outcome of the vote when making future compensation decisions for our named
executive officers.
Board
Recommendation
The
Board of Directors unanimously recommends a vote “FOR” the approval, on a non-binding advisory basis, of the compensation
of our named executive officers as disclosed in this Proxy Statement.
PROPOSAL
5:
ADVISORY,
NON-BINDING VOTE ON THE FREQUENCY OF FUTURE ADVISORY, NON-BINDING VOTES TO APPROVE THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS
Section
14A of the Exchange Act provides that stockholders must be given the opportunity to vote, on a non-binding advisory basis, for their
preference as to how frequently we should seek future non-binding advisory votes to approve the compensation of our named executive officers,
as disclosed in accordance with the compensation disclosure rules of the SEC, which we refer to as an advisory vote to approve the compensation
of our named executive officers.
By
voting with respect to this proposal, stockholders may indicate whether they would prefer that we conduct future non-binding advisory
votes to approve the compensation of our named executive officers every one, two or three years. Stockholders also may, if they wish,
abstain from casting a vote on this proposal. Our Board of Directors has determined that an annual advisory vote to approve the compensation
of our named executive officers will enable our stockholders to provide the Company with input regarding the compensation of our named
executive officers on a timely basis. Following the last annual meeting of stockholders at which the Board recommended a frequency vote
every year, the Board determined to again recommend such vote every year.
Stockholders
will not be voting to approve or disapprove of the recommendation of our Board of Directors. The proxy card provides stockholders with
the opportunity to choose among four options with respect to this proposal (holding the vote every one, two or three years, or abstaining).
The option that receives the highest number of votes from the voting power of shares of our common stock present in person or by proxy
at the Annual Meeting and entitled to vote thereon will be deemed to be the frequency preferred by our stockholders. Abstentions and
broker non-votes will have no effect on this proposal.
As
an advisory vote, this proposal will not be binding on the Company, our Board of Directors or our Compensation Committee in any way.
As such, the results of the vote will not be construed to create or imply any change to the fiduciary duties of our Board of Directors.
Our Board of Directors may decide that it is in the best interests of our stockholders and the Company to hold a non-binding advisory
vote on our named executive officer compensation more or less frequently than the option approved by our stockholders. Notwithstanding
the non-binding advisory nature of this vote, the Company recognizes that the stockholders may have different views as to the best approach
for the Company and looks forward to hearing from stockholders as to their preferences on the frequency of a non-binding advisory vote
on executive compensation.
Vote
Required and Board Recommendation
The
frequency of one year, two years or three years that receives the affirmative vote of a majority of votes cast will be deemed to be the
recommended frequency, on an advisory, non-binding basis, of future advisory votes on the compensation of our named executive officers.
You may vote for a frequency of future stockholder votes on executive compensation of every “ONE YEAR,” “TWO YEARS,”
or “THREE YEARS” or “ABSTAIN.” If no frequency receives the majority of the foregoing vote, then we will consider
the option of one year, two years or three years that received the highest number of votes cast to be the frequency recommended by stockholders.
Abstentions and broker non-votes will not affect the outcome of this proposal, other than counting towards the quorum of the Annual Meeting.
The
Board of Directors unanimously recommends a vote for the option of one year as the preferred frequency for future advisory, non-binding
votes to approve the compensation of the company’s named executive officers.
CORPORATE
GOVERNANCE
Board
Leadership
Jeffrey
S. Ervin serves as Chairman of the Board and Chief Executive Officer. As Chairman, Mr. Ervin leads the Board of Directors in its
discussions. As Chief Executive Officer, Mr. Ervin is responsible for implementing the Company’s strategic and operating
objectives and day-to-day decision-making related to such implementation.
The
Board of Directors currently has three standing committees (audit, compensation, and nominating and governance) that are chaired and
composed entirely of directors who are independent under Nasdaq and SEC rules. Given the role and scope of authority of these committees,
and that a majority of the Board of Directors is composed of independent directors, the Board of Directors believes that its leadership
structure is appropriate. We select directors as members of these committees with the expectation that they will be free of relationships
that might interfere with the exercise of independent judgement.
Our
Board of Directors is our Company’s ultimate decision-making body, except with respect to those matters reserved to the stockholders.
Our Board of Directors selects our senior management team, which is charged with the conduct of our business. Our Board of Directors
acts as an advisor and counselor to senior management and oversees its performance.
Board
Composition
Our
business and affairs are managed under the direction of our Board of Directors. The number of directors is determined by our board of
directors, subject to the terms of our certificate of incorporation and bylaws. Our board of directors currently consists of five members,
three of whom are independent directors.
Director
Independence
Our
common stock and warrants are listed for trading on The Nasdaq Capital Market. Under Rule 5605(a)(2) of the Nasdaq listing rules, independent
directors must comprise a majority of a listed company’s board of directors. In addition, Nasdaq rules require that, subject to
specified exceptions, each member of a listed company’s audit, compensation and nominating and governance committees must be independent.
Under Nasdaq rules, a director will only qualify as an “independent director” if, in the opinion of that company’s
board of directors, that person does not have a relationship that would interfere with the exercise of independent judgment in carrying
out the responsibilities of a director.
Audit
committee members must also satisfy the independence criteria set forth in Rule 10A-3 under 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: (i) accept, directly or indirectly, any consulting,
advisory, or other compensatory fee from the listed company or any of its subsidiaries; or (ii) be an affiliated person of the listed
company or any of its subsidiaries.
Our
Board of Directors undertook a review of its composition, the composition of 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 of Directors has determined that Messrs. Evans, Pruitt and Sucoff, representing a majority of our directors,
do not have any relationships that would interfere with the exercise of independent judgment in carrying out the responsibilities of
a director and that each of these directors is “independent” as that term is defined under Nasdaq rules. In making these
determinations, our Board of Directors considered the relationships that each non-employee director has with the Company, all transactions
in which the Company and any non-employee director had any interest, and all other facts and circumstances our Board of Directors deemed
relevant in determining their independence, including the beneficial ownership of our capital stock by each non-employee director.
The
independent directors meet as often as necessary to fulfill their responsibilities, including meeting at least twice annually in executive
session without the presence of non-independent directors and management.
Code
of Ethics
We
have adopted a Code of Business Ethics and Conduct (“Ethics Code”) that applies to all our officers, directors, employees,
and contractors. The Ethics Code contains general guidelines for conducting our business consistent with the highest standards of business
ethics and compliance with applicable law and is intended to qualify as a “code of ethics” within the meaning of Section
406 of the Sarbanes-Oxley Act of 2002 and Item 406 of Regulation S-K. Day-to-day compliance with the Ethics Code is overseen by the Company
compliance officer appointed by our Board of Directors. If we make any substantive amendments to the Ethics Code or grant any waiver
from a provision of the Ethics Code to any director or executive officer, we will promptly disclose the nature of the amendment or waiver
on our website at https://ir.imacregeneration.com.
Board
of Directors Meetings
There
were nine meetings of the Board of Directors in 2020. There have been three meetings of the Board of Directors so far during 2021. All
directors attended all meetings of the Board of Directors either in-person or telephonically.
Board
Committees
Our
Board of Directors has three standing committees: an audit committee, a compensation committee and a nominating and governance committee.
Under Nasdaq rules, the membership of the audit committee is required to consist entirely of independent directors. The following is
a brief description of our committees.
Audit
committee. In accordance with our audit committee charter, our audit committee oversees our corporate accounting and financial
reporting processes and our internal controls over financial reporting; evaluates the independent public accounting firm’s qualifications,
independence and performance; engages and provides for the compensation of the independent public accounting firm; approves the retention
of the independent public accounting firm to perform any proposed permissible non-audit services; reviews our consolidated financial
statements; reviews our critical accounting policies and estimates and internal controls over financial reporting; and discusses with
management and the independent registered public accounting firm the results of the annual audit and the reviews of our quarterly consolidated
financial statements. We believe that our audit committee members meet the requirements for financial literacy under the current requirements
of the Sarbanes-Oxley Act, Nasdaq and SEC rules and regulations. In addition, the Board of Directors has determined that Michael D. Pruitt
is qualified as an audit committee financial expert within the meaning of SEC regulations. We have made this determination based on information
received by our Board of Directors, including questionnaires provided by the members of our audit committee. The audit committee is composed
of Messrs. Pruitt (Chairman), Evans and Sucoff.
Compensation
committee. In accordance with our compensation committee charter, our compensation committee reviews and recommends policies
relating to compensation and benefits of our officers and employees, including reviewing and approving corporate goals and objectives
relevant to compensation of the Chief Executive Officer and other senior officers, evaluating the performance of these officers in light
of those goals and objectives and setting compensation of these officers based on such evaluations. The compensation committee also administers
the issuance of stock options and other awards under our equity-based incentive plans. We believe that the composition of our compensation
committee meets the requirements for independence under, and the functioning of our compensation committee complies with, any applicable
requirements of the Sarbanes-Oxley Act, Nasdaq and SEC rules and regulations. We intend to comply with future requirements to the extent
they become applicable to us. The compensation committee is composed of Messrs. Evans (Chairman) and Pruitt.
Nominating
and governance committee. In accordance with our nominating and governance committee charter, our nominating and governance committee
recommends to the Board of Directors nominees for election as directors, and meets as necessary to review director candidates and nominees
for election as directors; recommends members for each committee of the Board of Directors; oversee corporate governance standards and
compliance with applicable listing and regulatory requirements; develops and recommends to the Board of Directors governance principles
applicable to the Company; and oversee the evaluation of the Board of Directors and its committees. We believe that the composition of
our nominating and governance committee meets the requirements for independence under, and the functioning of our compensation committee
complies with, any applicable requirements of the Sarbanes-Oxley Act, Nasdaq and SEC rules and regulations. We intend to comply with
future requirements to the extent they become applicable to us. The nominating and governance committee is composed of Messrs. Sucoff
(Chairman) and Evans.
Compensation
Committee Interlocks and Insider Participation
None
of the members of our compensation committee is an executive officer or employee of our company. None of our executive officers serves
as a member of the board of directors or compensation committee of any entity that has one or more executive officers serving on our
Board of Directors or compensation committee.
Limitations
on Director and Officer Liability and Indemnification
Our
certificate of incorporation limits the liability of our directors to the maximum extent permitted by Delaware law. Delaware law provides
that directors of a corporation will not be personally liable for monetary damages for breach of their fiduciary duties as directors,
except liability for:
|
|
●
|
any
breach of their duty of loyalty to the corporation or its stockholders;
|
|
|
|
|
|
|
●
|
acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;
|
|
|
|
|
|
|
●
|
unlawful
payments of dividends or unlawful stock repurchases or redemptions; or
|
|
|
|
|
|
|
●
|
any
transaction from which the director derived an improper personal benefit.
|
Our
certificate of incorporation and our bylaws provide that we are required to indemnify our directors and officers, in each case to the
fullest extent permitted by Delaware law. Any repeal of or modification to our certificate of incorporation and our bylaws may not adversely
affect any right or protection of a director or officer for or with respect to any acts or omissions of such director or officer occurring
prior to such amendment or repeal. Our bylaws will also provide that we shall advance expenses incurred by a director or officer in advance
of the final disposition of any action or proceeding and permit us to secure insurance on behalf of any officer, director, employee or
other agent for any liability arising out of his or her actions in connection with their services to us, regardless of whether our bylaws
permit such indemnification.
We
have entered into separate indemnification agreements with our directors and executive officers, in addition to the indemnification provided
for in our bylaws. These agreements, among other things, provide that we will indemnify our directors and executive officers for certain
expenses (including attorneys’ fees), judgments, fines, penalties and settlement amounts incurred by a director or executive officer
in any action or proceeding arising out of such person’s services as one of our directors or executive officers, or any other company
or enterprise to which the person provides services at our request. We believe that these provisions and agreements are necessary to
attract and retain qualified persons as directors and executive officers.
The
limitation of liability and indemnification provisions that are contained in our certificate of incorporation and our bylaws may discourage
stockholders from bringing a lawsuit against our directors for breach of their fiduciary duty. They may also reduce the likelihood of
derivative litigation against our directors and officers, even though an action, if successful, might benefit us and other stockholders.
Further, a stockholder’s investment may be adversely affected to the extent that we pay the costs of settlement and damage awards
against directors and officers as required by these indemnification provisions. There is no pending litigation or proceeding involving
one of our directors or executive officers as to which indemnification is required or permitted, and we are not aware of any threatened
litigation or proceeding that may result in a claim for indemnification.
Board
of Directors’ Role in Risk Oversight
Our
Board of Directors, as a whole and also at the committee level, has an active role in managing enterprise risk. The members of our Board
of Directors participate in our risk oversight assessment by receiving regular reports from members of senior management and the Company
compliance officer appointed by our Board of Directors on areas of material risk to us, including operational, financial, legal and regulatory,
and strategic and reputational risks. The compensation committee is responsible for overseeing the management of risks relating to our
executive compensation plans and arrangements. The audit committee oversees management of financial risks, as well as our policies with
respect to risk assessment and risk management. The nominating and governance committee manages risks associated with the independence
of our Board of Directors and potential conflicts of interest. Members of the management team report directly to our Board of Directors
or the appropriate committee. The directors then use this information to understand, identify, manage, and mitigate risk. Once a committee
has considered the reports from management, the chairperson will report on the matter to our full Board of Directors at the next meeting
of the Board of Directors, or sooner if deemed necessary. This enables our Board of Directors and its committees to effectively carry
out its risk oversight role.
Communications
with our Board of Directors
Any
stockholder may send correspondence to our Board of Directors, c/o IMAC Holdings, Inc., 1605 Westgate Circle, Brentwood, Tennessee 37027
and our telephone number is (844) 266-IMAC (4622). Our management will review all correspondence addressed to our Board of Directors,
or any individual director, and forward all such communications to our Board of Directors or the appropriate director prior to the next
regularly scheduled meeting of our Board of Directors following the receipt of the communication, unless the Corporate Secretary decides
the communication is more suitably directed to Company management and forwards the communication to Company management. Our management
will summarize all stockholder correspondence directed to our Board of Directors that is not forwarded to our Board of Directors and
will make such correspondence available to our Board of Directors for its review at the request of any member of our Board of Directors.
Indebtedness
of Directors and Executive Officers
None
of our directors or executive officers or their respective associates or affiliates is currently indebted to us.
Compliance
with Section 16(a) of the Exchange Act
Section
16(a) of the Exchange Act requires our executive officers, directors and holders of more than 10% of our equity securities to file reports
of ownership and changes in ownership of our securities (Forms 3, 4 and 5) with the SEC. To the best of our knowledge, based solely on
a review of the Section 16(a) reports and written statements from executive officers and directors, for the year ended December 31, 2020,
all required reports of executive officers, directors and holders of more than 10% of our equity securities were filed on time, except
for any such reports which may have been filed late due to administrative delays.
Family
Relationships
There
are no family relationships among our directors and executive officers.
Director
Attendance at Annual Meetings
Our
Board of Directors encourages director attendance at our annual meetings of stockholders.
Policies
and Procedures for Transactions with Related Persons
Our
Board of Directors has adopted a written related person transaction policy setting forth the policies and procedures for the review and
approval or ratification of related person transactions. Related persons include any executive officer, director or a holder of more
than 5% of our common stock, including any of their immediate family members and any entity owned or controlled by such persons. Related
person transactions refers to any transaction, arrangement or relationship, or any series of similar transactions, arrangements or relationships
in which (i) we were or are to be a participant, (ii) the amount involved exceeds $120,000, and (iii) a related person had or will have
a direct or indirect material interest. Related person transactions include, 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 each case subject to certain exceptions set forth in Item 404 of Regulation S-K under the Securities
Act.
The
policy provides that in any related person transaction, our audit committee and Board of Directors will consider all of the available
material facts and circumstances of the transaction, including: the direct and indirect interests of the related persons; in the event
the related person is a director (or immediate family member of a director or an entity with which a director is affiliated), the impact
that the transaction will have on a director’s independence; the risks, costs and benefits of the transaction to us; and whether
any alternative transactions or sources for comparable services or products are available. After considering all such facts and circumstances,
our audit committee and Board of Directors will determine whether approval or ratification of the related person transaction is in our
best interests. For example, if our audit committee determines that the proposed terms of a related person transaction are reasonable
and at least as favorable as could have been obtained from unrelated third parties, it will recommend to our Board of Directors that
such transaction be approved or ratified. In addition, if a related person transaction will compromise the independence of one of our
directors, our audit committee may recommend that our Board of Directors reject the transaction if it could affect our ability to comply
with securities laws and regulations or Nasdaq listing requirements.
Related
Party Transactions
On
June 1, 2018, we entered into a note payable to the Edward S. Bredniak Revocable Trust, the trustee of which is Edward S. Bredniak, a
former director of our company, in the amount of up to $2,000,000. An existing note payable with this entity with an outstanding balance
of $379,675.60 was combined into the new note payable. The note carries an interest rate of 10% per annum and all outstanding balances
are due and payable 13 months after the closing of this offering. On June 28, 2019, we entered into an amendment to this note (the “Amendment”).
Among other things, the Amendment provided for the extension of the maturity of the note to January 5, 2021, reduced the principal amount
of the note from $2,000,000 to $1,750,000, corrected the name of the lender under the note from The Edward S. Bredniak Revocable Trust
u/a dated 8/14/2015 to Edward S. Bredniak, and provided for the payment of any outstanding amounts under the note which exceed $1,750,000
as of the date of the Amendment. The proceeds of this note are being used to satisfy ongoing working capital needs, expenses related
to the preparation for our initial public offering, equipment and construction costs related to new clinic locations, and potential business
combination and transaction expenses. In November 2020, we entered into an amendment to this note that provided for the extension of
the maturity date of the note to January 5, 2022. In March 2021, we repaid this note in full.
On
March 4, 2020, the Company entered into a series of 10% Promissory Notes with two former independent directors of the Company, George
P. Hampton and Gerard M. Hayden, Jr., as well as Jeffrey S. Ervin, our Chief Executive Officer and director, and Matthew C. Wallis, DC,
our Chief Operating Officer and director, pursuant to which the Company borrowed a total of $200,000 from these individuals to be used
by the Company to fund its working capital requirements. The borrowings under the notes are unsecured and bear interest at a rate of
10% per annum, with interest deferred through and payable on the maturity date. The principal and interest under the notes were paid
in full on March 25, 2020.
AUDIT
FEES
In
2018, the Board selected Daszkal Bolton LLP as its independent accountant to audit the registrant’s financial statements. Since
they were retained, there have been (1) no disagreements between us and Daszkal Bolton LLP on any matters of accounting principle or
practices, financial statement disclosure, or auditing scope or procedures and (2) no reportable events within the meaning set forth
in Item 304(a)(1)(v) of Regulation S-K. Daszkal Bolton LLP has not issued any reports on our financial statements during the previous
two years that contained any adverse opinion or a disclaimer of opinion or were qualified or modified as to uncertainty, audit scope
or accounting principle. In connection with the audit of the 2020 and 2019 financial statements, we entered into an engagement agreement
with Daszkal Bolton LLP which sets forth the terms by which Daszkal Bolton LLP has performed audit and related professional services
for us. A representative from Daszkal Bolton LLP is expected to be present telephonically at the Annual Meeting, will be able to make
a statement if desired and will be available to respond to questions.
The
following table sets forth the aggregate accounting fees paid by us for the year ended December 31, 2020 and the year ended December
31, 2019. The below fees were paid to the firm Daszkal Bolton LLP. All non-audit related services in the table were pre-approved and/or
ratified by the Board of Directors prior to our initial public offering or the audit committee of our Board of Directors following our
initial public offering.
|
|
|
Year ended
|
|
|
Year ended
|
|
|
Type of Fees
|
|
December 31, 2020
|
|
|
December 31, 2019
|
|
|
Audit fees
|
|
$
|
149,000
|
|
|
$
|
133,590
|
|
|
Audit related fees
|
|
|
27,750
|
|
|
|
23,500
|
|
|
Tax fees
|
|
|
8,000
|
|
|
|
20,000
|
|
|
Total
|
|
$
|
192,750
|
|
|
$
|
177,090
|
|
Types
of Fees Explanation
Audit
Fees. Audit fees were incurred for accounting services rendered for the audit of our consolidated financial statements for the
years ended December 31, 2020 and 2019 and reviews of quarterly consolidated financial statements.
Audit
Related Fees. We incurred fees in connection with accounting reviews for Form-3 Comfort Letters to Underwriters.
Audit
Committee Pre-Approval of Services by Independent Registered Public Accounting Firm
Section
10A(i)(1) of the Exchange Act and related SEC rules require that all auditing and permissible non-audit services to be performed by our
principal accountants be approved in advance by the audit committee of the Board of Directors. Pursuant to Section 10A(i)(3) of the Exchange
Act and related SEC rules, the audit committee has established procedures by which the Chairman of the audit committee may pre-approve
such services provided that the pre-approval is detailed as to the particular service or category of services to be rendered and the
Chairman reports the details of the services to the full audit committee at its next regularly scheduled meeting.
The
audit committee has considered the services provided by Daszkal Bolton LLP as disclosed above in the captions “audit fees”
and “tax fees” and has concluded that such services are compatible with the independence of Daszkal Bolton LLP as our principal
accountant.
Our
Board of Directors has considered the nature and amount of fees billed by our independent auditors and believes that the provision of
services for activities unrelated to the audit is compatible with maintaining our independent auditors’ independence.
AUDIT
COMMITTEE REPORT
As
of the end of 2020, the Audit Committee consisted of three members of the Board of Directors of IMAC Holdings, Inc., each of whom was
independent of the Company and its management, as defined in the NASDAQ Listing Rules. The Board of Directors has adopted, and periodically
reviews, the audit committee charter. The charter specifies the scope of the audit committee’s responsibilities and how it carries
out those responsibilities.
The
audit committee reviews management’s procedures for the design, implementation, and maintenance of a comprehensive system of internal
controls over financial reporting and disclosure controls and procedures focused on the accuracy of our financial statements and the
integrity of our financial reporting systems. The audit committee provides the Board of Directors with the results of its examinations
and recommendations and reports to the Board of Directors as it may deem necessary to make the Board of Directors aware of significant
financial matters requiring the attention of the Board of Directors.
The
audit committee does not conduct auditing reviews or procedures. The audit committee monitors management’s activities and discusses
with management the appropriateness and sufficiency of our financial statements and system of internal control over financial reporting.
Management has primary responsibility for the Company’s financial statements, the overall reporting process and our system of internal
control over financial reporting. Our independent registered public accounting firm audits the financial statements prepared by management,
expresses an opinion as to whether those financial statements fairly present our financial position, results of operations and cash flows
in conformity with accounting principles generally accepted in the United States and discusses with the audit committee any issues they
believe should be raised with us.
The
audit committee reviews reports from our independent registered public accounting firm with respect to their annual audit and approves
in advance all audit and non-audit services provided by our independent auditors in accordance with applicable regulatory requirements.
The audit committee also considers, in advance of the provision of any non-audit services by our independent registered public accounting
firm, whether the provision of such services is compatible with maintaining their independence.
In
accordance with its responsibilities, the audit committee has reviewed and discussed with management the audited financial statements
for the year ended December 31, 2020 and the process designed to achieve compliance with Section 404 of the Sarbanes-Oxley Act of 2002.
The audit committee has also discussed with our independent registered public accounting firm, Daszkal Bolton LLP (“DB”),
the matters required to be discussed by Auditing Standard No. 16, “Communications with audit committees” issued by the Public
Company Accounting Oversight Board (“PCAOB”). The audit committee has received the written disclosures and letter from DB
required by applicable requirements of the PCAOB regarding the communications of DB with the audit committee concerning independence,
and has discussed with DB its independence, including whether the provision by DB of non-audit services, as applicable, is compatible
with its independence.
Based
on these reviews and discussions, the audit committee recommended to the Board of Directors that the Company’s audited financial
statements for the year ended December 31, 2020 be included in Company’s Annual Report on Form 10-K for the year ended December
31, 2020.
|
|
Audit
Committee of the Board of Directors,
|
|
|
|
|
|
Michael
D. Pruitt, Chairman
|
|
|
Maurice
E. Evans
|
|
|
Cary
W. Sucoff
|
SECURITY
OWNERSHIP
The
following table sets forth information as of June 18, 2021 regarding the beneficial ownership of our common stock by (i) each person
we know to be the beneficial owner of 5% or more of our common stock, (ii) each of our current executive officers, (iii) each of our
directors, and (iv) all of our current executive officers and directors as a group. Information with respect to beneficial ownership
has been furnished by each director, executive officer or 5% or more stockholder, as the case may be. The address for all executive officers
and directors is c/o IMAC Holdings, Inc., 1605 Westgate Circle, Brentwood, Tennessee 37027.
Percentage
of beneficial ownership in the table below is calculated based on 25,284,856 shares of common stock outstanding as of June 18, 2021.
Beneficial ownership is determined in accordance with the rules of the SEC, which generally attribute beneficial ownership of securities
to persons who possess sole or shared voting power or investment power with respect to those securities and includes shares of our common
stock issuable pursuant to the exercise of stock options, warrants or other securities that are immediately exercisable or convertible
or exercisable or convertible within 60 days of June 18, 2021. Unless otherwise indicated, the persons or entities identified in this
table have sole voting and investment power with respect to all shares shown as beneficially owned by them.
|
Name of Beneficial Owner
|
|
Shares
Beneficially
Owned
|
|
|
Percentage
Beneficially
Owned
|
|
|
|
|
|
|
|
|
|
|
Jeffrey S. Ervin(1)
|
|
|
333,900
|
|
|
|
1.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Matthew C. Wallis, DC
|
|
|
1,751,694
|
|
|
|
7.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Sheri Gardzina(2)
|
|
|
18,950
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
Maurice E. Evans(1)(3)
|
|
|
167,122
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
Michael D. Pruitt(1)
|
|
|
26,250
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
Cary W. Sucoff(1)
|
|
|
25,000
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
|
|
Nantahala Capital Management, LLC(4)
|
|
|
2,500,000
|
|
|
|
9.9
|
%
|
|
|
|
|
|
|
|
|
|
|
|
Alpha Capital Anstalt(5)
|
|
|
2,300,000
|
|
|
|
9.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
All directors and executive officers as a group (6 persons)
|
|
|
2,322,916
|
|
|
|
9.2
|
%
|
|
*
|
Less
than 1% of outstanding shares.
|
|
|
|
|
(1)
|
Excludes
75,000 unvested time-based restricted stock units.
|
|
|
|
|
(2)
|
Includes
100 shares of common stock held by Ms. Gardzina’s spouse. Excludes 18,750 unvested time-based restricted stock units.
|
|
|
|
|
(3)
|
Includes
129,702 shares of common stock held of record by ELOS Sports and Entertainment, LLC (“ELOS”). Mr. Evans is the principal
of ELOS and has sole voting and power with respect to the shares held by ELOS.
|
|
|
|
|
(4)
|
As
reported in a Schedule 13G filed with the SEC on April 12, 2021.
|
|
|
|
|
(5)
|
As
reported in a Schedule 13G filed with the SEC on March 24, 2021.
|
MANAGEMENT
Officers
of the Company
Our
current executive officers are:
|
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
|
|
Jeffrey
S. Ervin
|
|
43
|
|
Chief
Executive Officer and Director
|
|
|
|
|
|
|
|
Matthew
C. Wallis, DC
|
|
47
|
|
Chief
Operating Officer and Director
|
|
|
|
|
|
|
|
Sheri
Gardzina, CPA
|
|
52
|
|
Chief
Financial Officer
|
See
“Proposal 1—Election of Directors” above for biographical information concerning Messrs. Ervin and Wallis.
Sheri
Gardzina, CPA joined our company in November 2017 and serves as our Chief Financial Officer. Prior to joining IMAC, Ms. Gardzina
served as the controller or member of the accounting executive team of Smile Direct Club, LLC, a marketer of invisible aligners, from
June 2016 to September 2017, Adoration Health, a home health and hospice company, from October 2015 to June 2016, Lattimore, Black, Morgan
& Cain, an accounting and consulting firm where she provided temporary chief financial officer services to Peak Health Solutions,
from August to September 2015, EB Employee Solutions, LLC, a healthcare self-insurance product developer, from May to December 2014,
and Inspiris Inc., a start-up care management company sold to Optum, from November 2003 to May 2014. Ms. Gardzina started her career
as an auditor with Ernst & Young, where she worked from October 1994 to August 1997. Ms. Gardzina earned a B.S. degree in business
administration and finance from Purdue University and an M.S. in accountancy and M.B.A. from Northeastern University.
EXECUTIVE
COMPENSATION
In
considering our executive compensation policies and practices, we seek to balance our interest in limiting operating expenses and minimizing
stockholder dilution with our interest in using compensation to attract, retain and motivate employees. In reconciling these competing
concerns, we strive to act in the long-term best interests of the Company and our stockholders. The elements of our executives’
total compensation are base salary, cash incentive awards, stock incentive awards, bonuses and other employee benefits.
The
Compensation Committee of our Board of Directors has considered whether our executive compensation program creates risks that are reasonably
likely to have a material adverse effect on the Company and has concluded that it does not. In reaching its conclusion, the Committee
considered the Company’s strategic goals and operational practices and evaluated the design of its compensation programs to assess
whether these programs foster a business environment that might drive inappropriate decision-making or behavior. The majority of our
management’s cash compensation typically consists primarily of base salary, which we believe mitigates inappropriate or excessive
risk-taking that could harm stockholder value. To the extent that executives receive equity incentive awards, historically such awards
have been long-term awards that were intended to align executives’ interests with those of our stockholders.
Summary
Compensation Table
The
following table sets forth summary compensation information for the following persons: (i) all persons serving as our principal
executive officer during the years ended December 31, 2020 and 2019, and (ii) our two other most highly compensated executive
officers who received compensation during the years ended December 31, 2020 and 2019 of at least $100,000 and who were executive
officers on December 31, 2020 and 2019. We refer to these persons as our “named executive officers” in this Proxy
Statement. The following table includes all compensation earned by the named executive officers for the respective period,
regardless of whether such amounts were actually paid during the period:
|
Name and Position
|
|
Years
|
|
|
Salary
|
|
|
Bonus
|
|
|
Stock Awards
|
|
|
Option Awards
|
|
|
Non-equity Incentive Plan Comp
|
|
|
Non-qualified Deferred Comp
|
|
|
All Other Comp.
|
|
|
Total
|
|
|
Jeffrey S. Ervin,
|
|
|
2020
|
|
|
$
|
253,291
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
253,291
|
|
|
Chief Executive Officer
|
|
|
2019
|
|
|
$
|
238,077
|
|
|
|
-
|
|
|
$
|
606,000
|
|
|
$
|
606,000
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
1,800
|
|
|
$
|
1,451,877
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Matthew C. Wallis, DC,
|
|
|
2020
|
|
|
$
|
254,177
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
254,177
|
|
|
Chief Operating Officer
|
|
|
2019
|
|
|
$
|
252,269
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
5,000
|
|
|
$
|
257,269
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sheri Gardzina,
|
|
|
2020
|
|
|
$
|
172,651
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
172,651
|
|
|
Chief Financial Officer
|
|
|
2019
|
|
|
$
|
160,538
|
|
|
|
-
|
|
|
$
|
151,500
|
|
|
$
|
151,500
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
1,500
|
|
|
$
|
465,038
|
|
Employment
Agreements
We
entered into employment agreements effective October 1, 2018 with Sheri Gardzina and March 1, 2019 with each of Jeffrey S. Ervin and
Matthew C. Wallis, DC. The employment agreements with each of Ms. Gardzina and Messrs. Ervin and Wallis extend for a term expiring on
February 28, 2023.
Pursuant
to their employment agreements, Messrs. Ervin and Wallis and Ms. Gardzina have agreed to devote substantially all of their business time,
attention and ability, to our business as our Chief Executive Officer, Chief Operating Officer and Chief Financial Officer, respectively.
The employment agreements provide that Messrs. Ervin and Wallis will receive a base salary during the first year of the agreement at
an annual rate of $240,000 and $240,000, respectively, for services rendered in such positions. Under the employment agreements for Messrs.
Ervin and Wallis, their annual base salaries are each increased to $254,000, $267,000 and $280,000 during the second, third and fourth
years of each agreement, respectively. Ms. Gardzina received a base salary at a rate of $150,000 per year through December 31, 2018,
$160,000 for the period of January 1, 2019 through September 30, 2019 and $170,000 for the period of October 1, 2019 through September
30, 2020. In addition, each executive may be entitled to receive, at the sole discretion of our Board of Directors, cash bonuses based
on the executive meeting and exceeding performance goals of the company. Each executive is entitled to participate in our 2018 Incentive
Compensation Plan. We have also agreed to pay or reimburse each executive up to $100 per month for the business use of each executive’s
personal cell phone. Effective April 5, 2021, Ms. Gardzina’s contract was extended to February 28, 2023 and the base salaries of
all three executives were modified through the duration of their agreements, with Mr. Ervin’s annual salary amended to $350,000,
Mr. Wallis’ annual salary amended to $300,000, and Ms. Gardzina’s annual salary amended to $250,000.
The
employment agreements also provide for termination by us upon death or disability of the executive (defined as three aggregate months
of incapacity during any 365-consecutive day period) or upon conviction of a felony crime of moral turpitude or a material breach of
their obligations to us. In the event any of the employment agreements are terminated by us without cause, such executive will be entitled
to compensation for the balance of the term.
In
the event of a change of control of our company, Messrs. Ervin and Wallis may terminate their employment within six months after such
event and will be entitled to continue to be paid pursuant to the terms of their respective employment agreements.
The
employment agreements also contain covenants (a) restricting the executive from engaging in any activities competitive with our business
during the terms of such employment agreements and one year thereafter, (b) prohibiting the executive from disclosure of confidential
information regarding us at any time and (c) confirming that all intellectual property developed by the executive and relating to our
business constitutes our sole and exclusive property.
Grants
of Plan-Based Awards
As
of December 31, 2020, the Company had outstanding stock options to purchase 360,169 shares of its common stock which were granted during
the second and third quarter of 2019 as non-qualified stock options to various employees of the Company. These options vest over a period
of four years, with 25% vesting in May 2020 and the remaining 75% vesting in equal monthly installments over the following 36 months,
are exercisable for a period of ten years, and enable the holders to purchase shares of the Company’s common stock at the exercise
price of the respective award. The per-share fair values of these options are $1.87, based on Black-Scholes-Merton pricing model with
the following assumptions: a volatility rate of 32.2%, risk free rate of 2.4% and the expected term of ten years.
On
May 21, 2019, the Company granted an aggregate of 277,500 restricted stock units to certain employees, executives and members of the
Board of Directors, the terms of which vest over various periods between the date of grant and four years following the date of grant.
On August 13, 2019, 30,000 shares of common stock were issued pursuant to granted restricted stock units which had vested as of such
date. On June 30, 2020, 56,875 shares of common stock were issued pursuant to granted restricted stock units which had vested.
On
May 21, 2020, the Company granted 10,000 restricted stock units to former Board member Gerard M. Hayden, Jr., which vested immediately.
On
October 31, 2020, the Company granted an aggregate of 300,000 restricted stock units to Board members, which vest in eight equal quarterly
installments commencing on December 31, 2020 provided the Board member remains a director of the Company.
Outstanding
Equity Awards at December 31, 2020
No
stock options or other equity awards were granted to any of our named executed officers during the year ended December 31, 2020. Mr.
Ervin and Ms. Gardzina were awarded 150,000 and 37,500 restricted stock units and 150,000 and 37,500 stock options, respectively, during
the year ended December 31, 2019.
The
following table presents the outstanding equity awards held by each of the named executive officers as of the year ended December 31,
2020, including the value of the stock awards.
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
Name
|
|
Grant Date
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable
|
|
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable
|
|
|
Option
Exercise
Price
($)
|
|
|
Option
Expiration
Date
|
|
Number of
Shares or Units
of Stock That
Have Not Vested
(#)
|
|
|
Market Value of Shares or Units
That Have Not
Vested
($)
|
|
|
Jeffrey Ervin
|
|
5/21/2019
|
|
|
59,375
|
|
|
|
90,625
|
(1)
|
|
$
|
4.04
|
|
|
5/21/2029
|
|
|
112,500
|
(1)
|
|
$
|
172,125
|
|
|
Sheri Gardzina
|
|
5/21/2019
|
|
|
14,844
|
|
|
|
22,656
|
(1)
|
|
$
|
4.04
|
|
|
5/21/2029
|
|
|
28,125
|
(1)
|
|
$
|
43,031
|
|
|
|
(1)
|
Four-year
vesting with four equal annual installments
|
2018
Incentive Compensation Plan
Under
our 2018 Incentive Compensation Plan (the “Plan”), adopted by our Board of Directors and holders of a majority of our outstanding
shares of common stock in May 2018, 1,000,000 shares of common stock (subject to certain adjustments) are reserved for issuance upon
exercise of stock options and grants of other equity awards. The Plan is designed to serve as an incentive for attracting and retaining
qualified and motivated employees, officers, directors, consultants and other persons who provide services to us. The compensation committee
of our Board of Directors administers and interprets the Plan and is authorized to grant stock options and other equity awards thereunder
to all eligible employees of our company, including non-employee consultants to our company and directors.
The
Plan provides for the granting of “incentive stock options” (as defined in Section 422 of the Code), non-statutory stock
options, stock appreciation rights, shares of restricted stock, restricted stock units, deferred stock, dividend equivalents, bonus stock
and awards in lieu of cash compensation, other stock-based awards and performance awards. Options may be granted under the Plan on such
terms and at such prices as determined by the compensation committee of the Board of Directors, except that the per share exercise price
of the stock options cannot be less than the fair market value of our common stock on the date of grant. Each option will be exercisable
after the period or periods specified in the stock option agreement, but all stock options must be exercised within ten years from the
date of grant. Options granted under the Plan are not transferable other than by will or by the laws of descent and distribution. The
compensation committee of the Board of Directors has the authority to amend or terminate the Plan, provided that no amendment shall be
made without stockholder approval if such stockholder approval is necessary to comply with any tax or regulatory requirement. Unless
terminated sooner, the Plan will terminate ten years from its effective date.
Equity
Compensation Plan Summary
The
following table provides information as of December 31, 2020 relating to our equity compensation plan:
|
Plan Category
|
|
Number of Securities to
be Issued Upon Exercise
of Outstanding Equity Grants
|
|
|
Weighted-Average
Exercise Price of
Outstanding Options
|
|
|
Number of Securities
Remaining
Available for Further
Issuance Under
Equity Compensation
Plans (Excluding
Securities Reflected
in the First Column)
|
|
|
Equity compensation plan approved by security holders (1)
|
|
|
360,169
|
|
|
$
|
3.53
|
|
|
|
639,831
|
|
|
Equity compensation plans not approved by security holders
|
|
|
-
|
|
|
$
|
-
|
|
|
|
-
|
|
|
Total
|
|
|
360,169
|
|
|
$
|
3.53
|
|
|
|
639,831
|
|
|
(1)
|
Consists
solely of the 2018 Incentive Compensation Plan.
|
Director
Compensation
We
compensate each non-employee director through annual equity grants and/or cash grants. Our Board of directors will review director compensation
annually and adjust it according to then current market conditions and good business practices.
Non-Employee
Director Compensation Table
The
following table sets forth summary information concerning compensation paid or accrued for services rendered to us in all capacities
to the non-employee members of our Board of Directors for the year ended December 31, 2020.
|
Name
|
|
Fees Paid
in Cash
|
|
|
Stock
Awards
(1)
|
|
|
Option
Awards
|
|
|
Non-Equity
Incentive
Plan
Compensation
|
|
|
Nonqualified
Deferred
Compensation
Earnings
|
|
|
All Other
Comp
|
|
|
Total
|
|
|
David Ellwanger(3)
|
|
$
|
12,500
|
|
|
$
|
-
|
|
|
$
|
14,200
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
26,700
|
|
|
George Hampton(3)
|
|
$
|
12,500
|
|
|
$
|
-
|
|
|
$
|
14,200
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
26,700
|
|
|
Dean Weiland(2)
|
|
$
|
4,500
|
|
|
$
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
4,500
|
|
|
Gerard M. Hayden, Jr. (3)
|
|
$
|
8,000
|
|
|
$
|
48,300
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
56,300
|
|
|
Maurice E. Evans
|
|
$
|
2,000
|
|
|
$
|
80,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
82,000
|
|
|
Michael D. Pruitt
|
|
$
|
2,000
|
|
|
$
|
80,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
82,000
|
|
|
Cary W. Sucoff
|
|
$
|
2,000
|
|
|
$
|
80,000
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
|
-
|
|
|
$
|
82,000
|
|
|
(1)
|
Represents
full fair value at grant date of RSUs granted to our directors, computed in accordance with FASB ASC Topic 718.
|
|
(2)
|
Mr.
Weiland resigned as a director on February 10, 2020, and Gerard M. Hayden, Jr. was appointed to replace Mr. Weiland on the same date.
|
|
(3)
|
Messrs.
Ellwanger, Hampton and Hayden resigned as directors effective as of the earlier date of November 30, 2020 or the appointment of their
respective replacements. Messrs. Evans, Pruitt and Sucoff were elected as members of the Board of Directors as of October 31, 2020.
|
ANNUAL
REPORT
A
copy of our Annual Report on Form 10-K for the year ended December 31, 2020 has been provided to all stockholders as of June 18, 2021.
Stockholders are referred to the report for financial and other information about us, but such report is not incorporated in this Proxy
Statement and is not a part of the proxy soliciting material.
We
will provide without charge to any stockholder, as of the record date, copies of our Annual Report, upon written request delivered to
our Corporate Secretary, at the Company’s offices at IMAC Holdings, Inc., 1605 Westgate Circle, Brentwood, Tennessee 37027.
|
|
|
By
order of the Board of Directors,
|
|
|
|
|
|
|
|
|
|
|
|
Jeffrey
S. Ervin
|
|
|
|
Chairman
of the Board and Chief Executive Officer
|
|
Brentwood,
Tennessee
|
|
|
|
June
30, 2021
|
|
|
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