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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of
The Securities Exchange Act of 1934
Date
of Report (Date of earliest event reported)
October
25, 2024
CAN
B CORP.
(Exact
name of registrant as specified in its charter)
| Florida |
|
000-5573 |
|
20-3624118 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
960
Broadway, Suite 118
Hicksville,
NY 11801
(Address
of principal executive offices, including zip code)
(516)
595-9544
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions (see General Instruction A.2. below):
| ☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
|
| ☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| |
|
| ☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item
1.01. |
Entry
into a Material Definitive Agreement. |
Adoption
of Agreement and Plan of Merger and Consummation of Holding Company Reorganization
On
October 25, 2024, Can B Corp. (“Can B”) implemented a holding company reorganization (the “Nascent Merger”)
pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 23, 2024, among Can B,
Nascent Pharma Holdings, Inc., a Florida corporation (“Nascent”), and Nascent Merger Sub, Inc., a Florida corporation
(“Merger Sub”), which resulted in Nascent owning all of the outstanding capital stock of Can B. Pursuant to the Nascent
Merger, Merger Sub, a direct, wholly owned subsidiary of Nascent and an indirect, wholly owned subsidiary of Can B, merged with and into
Can B, with Can B surviving as a direct, wholly owned subsidiary of Nascent. Each share of each class of Can B stock issued and outstanding
immediately prior to the Nascent Merger automatically converted into an equivalent corresponding share of Nascent stock, having the same
designations, rights, powers and preferences and the qualifications, limitations and restrictions as the corresponding share of Can B
stock being converted. Accordingly, upon consummation of the Nascent Merger, Can B’s stockholders immediately prior to the consummation
of the Nascent Merger became stockholders of Nascent. The stockholders of Can B will not recognize gain or loss for U.S. federal income
tax purposes upon the conversion of their shares in the Nascent Merger.
The
Nascent Merger was conducted pursuant to Section 607.11045 of the Florida Business Corporation Act (the “FBCA”), which
provides for the formation of a holding company without a vote of the stockholders of the constituent corporation. The conversion of
stock occurred automatically without an exchange of stock certificates. After the Nascent Merger, unless exchanged, stock certificates
that previously represented shares of a class of Can B stock now represent the same number of shares of the corresponding class of Nascent
stock. Immediately after consummation of the Nascent Merger, Nascent has, on a consolidated basis, the same assets, businesses and operations
as Can B had immediately prior to the consummation of the Nascent Merger.
As
a result of the Nascent Merger, Nascent became the successor issuer to Can B pursuant to 12g-3(a) of the Exchange Act and as a result
the shares of Nascent Common Stock are deemed registered under Section 12(g) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”).
The
foregoing descriptions of the Nascent Merger and Merger Agreement do not purport to be complete and are qualified in their entirety by
reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 and which is incorporated by reference herein.
| Item
3.01. |
Notice
of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
In
connection with the Nascent Merger, Can B notified the Financial Industry Regulatory Authority (“FINRA”) that it planned
to complete the Nascent Merger and, in connection therewith, requested that a new trading symbol be assigned to Nascent. FINRA requested
that a new notice be submitted to FINRA after the Nascent Merger is complete. As a result, the change in issuer name and trading symbol
on the OTCQB Market will not occur until FINRA completes the processing of the name change and assigns Nascent a trading symbol.
On
October 28, 2024,
Can B filed a
certificate on Form 15 with the U.S. Securities and Exchange Commission (the “Commission”) under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) requesting that Can B shares be deregistered under the Exchange Act, and that
Can B’s reporting obligations under the Exchange Act be suspended (except to the extent of the succession of Nascent to the Exchange
Act Section 12(g) registration and reporting obligations of Can B).
| Item
3.03. |
Material
Modification of Rights of Securityholders. |
Upon
consummation of the Nascent Merger, each share of each class of Can B stock issued and outstanding immediately prior to the Nascent Merger
automatically converted into an equivalent corresponding share of Nascent stock, having the same designations, rights, powers and preferences
and the qualifications, limitations and restrictions as the corresponding share of Can B stock that was converted.
The
information set forth in Item 1.01 and Item 5.03 is hereby incorporated by reference in this Item 3.03.
| Item
5.02. |
Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
In
connection with the Nascent Merger, on October 25, 2024, Can B also entered into the Compensation Plan Agreement with Nascent pursuant
to which Nascent assumed (including sponsorship of) the Can B 2021 Incentive Stock Option Plan and any subplans, appendices or addendums
thereunder (together, the “Can B Equity Compensation Plans”), and all obligations of Can B pursuant to each stock option
to purchase a share of Can B stock (a “Can B Option”) that was outstanding immediately prior to October 25, 2024 and issued
under the Can B Equity Compensation Plans and underlying grant agreements (each such grant agreement, a “Can B Stock Option Agreement”
and such grant agreements together with the Can B Equity Compensation Plans, the “Can B Equity Compensation Plans and Agreements”).
On October 25, 2024, each such Can B Option was converted into an option to purchase a Nascent share at an exercise price per share equal
to the exercise price per share of the Can B stock subject to such Can B Option immediately prior to October 25, 2024. On October 25,
2024, the Can B Options and the Can B Equity Compensation Plans and Agreements were automatically deemed to be amended (and, in the case
of the Can B 2021 Incentive Stock Plan, formally amended), to the extent necessary or appropriate, to provide that references to Can
B in such awards, documents and provisions will be read to refer to Nascent and references to shares of Can B stock in such awards, documents
and provisions will be read to refer to Nascent shares.
The
foregoing descriptions of the Compensation Plan Agreement do not purport to be complete and are qualified in their entirety by reference
to the full text of the Compensation Plan Agreement which is filed as Exhibit 10.1 and which is incorporated by reference herein.
| Item
5.03. |
Amendments
to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On
October 25, 2015, the Articles of Incorporation of Can B (the “Can B Charter”) was amended pursuant to the Nascent Merger
to add a provision, which is required by Section 607.11045(g)_ of the FBCA, that provides that any act or transaction by or involving
Can B, other than the election or removal of directors, that requires for its adoption under the FBCA or the Can B Charter the approval
of the stockholders of Can B shall require the approval of the stockholders of Nascent by the same vote as is required by the FBCA and/or
the Can B Charter.
| Item
9.01. |
Financial
Statements and Exhibits. |
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
| |
CAN
B CORP. |
| |
|
| Date:
October 28, 2024 |
/s/
Marco Alfonsi |
| |
Marco
Alfonsi |
| |
Chief
Executive Officer |
INDEX
TO EXHIBITS
EXHIBIT
2.1
AGREEMENT
AND PLAN OF MERGER
This
AGREEMENT AND PLAN OF MERGER (the “Agreement”), entered into as of October 23, 2024, by and among Can B Corp., a Floridacorporation
(the “Company”), Nascent Pharma Holdings, Inc., a Florida corporation (“Holdco”) and a direct,
wholly owned subsidiary of the Company, and Nascent Merger Sub, Inc., a Florida corporation (“Merger Sub”) and a direct,
wholly owned subsidiary of Holdco.
RECITALS
WHEREAS,
on the date hereof, the Company has the authority to issue 1,505,000,000 shares, consisting of: (i) 1,500,000,000 shares of Common Stock,
par value $0.001 per share (the “Company Common Stock”), of which 71,239,311 shares are issued and outstanding (ii)
20 shares of Series A Preferred Stock, par value $0.001 per share (the “Company Series A Preferred Stock”), of which
5 shares are issued and outstanding; (iii) 2,000 shares of Series C Preferred Stock, par value $0.001 per share (the “Company
Series C Preferred Stock”), of which 1,100 shares are issued and outstanding; and (iv) 4,000 shares of Series D Preferred Stock,
par value $0.001 per share (the “Company Series D Preferred Stock”), of which 4,000 shares are issued and outstanding.
WHEREAS,
as of the Effective Time (as defined below), Holdco will have the authority to issue 1,505,000,000 shares, consisting of: (i) 1,500,000,000
shares of Common Stock, par value $0.001 per share (the “Holdco Common Stock”) (ii) 20 shares of Series A Preferred
Stock, par value $0.001 per share (the “Holdco Series A Preferred Stock”); (iii) 2,000 shares of Series C Preferred
Stock, par value $0.001 per share (the “Holdco Series C Preferred Stock”); and (iv) 4,000 shares of Series D Preferred
Stock, par value $0.001 per share (the “Holdco Series D Preferred Stock”).
WHEREAS,
as of the date hereof, Merger Sub has the authority to issue 1,000 shares of common stock, par value $0.001 per share (the “Merger
Sub Common Stock”), of which 100 shares are issued and outstanding on the date hereof and owned by Holdco.
WHEREAS,
as of the Effective Time, the designations, rights, powers and preferences, and the qualifications, limitations and restrictions of the
Holdco Series A Preferred Stock, Holdco Series C Preferred Stock and Holdco Series D Preferred Stock will be the same as those of the
Company Series A Preferred Stock, Company Series C Preferred Stock and Company Series D Preferred Stock, respectively.
WHEREAS,
the Articles of Incorporation of Holdco (the “Holdco Charter”) and the Bylaws of Holdco (the “Holdco Bylaws”),
which will be in effect immediately following the Effective Time, contain provisions substantially identical to the Articles of Incorporation
of the Company (the “Company Charter”) and the Bylaws of the Company (the “Company Bylaws”), in
effect as of the date hereof and that will be in effect immediately prior to the Effective Time, respectively (other than as permitted
by Section 607.11045 of the Florida Business Corporation Act (the “FBCA”))., except to th extent permitted by Section
607.11045 of the FBCA.
WHEREAS,
Holdco and Merger Sub are newly formed corporations organized for the sole purpose of participating in the transactions herein contemplated
and actions related thereto, own no assets (other than Holdco’s ownership of Merger Sub and nominal capital) and have taken no
actions other than those necessary or advisable to organize the corporations and to effect the transactions herein contemplated and actions
related thereto.
WHEREAS,
the Company desires to reorganize into a holding company structure pursuant to Section 607.11045 of the FBCA, under which Holdco would
become a holding company, by the merger of Merger Sub with and into the Company, and with each share of Company Common Stock Company
Series A Preferred Stock, Company Series C Preferred Stock and Company Series D Preferred Stock being converted in the Merger (as defined
below) into a share of Holdco Common Stock, Holdco Series A Preferred Stock, Holdco Series C Preferred Stock, or Holdco Series D Preferred
Stock, respectively.
WHEREAS,
on or about the date hereof, the Company and Holdco will enter or have entered into a Compensation Plan Agreement, pursuant to which,
among other things, the Company will, at the Effective Time, transfer to Holdco, and Holdco will assume, sponsorship of all of the Company’s
Equity Plans (as defined below) and all of the Company’s rights and obligations thereunder.
WHEREAS,
the boards of directors of Holdco and the Company have approved and declared advisable this Agreement and the transactions contemplated
hereby, including, without limitation, the Merger.
WHEREAS,
the board of directors of Merger Sub has (i) approved and declared advisable this Agreement and the transactions contemplated hereby,
including, without limitation, the Merger, (ii) resolved to submit the approval of the adoption of this Agreement and the transactions
contemplated hereby, including, without limitation, the Merger, to its sole stockholder, and (iii) resolved to recommend to its sole
stockholder that it approve the adoption of this Agreement and the transactions contemplated hereby, including, without limitation, the
Merger.
WHEREAS,
the parties intend, for United States federal income tax purposes, the Merger shall qualify as an exchange described in Section 351 of
the Internal Revenue Code.
NOW,
THEREFORE, in consideration of the premises and the covenants and agreements contained in this Agreement, and intending to be legally
bound hereby, the Company, Holdco and Merger Sub hereby agree as follows:
1.
THE MERGER. In accordance with Section 11045 of the FBCA and subject to, and upon the terms and conditions of, this Agreement, Merger
Sub shall be merged with and into the Company (the “Merger”), the separate corporate existence of Merger Sub shall
cease, and the Company shall continue as the surviving corporation of the Merger (the “Surviving Corporation”). At
the Effective Time, the effects of the Merger shall be as provided in this Agreement and in Section 607.1106 of the FBCA.
2.
EFFECTIVE TIME. As soon as practicable on or after the date hereof, the Company shall file articles of merger executed in accordance
with the relevant provisions of the FBCA, with the Secretary of State of the State of Florida (the “Secretary of State”)
and shall make all other filings or recordings required under the FBCA to effectuate the Merger. The Merger shall become effective at
such time as the certificate of merger is duly filed with the Secretary of State or at such later date and time as the parties shall
agree and specify in the certificate of merger (the date and time the Merger becomes effective being referred to herein as the “Effective
Time”).
3.
CERTIFICATE OF INCORPORATION. At the Effective Time, the Company Charter shall be amended in the Merger as set forth below, and as
so amended, shall be the certificate of incorporation of the Surviving Corporation (the “Surviving Corporation Charter”)
until thereafter amended as provided therein or by the FBCA.
(a)
The Company Charter shall be amended by adding a new Artcile VIII to read in its entirety as follows:
ARTICLE
VIII
Any
act or transaction by or involving the Corporation, other than the election or removal of directors of the Corporation, that requires
for its adoption under the Florida Business Corporation Act or these Articles of Incorporation the approval of the stockholders of the
Corporation shall, in accordance with Section 607.11045 of the Florida Business Corporation Act, require, in addition, the approval of
the stockholders of Nascent Pharma Holdings, Inc. (or any successor thereto by merger), by the same vote as is required by the Florida
Business Corporation Act and/or these Articles of Incorporation.
4.
BYLAWS. From and after the Effective Time, the Company Bylaws, as in effect immediately prior to the Effective Time, shall constitute
the Bylaws of the Surviving Corporation (the “Surviving Corporation Bylaws”) until thereafter amended as provided
therein or by applicable law.
5.
DIRECTORS. The directors of the Company in office immediately prior to the Effective Time shall be the directors of the Surviving
Corporation and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their
successors are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation
Bylaws, or as otherwise provided by law.
6.
OFFICERS. The officers of the Company in office immediately prior to the Effective Time shall be the officers of the Surviving Corporation
and will continue to hold office from the Effective Time until the earlier of their resignation or removal or until their successors
are duly elected or appointed and qualified in the manner provided in the Surviving Corporation Charter and Surviving Corporation Bylaws,
or as otherwise provided by law.
7.
ADDITIONAL ACTIONS. If, at any time after the Effective Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments, assurances or any other actions or things are necessary or desirable to vest, perfect or confirm, of record
or otherwise, in the Surviving Corporation its right, title or interest in, to or under any of the rights, properties or assets of either
Merger Sub or the Company acquired or to be acquired by the Surviving Corporation as a result of, or in connection with, the Merger or
otherwise to carry out this Agreement, the officers and directors of the Surviving Corporation shall be authorized to execute and deliver,
in the name and on behalf of each of Merger Sub and the Company, all such deeds, bills of sale, assignments and assurances and to take
and do, in the name and on behalf of each of Merger Sub and the Company or otherwise, all such other actions and things as may be necessary
or desirable to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties or assets in
the Surviving Corporation or otherwise to carry out this Agreement.
8.
CONVERSION OF SECURITIES. At the Effective Time, by virtue of the Merger and without any action on the part of Holdco, Merger Sub,
the Company or any holder of any securities thereof:
(a)
Conversion of Company Common Stock, Company Series A Preferred Stock, Company Series C Preferred Stock and Company Series D Preferred
Stock. Each share of Company Common Stock, Company Series A Preferred Stock, Company Series C Preferred Stock and Company Series
D Preferred Stock issued and outstanding immediately prior to the Effective Time shall be converted into one validly issued, fully paid
and nonassessable share of Holdco Common Stock, Holdco Series A Preferred Stock, Holdco Series C Preferred Stock and Holdco Series D
Preferred Stock, respectively.
(b)
Conversion of Company Common Stock Held as Treasury Stock. Each share of Company Common Stock held in the Company’s treasury
shall be converted into one validly issued, fully paid and nonassessable share of Holdco Common Stock, to be held immediately after completion
of the Merger in the treasury of Holdco.
(c)
Conversion of Capital Stock of Merger Sub. Each share of Merger Sub Common Stock issued and outstanding immediately prior to the
Effective Time shall be converted into one validly issued, fully paid and nonassessable share of Common Stock, without par value, of
the Surviving Corporation.
(d)
Rights of Certificate Holders. Upon conversion thereof in accordance with this Section 8, all shares of Company Common
Stock, Company Series A Preferred Stock, Company Series C Preferred Stock and Company Series D Preferred Stock shall no longer be outstanding
and shall cease to exist, and each holder of a certificate representing any such shares of Company Common Stock, Company Series A Preferred
Stock, Company Series C Preferred Stock, or Company Series D Preferred Stock shall cease to have any rights with respect to such shares
of Company Common Stock, Company Series A Preferred Stock, Company Series C Preferred Stock or Company Series D Preferred Stock, respectively,
except, in all cases, as set forth in Section 9 herein. In addition, each outstanding book-entry that, immediately prior to the
Effective Time, evidenced shares of Company Common Stock, Company Series A Preferred Stock, Company Series C Preferred Stock or Company
Series D Preferred Stock shall, from and after the Effective Time, be deemed and treated for all corporate purposes to evidence the ownership
of the same number of shares of Holdco common Stock, Holdco Series A Preferred Stock, Holdco Series C Preferred Stock or Holdco Series
D Preferred Stock, respectively.
9.
CERTIFICATES. At and after the Effective Time until thereafter surrendered for transfer or exchange in the ordinary course, each
outstanding certificate which immediately prior thereto represented shares of Company Common Stock, Company Series A Preferred Stock,
Company Series C Preferred Stock or Company Series D Preferred Stock shall be deemed for all purposes to evidence ownership of and to
represent the shares of Holdco Common Stock, Holdco Series A Preferred Stock, Holdco Series C Preferred Stock or Holdco Series D Preferred
Stock, as applicable, into which the shares of Company Common Stock, Company Series A Preferred Stock, Company Series C Preferred Stock
or Company Series D Preferred Stock represented by such certificate have been converted as herein provided and shall be so registered
on the books and records of Holdco and its transfer agent. At and after the Effective Time, the shares of capital stock of Holdco shall
be uncertificated; provided, that, any shares of capital stock of Holdco that are represented by outstanding certificates of the
Company pursuant to the immediately preceding sentence shall continue to be represented by certificates as provided therein and shall
not be uncertificated unless and until a valid certificate representing such shares pursuant to the immediately preceding sentence is
delivered to Holdco at its registered office in the State of Florida, its principal place of business, or an officer or agent of Holdco
having custody of books and records of Holdco, at which time such certificate shall be canceled and in lieu of the delivery of a certificate
representing the applicable shares of capital stock of Holdco, Holdco shall (i) issue to such holder the applicable uncertificated shares
of capital stock of Holdco by registering such shares in Holdco’s books and records as book-entry shares, upon which such shares
shall thereafter be uncertificated and (ii) take all action necessary to provide such holder with evidence of the uncertificated book-entry
shares, including any action necessary under applicable law in accordance therewith, including in accordance with Sections 607.0626 and
607.0627 of the FBCA. If any certificate that prior to the Effective Time represented shares of Company Common Stock, Company Series
A Preferred Stock, Company Series C Preferred Stock or Company Series D Preferred Stock shall have been lost, stolen or destroyed, then,
upon the making of an affidavit of such fact by the person or entity claiming such certificate to be lost, stolen or destroyed and the
providing of an indemnity by such person or entity to Holdco, in form and substance reasonably satisfactory to Holdco, against any claim
that may be made against it with respect to such certificate, Holdco shall issue to such person or entity, in exchange for such lost,
stolen or destroyed certificate, uncertificated shares representing the applicable shares of Holdco Common Stock, Holdco Series A Preferred
Stock, Holdco Company Series C Preferred Stock or Holdco Series D Preferred Stock in accordance with the procedures set forth in the
preceding sentence.
10.
ASSUMPTION OF EQUITY PLANS AND AWARDS.
At
the Effective Time, pursuant to this Merger Agreement and the Compensation Plan Agreement entered into between Holdco and the Company
on or about the date hereof (the “Compensation Plan Agreement”), the Company will transfer to Holdco, and Holdco will
assume, sponsorship of all of the Company’s Equity Plans (as defined below), along with all of the Company’s rights and obligations
under the Equity Plans.
At
the Effective Time, pursuant to this Merger Agreement and the Compensation Plan Agreement, the Company will transfer to Holdco, and Holdco
will assume, its rights and obligations under each stock option to purchase a share of Company capital stock (each, a “Stock
Option”) issued under the Equity Plans that is outstanding and unexercised, unvested and not yet paid or payable immediately
prior to the Effective Time, which Stock Options shall be converted into a stock option to purchase or a right to acquire or vest in,
respectively, a share of Holdco capital stock of the same class and with the same rights and privileges relative to Holdco that such
share underlying such Stock Option had relative to the Company immediately prior to the Effective Time on otherwise the same terms and
conditions as were applicable immediately prior to the Effective Time, including at an exercise price per share equal to the exercise
price per share for the applicable share of Company capital stock. For purposes of this Agreement, “Equity Plans”
shall mean, collectively, the Can B Corp. 2021 Incentive Stock Option Plan, and any and all subplans, appendices or addendums thereto,
and any and all agreements evidencing Awards.
11.
HOLDCO SHARES. Prior to the Effective Time, the Company and Holdco shall take any and all actions as are necessary to ensure that
each share of capital stock of Holdco that is owned by the Company immediately prior to the Effective Time shall be cancelled and cease
to be outstanding at the Effective Time, and no payment shall be made therefor, and the Company, by execution of this Agreement, agrees
to forfeit such shares and relinquish any rights to such shares.
12.
NO APPRAISAL RIGHTS. In accordance with the FBCA, no appraisal rights shall be available to any holder of shares of Company Common
Stock, Company Series A Preferred Stock, Company Series C Preferred Stock or Company Series D Preferred Stock in connection with the
Merger.
13.
TERMINATION. This Agreement may be terminated, and the Merger and the other transactions provided for herein may be abandoned, whether
before or after the adoption of this Agreement by the sole stockholder of Merger Sub, at any time prior to the Effective Time, by action
of the board of directors of the Company. In the event of termination of this Agreement, this Agreement shall forthwith become void and
have no effect, and neither the Company, Holdco, Merger Sub nor their respective stockholders, directors or officers shall have any liability
with respect to such termination or abandonment.
14.
AMENDMENTS. At any time prior to the Effective Time, this Agreement may be supplemented, amended or modified, whether before or after
the adoption of this Agreement by the sole stockholder of Merger Sub, by the mutual consent of the parties to this Agreement by action
by their respective boards of directors; provided, however, that, no amendment shall be effected subsequent to the adoption
of this Agreement by the sole stockholder of Merger Sub that by law requires further approval or authorization by the sole stockholder
of Merger Sub or the stockholders of the Company without such further approval or authorization. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by all of the parties hereto.
15.
GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, regardless
of the laws that might otherwise govern under applicable principles of conflicts of laws.
16.
COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when executed shall be deemed to be an original
but all of which shall constitute one and the same agreement.
17.
ENTIRE AGREEMENT. This Agreement, including the documents and instruments referred to herein, constitutes the entire agreement and
supersedes all other prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the
subject matter hereof.
18.
SEVERABILITY. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or
unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions
hereof.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Company, Holdco and Merger Sub have caused this Agreement to be executed as of the date first written above
by their respective officers thereunto duly authorized.
| |
CAN
B CORP. |
| |
|
|
| |
By: |
/s/
Marco Alfonsi |
| |
Name: |
Marco
Alfonsi |
| |
Title: |
President |
| |
|
| |
NASCENT
PHARMA HOLDINGS, INC. |
| |
|
|
| |
By: |
/s/
Marco Alfonsi |
| |
Name: |
Marco
Alfonsi |
| |
Title: |
President |
| |
|
| |
NASCENT
MERGER SUB, INC. |
| |
|
|
| |
By: |
/s/
Marco Alfonsi |
| |
Name: |
Marco
Alfonsi |
| |
Title: |
President
|
EXHIBIT
3.1
Articles
of Merger
The
following Articles of Merger are submitted in accordance with Section 607.1105 of the Florida Business Corporation Act (the “FBCA”).
First:
The
name and jurisdiction of the surviving corporation:
NAME
Can
B Corp. |
|
JURISDICTION
Florida |
|
DOCUMENT
NO.
P05000139155 |
Second:
The
name and jurisdiction of each merging corporation:
NAME
Nascent
Merger Sub, Inc. |
|
JURISDICTION
Florida |
|
DOCUMENT
NO.
P24000058413 |
Third:
The
merger shall become effective on October 25, 2024.
Fourth:
The
merger was approved by each domestic merging corporation in accordance with s.607.1101(1)(b), F.S.
Fifth:
The
surviving corporation exists before the merger and is a domestic filing entity.
Sixth:
The
Plan of Merger was adopted by the surviving corporation’s Board of Directors.
Seventh:
The
Plan of Merger did not require approval by the shareholders.
Eighth:
The
secretary of the surviving corporation certifies herein that the Plan of Merger has been adopted pursuant to s.607.11045, F.S., and the
conditions specified in subsection (3) of same have been satisfied.
Ninth:
The
undersigned corporation has caused this statement to be signed by a duly authorized officer or director who affirms, under penalties
of perjury, that the facts stated above are true and correct.
[signatures
on next page]
| Dated:
October 23, 2024 |
CAN
B CORP. |
| |
|
|
| |
By: |
/s/
Marco Alfonsi |
| |
|
Marco
Alfonsi, President |
| |
|
|
| |
By: |
/s/
Stanley Teeple |
| |
|
Stanley
Teeple, Secretary |
| |
|
|
| Dated:
October 23, 2024 |
NASCENT MERGER SUB, INC. |
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|
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By: |
/s/
Marco Alfonsi |
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Marco
Alfonsi, President |
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|
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By: |
/s/
Stanley Teeple |
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Stanley
Teeple, Secretary |
EXHIBIT
10.1
COMPENSATION
PLAN AGREEMENT
THIS
COMPENSATION PLAN AGREEMENT (this “Agreement”) dated as of October 25, 2024 is between Can B Corp., a Florida
corporation (“Can B”) (which will be the surviving entity following the merger at the Effective Time (as defined herein),
in which Nascent Merger Inc., a Florida corporation (“MergerSub”) will be merged with and into Can B) and Nascent
Pharma Holdings, Inc., a Florida corporation (“Nascent”). All capitalized terms used in this Agreement and not defined
herein have the respective meanings ascribed to them in the Agreement and Plan of Merger, dated as of October 23_ 2024 (the “Merger
Agreement”), by and among Can B, Nascent and MergerSub.
RECITALS
WHEREAS,
pursuant to the Merger Agreement, at the Effective Time, MergerSub will be merged with and into Can B, with Can B continuing as the surviving
entity in such merger and each outstanding share of capital stock of Can B (“Can B Stock”) will be converted into
one share of capital stock of Nascent (“Nascent Stock”) of the same class and with the same rights and privileges
relative to Nascent that such share had relative to Can B prior to the merger (the “Reorganization”);
WHEREAS,
in connection with the Reorganization, (A) Can B will transfer (including sponsorship of) to Nascent, and Nascent will assume (including
sponsorship of), Can B’s 2020 Incentive Stock Option Plan and any subplans, appendices or addendums thereto (the “Can
B Equity Compensation Plans”) and all obligations of Can B pursuant to each stock option to purchase a share of Can B Stock
(a “Can B Option”) that is outstanding immediately prior to the Effective Time and issued under the Can B Equity Compensation
Plans and underlying grant agreements (each such grant agreement, a “Can B Option Agreement” and such grant agreements
together with the Can B Equity Compensation Plans, the “Can B Equity Compensation Plans and Agreements”), all upon
the terms and subject to the conditions set forth in the Merger Agreement and this Agreement, and (B) each such Can B Option will be
converted into an option to purchase a share of Nascent Stock at an exercise price per share equal to the exercise price per share of
Can B Stock subject to such Can B Option immediately prior to the Effective Time;
WHEREAS,
the Board of Directors of Can B has determined that it is in the best interests of Can B for Can B to enter into this Agreement;
WHEREAS,
the Board of Directors of Nascent has determined that it is in the best interests of Nascent and its shareholders for Nascent to enter
into this Agreement;
WHEREAS,
the Board of Directors of Can B and the Board of Directors of Nascent have determined that the Reorganization does not constitute a “Change
in Control” under the Can B Equity Compensation Plans and Agreements or the Can B Options.
NOW,
THEREFORE, for good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, Can B and
Nascent hereby agree as follows:
I.
EQUITY
PLANS AND AWARDS
1.
Subject to and as of the Effective Time, Nascent will assume and will perform, from and after the Effective Time, all of the obligations
of Can B pursuant to the Can B Equity Compensation Plans and Agreements.
2.
Subject to and as of the Effective Time, Nascent will assume each Can B Option that is outstanding and unexercised prior to the Effective
Time each such Can B Option shall be converted into an option to purchase, on otherwise the same terms and conditions as were applicable
under the applicable Can B Equity Compensation Plan and/or Can B Option Agreement (as modified herein), a share of Nascent Stock with
the same rights and privileges applicable to the share of Can B Stock subject to such Can B Option immediately prior to the Effective
Time, at an exercise price per share equal to the exercise price per share of Can B Stock subject to such Can B Option immediately prior
to the Effective Time. All Can B Options shall be adjusted and converted in accordance with the requirements of Section 424 of the United
States Internal Revenue Code of 1986, as amended, and regulations thereunder.
3.
At the Effective Time, the Can B Options, the Can B Equity Compensation Plans and can B Option Agreements and shall each be automatically
deemed to be amended, to the extent necessary or appropriate, to provide that references to Can B in such awards, documents and provisions
shall be read to refer to Nascent and references to Can B Stock in such awards, documents and provisions shall be read to refer to Nascent
Stock. Nascent and Can B agree to (i) prepare and execute all amendments to the Can B Equity Compensation Plans and Agreements, Can B
Option Agreements and other documents necessary to effectuate Nascent’s assumption of the Can B Equity Compensation Plans and Agreements
and outstanding Can B Options, (ii) provide notice of the assumption to holders of such Can B Options, and (iii) submit any required
filings with the Securities and Exchange Commission in connection with same.
4.
On or prior to the Effective Time, Nascent shall reserve sufficient shares of Nascent Stock to provide for the issuance of Nascent Stock
to satisfy Nascent’s obligations under this Agreement with respect to the Can B Options.
5.
Can B and Nascent agree that the Reorganization does not constitute a “Change in Control” under the Can B Equity Compensation
Plans and Agreements or the Can B Option Agreements.
II.
MISCELLANEOUS
1.
Each of Can B and Nascent will, from time to time and at all times hereafter, upon every reasonable request to do so by any other party
hereto, make, do, execute and deliver, or cause to be made, done, executed and delivered, all such further acts, deeds, assurances and
things as may be reasonably required or necessary in order to further implement and carry out the intent and purpose of this Agreement.
IN
WITNESS WHEREOF, the undersigned have executed this Compensation Plan Agreement as of the date first written above.
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CAN
B INC. |
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a
Florida corporation |
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|
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By: |
/s/
Marco Alfonsi |
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Name:
Marco Alfonsi |
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|
Title:
Chief Executive Officer |
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|
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NASCENT
PHARMA HOLDINGS, INC.
a
Florida corporation |
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|
|
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By: |
/s/
Marco Alfonsi |
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|
Name:
Marco Alfonsi |
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|
Title:
Chief Executive Officer |
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