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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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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Hepion Pharmaceuticals, 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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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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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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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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Date Filed:
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Hepion Pharmaceuticals, Inc.
399 Thornall Street, First Floor
Edison, NJ 08837
NOTICE OF 2021 ANNUAL MEETING OF STOCKHOLDERS
To Be Held on , 2021
Dear Stockholder:
We are pleased to invite you
to attend the annual meeting of stockholders (the “Annual Meeting”) of Hepion Pharmaceuticals, Inc. (“Hepion”
or the “Company”), which will be held on , 2021 at 9:00 a.m. local time at our offices, located at 399 Thornall
Street, First Floor, Edison, NJ 08837, for the following purposes:
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1.
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To elect seven (7) members to our board of directors to hold office until the 2022 Annual Meeting;
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2.
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To ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for our
fiscal year ending December 31, 2021;
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3.
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To consider and act upon a proposal to approve the Company’s 2021 Omnibus Equity Incentive
Plan (the “2021 Plan”);
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4.
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To amend our certificate of incorporation, as amended, to increase the number of shares of authorized
common stock from 120,000,000 to 240,000,000;
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5.
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To conduct an advisory vote to approve the compensation of the Company’s named executive officers,
referred to as “say-on-pay;”
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6.
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To approve, on an advisory basis, the preferred frequency of stockholder advisory votes on executive compensation,
referred to as “say-on-frequency;” and
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7.
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To transact such other matters as may properly come before the Annual Meeting and any adjournment or postponement
thereof.
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Our board of directors has
fixed the close of business on , 2021 as the record date for a determination of stockholders entitled
to notice of, and to vote at, the Annual Meeting or any adjournment or postponement thereof.
If You Plan to Attend
Please note that space limitations
make it necessary to limit attendance of the Annual Meeting to our stockholders. Registration and seating will begin at 8:00 a.m. Shares
of common stock can be voted at the Annual Meeting only if the holder thereof is present in person or by valid proxy.
For admission to the Annual
Meeting, each stockholder may be asked to present valid picture identification, such as a driver’s license or passport, and proof
of stock ownership as of the record date, such as the enclosed proxy card or a brokerage statement reflecting stock ownership. Cameras,
recording devices and other electronic devices will not be permitted at the Annual Meeting. If you do not plan on attending the Annual
Meeting, please vote, date and sign the enclosed proxy and return it in the business envelope provided. Even if you do plan to attend
the Annual Meeting, we recommend that you vote your shares at your earliest convenience in order to ensure your representation at the
Annual Meeting. Your vote is very important.
If you have any questions or need assistance
voting your shares, please call Kingsdale Advisors at:
Strategic Shareholder Advisor and Proxy Solicitation
Agent
745
Fifth Avenue, 5th Floor, New York, NY 10151
North American Toll Free Phone:
1-800-749-9052
Email: contactus@kingsdaleadvisors.com
Call Collect Outside North America: 416-867-2272
Important Notice Regarding the Availability of Proxy Materials for
the Annual Meeting to Be Held on , 2021 at 9:00 a.m. local time
at 399 Thornall Street, First Floor, Edison, NJ 08837.
The proxy statement and annual report to stockholders
are available at
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By the Order of the Board of Directors
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/s/ Gary S. Jacob
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Gary S. Jacob
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Chairman of the Board of Directors
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Dated: ,
2021
Whether or not you expect to attend the Annual
Meeting in person, we urge you to vote your shares at your earliest convenience. This will ensure the presence of a quorum at the Annual
Meeting. Promptly voting your shares will save the Company the expenses and extra work of additional solicitation. An addressed envelope
for which no postage is required if mailed in the United States is enclosed if you wish to vote by mail. Submitting your proxy now will
not prevent you from voting your shares at the Annual Meeting if you desire to do so, as your proxy is revocable at your option. Your
vote is important, so please act today!
Hepion Pharmaceuticals, Inc.
399 Thornall Street, First Floor
Edison, NJ 08837
PROXY STATEMENT
2021 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON ,
2021
The board of directors (the
“Board”) of Hepion Pharmaceuticals, Inc. (“Hepion” or the “Company”) is soliciting your proxy
to vote at the Annual Meeting of Stockholders (the “Annual Meeting”) to be held at our offices, located at 399 Thornall
Street, First Floor, Edison, NJ 08837, on , 2021, at 9:00 a.m. local time, including at any
adjournments or postponements of the Annual Meeting. You are invited to attend the Annual Meeting to vote on the proposals described in
this proxy statement. However, you do not need to attend the Annual Meeting to vote your shares. Instead, you may simply complete, sign
and return the enclosed proxy card if you received paper copies of the proxy materials, or follow the instructions below to submit your
proxy over the Internet.
QUESTIONS AND ANSWERS ABOUT THIS PROXY MATERIAL
AND VOTING
What is a proxy?
A proxy is the legal designation
of another person to vote the stock you own. That other person is called a proxy. If you designate someone as your proxy in a written
document, that document is also called a proxy or a proxy card. By completing, signing and returning the accompanying proxy card, you
are designating Robert Foster, Ph.D. and John Cavan, our Chief Executive Officer and Chief Financial Officer, respectively, as your proxies
for the Annual Meeting and you are authorizing Dr. Foster and Mr. Cavan to vote your shares at the Annual Meeting as you have
instructed them on the proxy card. This way, your shares will be voted whether or not you attend the Annual Meeting. Even if you plan
to attend the Annual Meeting, we urge you to vote in one of the ways described below so that your vote will be counted even if you are
unable or decide not to attend the Annual Meeting.
What is a proxy statement?
A proxy statement is a document
that we are required by regulations of the Securities and Exchange Commission, or SEC, to give you when we ask you to sign a proxy card
designating Dr. Foster and Mr. Cavan as proxies to vote on your behalf.
How do I attend the Annual Meeting?
The Annual Meeting will be
held on , 2021, at 9:00 a.m. local time at our offices, located at 399 Thornall Street,
First Floor, Edison, NJ 08837. Directions to the Annual Meeting may be found at the back of this Proxy Statement. Information on how to
vote in person at the Annual Meeting is discussed below.
Who May Attend the Annual Meeting?
Only record holders and beneficial
owners of our common stock, or their duly authorized proxies, may attend the Annual Meeting. If your shares of common stock are held in
street name, you will need to bring a copy of a brokerage statement or other documentation reflecting your stock ownership as of the Record
Date.
Who is Entitled to Vote?
The Board has fixed the
close of business on , 2021 as the record date (the “Record
Date”) for the determination of stockholders entitled to notice of, and to vote at, the Annual Meeting or any adjournment or
postponement thereof. Only stockholder who owned our common stock on _______, 2021 are entitled to vote at the Annual Meeting. In addition,
on , 2021 there were
85,581 shares of Series A Preferred Stock issued and outstanding. Each share of Series A Preferred Stock is entitled to
vote on any matter with the holders of common stock on an as converted basis. On the Record Date, there
were shares of our common stock outstanding
(including shares of common
stock issuable upon conversion of the Series A Preferred Stock).
What is the Difference Between Holding Shares
as a Record Holder and as a Beneficial Owner (Holding Shares in Street Name)?
If your shares are registered
in your name with our transfer agent, Philadelphia Stock Transfer, Inc., you are the “record holder” of those shares.
If you are a record holder, these proxy materials have been provided directly to you by the Company.
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.
The organization holding your account is considered to be the stockholder of record for purposes of voting at the Annual Meeting. As the
beneficial owner, you have the right to instruct this organization on how to vote your shares.
What am I voting on?
There are six (6) matters scheduled for a
vote:
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To elect seven (7) members to our Board to hold office until the 2022 Annual Meeting;
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To ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for our
fiscal year ending December 31, 2021;
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3.
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To consider an act upon a proposal to approve the Company’s 2021 Omnibus Equity Incentive Plan (the
“2021 Plan”);
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4.
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To amend our certificate of incorporation, as amended, to increase the number of shares of authorized
common stock from 120,000,000 to 240,000,000;
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5.
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To conduct an advisory vote to approve the compensation of the Company’s named executive officers,
referred to as “say-on-pay;” and
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6.
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To approve, on an advisory basis, the preferred frequency of stockholder advisory votes on executive compensation,
referred to as “say-on-frequency.”
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What if another matter is properly brought
before the Annual Meeting?
The Board knows of no other
matters that will be presented for consideration at the Annual Meeting. If any other matters are properly brought before the Annual Meeting,
it is the intention of the persons named in the accompanying proxy to vote on those matters in accordance with their best judgment.
How Do I Vote?
Stockholders of Record
For your convenience, record holders of our common
stock have three methods of voting:
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Vote by Internet. The website address for Internet voting is on your proxy card.
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Vote by mail. Mark, date, sign and promptly mail the enclosed proxy card (a postage-paid envelope
is provided for mailing in the United States).
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Vote in person. Attend and vote at the Annual Meeting.
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Beneficial Owners of Shares Held in Street
Name
For your convenience, beneficial owners of our
common stock have three methods of voting:
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Vote by Internet. The website address for Internet voting is on your vote instruction form.
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Vote by mail. Mark, date, sign and promptly mail your vote instruction form (a postage-paid
envelope is provided for mailing in the United States).
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Vote in person. Obtain a valid legal proxy from the organization that holds your shares and attend
and vote at the Annual Meeting.
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If you vote by Internet, please
DO NOT mail your proxy card.
All shares entitled to vote
and represented by a properly completed and executed proxy received before the Annual Meeting and not revoked will be voted at the Annual
Meeting as instructed in a proxy delivered before the Annual Meeting. If you do not indicate how your shares should be voted on a matter,
the shares represented by your properly completed and executed proxy will be voted as the Board recommends on each of the enumerated proposals,
with regard to any other matters that may be properly presented at the Annual Meeting and on all matters incident to the conduct of the
Annual Meeting. If you are a registered stockholder and attend the Annual Meeting, you may deliver your completed proxy card in person.
If you are a street name stockholder and wish to vote at the Annual Meeting, you will need to obtain a proxy form from the institution
that holds your shares. All votes will be tabulated by the inspector of elections appointed for the Annual Meeting, who will separately
tabulate affirmative and negative votes, abstentions and broker non-votes.
We provide Internet proxy
voting to allow you to vote your shares online, with procedures designed to ensure the authenticity and correctness of your proxy vote
instructions. However, please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet
access providers and telephone companies.
How Many Votes do I Have?
Each share of our common stock
(including shares of common stock issuable upon conversion of Series A Preferred Stock) that you own as of ,
2021 entitles you to one vote.
Is My Vote Confidential?
Yes, your vote is confidential.
Only the inspector of elections, individuals who help with processing and counting your votes and persons who need access for legal reasons
will have access to your vote. This information will not be disclosed, except as required by law.
What Constitutes a Quorum?
To carry on business at the
Annual Meeting, we must have a quorum. A quorum is present when one-third (1/3) of the shares entitled to vote as of the Record Date,
are represented in person or by proxy (including shares of common stock issuable upon conversion of the Series A Convertible Preferred
Stock). Thus, shares must be represented in person or by proxy to have a quorum at the Annual Meeting.
Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank
or other nominee) or if you vote in person at the Annual Meeting. Abstentions and broker non-votes will be counted towards the
quorum requirement. Shares owned by us are not considered outstanding or considered to be present at the Annual Meeting. If there is not
a quorum at the Annual Meeting, either the chairperson of the Annual Meeting or our stockholders entitled to vote at the Annual Meeting
may adjourn the Annual Meeting.
How Will my Shares be Voted if I Give No Specific
Instruction?
We must vote your shares as
you have instructed. If there is a matter on which a stockholder of record has given no specific instruction but has authorized us generally
to vote the shares, they will be voted as follows:
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“FOR” the election of each of the seven (7) members to our Board to hold office
until the 2022 Annual Meeting;
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2.
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“FOR” the ratification of the appointment of BDO USA, LLP as our independent registered
public accounting firm for our fiscal year ending December 31, 2021; and
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3.
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“FOR” the approval of the 2021 Plan.
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4.
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“FOR” the amendment to our Certificate of Incorporation, as amended, to increase the
number of authorized shares of common stock to 240,000,000 shares from 120,000,000 shares.
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5.
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“FOR” the approval of the compensation of the Company’s named executive officers,
referred to as “say-on-pay;” and
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6.
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“THREE YEARS” as the preferred frequency of stockholder advisory votes on executive
compensation, referred to as “say-on-frequency.”
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This authorization would exist,
for example, if a stockholder of record merely signs, dates and returns the proxy card but does not indicate how its shares are to be
voted on one or more proposals. If other matters properly come before the Annual Meeting and you do not provide specific voting instructions,
your shares will be voted at the discretion of the proxies.
If your shares are held in
street name, see “What is a Broker Non-Vote?” below regarding the ability of banks, brokers and other such holders
of record to vote the uninstructed shares of their customers or other beneficial owners in their discretion.
How are Votes Counted?
Votes will be counted by the
inspector of election appointed for the Annual Meeting, who will separately count, for the election of directors, “FOR,” “WITHHOLD”
and broker non-votes; and, with respect to the other proposals, votes “FOR” and “AGAINST,” abstentions
and broker non-votes.
What is a Broker Non-Vote?
If your shares are held in
street name, you must instruct the organization who holds your shares how to vote your shares. If you sign your proxy card but do not
provide instructions on how your broker should vote on “routine” proposals, your broker will vote your shares as recommended
by the Board. If you do not provide voting instructions, your shares will not be voted on any “non-routine” proposals.
This vote is called a “broker non-vote.” Because broker non-votes are not considered under Delaware law to
be entitled to vote at the Annual Meeting, broker non-votes will not be included in the tabulation of the voting results of
any of the proposals and, therefore, will have no effect on these proposals.
Brokers cannot use discretionary
authority to vote shares on the election of directors if they have not received instructions from their clients. Please submit your vote
instruction form so your vote is counted.
What is an Abstention?
An abstention is a stockholder’s
affirmative choice to decline to vote on a proposal. Under Delaware law, abstentions are counted as shares present and entitled to vote
at the Annual Meeting. However, generally, our By-Laws provide that an action of our stockholders (other than the election of
directors) is only approved if one-third (1/3) of the number of shares of stock present and entitled to vote thereat vote in favor of
such action.
How Many Votes are Needed for Each Proposal
to Pass?
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Proposal
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Vote Required
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Election of each of the seven (7) members to our Board
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Plurality of the votes cast (the six directors receiving the most “FOR” votes)
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Ratification of the Appointment of BDO USA, LLP as our Independent Registered Public Accounting Firm for our Fiscal Year Ending December 31, 2021
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A majority of the votes entitled to vote thereon and present at the Annual Meeting
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Approval of the Company’s 2021 Omnibus Equity Incentive Plan (the “2021 Plan”)
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A majority of the votes entitled to vote thereon and present at the Annual Meeting
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Approval of an amendment to the Company’s Certificate of Incorporation, as amended, to increase the number of authorized shares of common stock to 240,000,000 shares from 120,000,000 shares
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The affirmative vote of the holders of a majority of the outstanding shares of our common stock
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Approval of the Company’s executive compensation, referred to as “Say-on-Pay”
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A majority of the votes entitled to vote thereon and present at the Annual Meeting
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Preference of the frequency of a vote on approval of the Company’s executive compensation, referred to as “Say-on-Frequency”
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The voting frequency option that receives the highest number of votes cast by stockholders will be deemed the frequency for the advisory vote on executive compensation that has been selected by stockholders.
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What Are the Voting Procedures?
In voting by proxy with regard
to the election of directors, you may vote in favor of all nominees, withhold your votes as to all nominees, or withhold your votes as
to specific nominees. With regard to other proposals, you may vote in favor of or against the proposal, or you may abstain from voting
on the proposal. With regard to the “Say-on-Frequency” proposal, you may vote “One Year,” “Two Years,”
or Three Years.” You should specify your respective choices on the accompanying proxy card or your vote instruction form.
Is My Proxy Revocable?
You may revoke your proxy
and reclaim your right to vote at any time before your proxy is voted by giving written notice to the Secretary of Hepion, by delivering
a properly completed, later-dated proxy card or vote instruction form or by voting in person at the Annual Meeting. All written notices
of revocation and other communications with respect to revocations of proxies should be addressed to: 399 Thornall Street, First Floor,
Edison, NJ 08837, Attention: Secretary, or by facsimile at 732-902-4100. Your most current proxy card or Internet proxy
is the one that will be counted.
Who is Paying for the Expenses Involved in
Preparing and Mailing this Proxy Statement?
All
of the expenses involved in preparing, assembling and mailing these proxy materials and all costs of soliciting proxies will be paid by
us. In addition to the solicitation by mail, proxies may be solicited by our officers and other employees by telephone or in person. Such
persons will receive no compensation for their services other than their regular salaries. Arrangements will also be made with brokerage
houses and other custodians, nominees and fiduciaries to forward solicitation materials to the beneficial owners of the shares held of
record by such persons, and we may reimburse such persons for reasonable out of pocket expenses incurred by them in forwarding solicitation
materials. We have retained Kingsdale Advisors as our strategic shareholder advisor and proxy solicitation agent in connection
with the solicitation of proxies for the Meeting. If you have any questions or require any assistance with completing your proxy, please
contact Kingsdale Advisors by telephone (toll-free within North America) at 1-800-749-9052 or (call collect outside North America) at
416-867-2272 or by email at contactus@kingsdaleadvisors.com.
Do I Have Dissenters’ Rights of Appraisal?
Our stockholders do not have
appraisal rights under Delaware law or under our governing documents with respect to the matters to be voted upon at the Annual Meeting.
How can I Find out the Results of the Voting
at the Annual Meeting?
Preliminary voting results
will be announced at the Annual Meeting. In addition, final voting results will be disclosed in a Current Report on Form 8-K that
we expect to file with the SEC within four business days after the Annual Meeting. If final voting results are not available to us in
time to file a Form 8-K with the SEC within four business days after the Annual Meeting, we intend to file a Form 8-K to
publish preliminary results and, within four business days after the final results are known to us, file an additional Form 8-K to
publish the final results.
When are Stockholder Proposals Due for the 2021
Annual Meeting?
Any appropriate proposal submitted
by a stockholder and intended to be presented at the 2022 Annual Meeting of Stockholders (the “2022 Annual Meeting”)
must be submitted in writing to the Company’s Secretary at 399 Thornall Street, First Floor, Edison, NJ 08837 and received
no later than , to be includable in the Company’s proxy statement
and related proxy for the 2022 Annual Meeting. However, if the date of the 2022 Annual Meeting is convened more than 30 days before,
or delayed by more than 30 days after, , 2022, to be considered for inclusion in proxy materials for
our 2022 Annual Meeting, a stockholder proposal must be submitted in writing to the Company’s Secretary at 399 Thornall Street,
First Floor, Edison, NJ 08837, a reasonable time before we begin to print and send our proxy materials for the 2022 Annual Meeting. A
stockholder proposal will need to comply with the SEC regulations under Rule 14a-8 of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), regarding the inclusion of stockholder proposals in company-sponsored proxy materials. Although
the Board will consider stockholder proposals, we reserve the right to omit from our proxy statement, or to vote against, stockholder
proposals that we are not required to include under the Exchange Act, including Rule 14a-8.
Pursuant to our Bylaws, if
you wish to submit a proposal that is not to be included in the proxy materials for the 2021 Annual Meeting, your proposal must be submitted
in writing to our Secretary at 399 Thornall Street, First Floor, Edison, NJ 08837 no earlier than and
no later than , However, if the date of the 2022 Annual Meeting is convened more than 25 days before,
or delayed by more than 25 days after, , 2022, to be brought before our 2021 Annual Meeting, a stockholder
proposal must be submitted in writing to our Secretary at 399 Thornall Street, First Floor, Edison, NJ 08837, a reasonable time before
we begin to print and send our proxy materials for the 2022 Annual Meeting.
PROPOSAL 1
ELECTION OF DIRECTORS
At the Annual Meeting, the
stockholders will elect seven (7) directors to hold office until the 2022 Annual Meeting. Directors are elected by a plurality of
votes cast by stockholders. In the event the nominees are unable or unwilling to serve as directors at the time of the Annual Meeting,
the proxies will be voted for any substitute nominees designated by the present Board or the proxy holders to fill such vacancy, or for
the balance of the nominees named without nomination of a substitute, or the size of the Board will be reduced in accordance with the Bylaws of
the Company. The Board has no reason to believe that the persons named below will be unable or unwilling to serve as nominees or as directors
if elected.
Assuming a quorum is present,
the seven (7) nominees receiving the highest number of affirmative votes of shares entitled to be voted for such persons will be
elected as directors of the Company to serve for a one-year term. Unless marked otherwise, proxies received will be voted “FOR”
the election of the nominees named below. In the event that additional persons are nominated for election as directors, the proxy holders
intend to vote all proxies received by them in such a manner as will ensure the election of the nominees listed below, and, in such event,
the specific nominees to be voted for will be determined by the proxy holders.
Information with Respect to Director Nominees
Listed below are the current
directors who are nominated to hold office until their successors are elected and qualified, and their ages as of ,
2021.
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Name
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Age
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Gary S. Jacob, Ph.D.
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74
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Robert Foster, Ph.D.
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63
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John P. Brancaccio
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73
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Thomas Adams, Ph.D.
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78
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Timothy Block, Ph.D.
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66
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Arnold Lippa, Ph.D.
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74
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Petrus “Peter” Wijngaard, Ph.D.
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58
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Gary
S. Jacob, Ph.D. has served as our Chairman of the Board since March 19,
2014, and earlier served as our Chief Executive Officer from May 15, 2013 until March 19, 2014. Dr. Jacob has served as
Chief Executive Officer and a director of OKYO Pharma Ltd. since January 2021. From November 2018 until March 2020, Dr. Jacob
served as Chief Executive Officer of Immuron Limited, an Australian microbiome biopharmaceutical company. Previously, Dr. Jacob was
the Chairman of the Board, President and Chief Executive Officer of Synergy Pharmaceuticals Inc., a biopharmaceutical company, where
he held various positions from July 2008 to October 2018. On December 12, 2018, Synergy Pharmaceuticals Inc. filed a petition
for relief under Chapter 11 of the U.S. Bankruptcy Code. Dr. Jacob served as Chief Executive Officer of Callisto Pharmaceuticals, Inc.
from May 2003 until January 2013 and a director from October 2004 until January 2013. Dr. Jacob currently serves
as a director of Cardiff Oncology, Inc., a clinical-stage oncology therapeutics company. Dr. Jacob also serves as a director
of Virpax Pharmaceuticals, Inc. Dr. Jacob has over twenty-five years of experience in the pharmaceutical and biotechnology industries
across multiple disciplines including research & development, operations and business development. Prior to 1999, Dr. Jacob
served as a Monsanto Science Fellow, specializing in the field of glycobiology, and from 1997 to 1998 was Director of Functional Genomics,
Corporate Science & Technology, at Monsanto Company. Dr. Jacob also served from 1990 to 1997 as Director of Glycobiology
at G.D. Searle Pharmaceuticals Inc. During the period of 1986 to 1990, he was Manager of the G.D. Searle
Glycobiology Group at Oxford University, England. Dr. Jacob’s experience as a biotechnology company chief executive officer
provides him with valuable management and leadership abilities which the Board believes qualifies him to be a director of our Company.
Dr. Robert
T. Foster has served as Chief Executive Officer since October 3, 2018 and as our Chief Scientific Officer since
June 10, 2016. Prior to Hepion, he was Chief Executive Officer and Founder of Ciclofilin Pharmaceuticals Inc. from January 2014
until it merged with us on June 10, 2016. Prior to Ciclofilin Pharmaceuticals, he founded Isotechnika Pharma Inc. in 1993, where
he was Chairman and Chief Executive Officer for 21 years. Dr. Foster was founding Chief Executive Officer and later, Chief Scientific
Officer of Aurinia Pharmaceuticals, Inc., after Isotechnika acquired Aurinia. Dr. Foster is currently a Board member of Transcriptome
Sciences Inc. Dr. Foster’s experience as an executive at a biotechnology company and his background as a scientist provides
him with the leadership and management abilities which the Board believes qualifies him to be a director of our Company.
John
P. Brancaccio, a retired CPA, has served as a director of our Company since
May 15, 2013 and as a director of Synergy Pharmaceuticals, Inc. since July 2008. Mr. Brancaccio was the Chief Financial
Officer of Accelerated Technologies, Inc., an incubator for medical device companies from April 2004 until May 2017. From
May 2002 until March 2004, Mr. Brancaccio was the Chief Financial Officer of Memory Pharmaceuticals Corp., a biotechnology
company. From 2000 to 2002, Mr. Brancaccio was the Chief Financial Officer/Chief Operating Officer of Eline Group, an entertainment
and media company. Mr. Brancaccio is currently a director of Tamir Biotechnology, Inc. (formerly Alfacell Corporation) as well
as a director of Cardiff Oncology, Inc. and Rasna Therapeutics, Inc., a biotechnology company. Mr. Brancaccio’s chief
financial officer experience provides him with valuable financial and accounting expertise which the Board believes qualifies him to serve
as a director of our Company.
Thomas
Adams, Ph.D. has served as a director of our Company since September 2016.
Dr. Adams served as Chairman of the Board of Cardiff Oncology, Inc. from April 2009 until April 2020, Executive Chairman
from April 2020 to December 2020 and director since April 2009. Dr. Adams also served as Chief Executive Officer of
Cardiff from June 2018 until April 2020 and interim Chief Executive Officer from March 2016 until April 2016. Dr. Adams
has served as the Chairman of Clearbridge BioPhotonics, Inc., an imaging solutions company, since April 2013. From June 2005
through 2011, Dr. Adams served as a director of IRIS International, Inc., a diagnostics company, and has served as Chief Technology
Officer of IRIS since April 2006. Dr. Adams was the Head of Iris Molecular Diagnostics from 2006 until November 2012 and
has served as the President of Iris Personalized Medicine since 2011. In November 2012, IRIS was acquired by Danaher Corporation.
Dr. Adams served as Chairman and Chief Executive Officer of Leucadia Technologies, a privately held medical-device company, from
1998 to April 2006, when Leucadia was acquired by IRIS. In 1989, Dr. Adams founded Genta, Inc., a publicly held biotechnology
company in the field of antisense technology, and served as its Chief Executive Officer until 1997. Dr. Adams founded Gen-Probe, Inc.
in 1984 and served as its Chief Executive Officer and Chairman until its acquisition by Chugai Biopharmaceuticals, Inc. in 1989.
Dr. Adams has served as a director of Synergy Pharmaceuticals Inc., a biotechnology company, since July 2009. Dr. Adams
holds a Ph.D. in Biochemistry from the University of California, at Riverside. The Board believes that Dr. Adams’ executive
leadership, particularly in the diagnostic field, and the extensive healthcare expertise he has developed qualifies Dr. Adams to
serve as a director of our Company.
Dr. Timothy
Block has served as a director of our Company since November 26, 2013.
Dr. Block is Professor of Microbiology and Immunology, Drexel University College of Medicine and Director of its Drexel Institute
for Biotechnology and Virology Research, and is also the Co-founder and President of the Hepatitis B Foundation (HBF) and its Baruch S.
Blumberg Institute (formerly called the Institute for Hepatitis and Virus Research). Dr. Block is also President and CEO of the Pennsylvania
Biotechnology Center. Dr. Block has been a member of medical school faculties as a professional researcher for more than 28 years,
publishing more than 180 papers, 12 U.S. patents, and since 2006, has led or “co-led” more than $50 million in research
funding. Honors include an honorary Medical Doctorate (Bulgarian Academy of Medicine); the Lifetime Achievement Award from the Centrals
Bucks Chamber of Commerce; named one of the regions 100 Most Outstanding People of the Century by the Daily Intelligencer; Distinguished
Service Recognition from the National Cancer Institute’s Early Detection Research Network; and a Special Citation from the U.S.
House of Representatives in recognition of “outstanding achievements.” Dr. Block has given frequent testimony to the
U.S. Congress and State legislatures; has served on U.S. FDA and numerous NIH panels as well as commercial boards including the Bristol
Myers Squibb Entecavir Advisory Board. In 2009, Dr. Block was named an elected Fellow of the American Association for the Advancement
of Science (AAAS). Dr. Block’s experience and expertise in the medical field with respect to Hepatitis B qualifies him to serve
as a director of our Company.
Arnold
Lippa, Ph.D. has served as a director of our company since December 3,
2015. Dr. Lippa has been Executive Chairman of the Board of RespireRx Pharmaceuticals Inc., since March 2013, and was appointed
Chief Scientific Officer in August 2015. Previously, he served as Chief Executive Officer and President. He is also Chairman of the
Board of Xintria Pharmaceutical Corporation, which he co-founded in 2006. Dr. Lippa is a Managing Member and founder of T Morgen
Capital LLC, which is an investment and management company specializing in the creation and management of biomedical companies. Since
2005, T Morgen Capital has been a significant equity owner and a managing member of Aurora Capital LLC, a life science focused FINRA
member firm, where Dr. Lippa represents T Morgen Capital as a Manager. In 2004, Dr. Lippa co-founded and currently
is representing T Morgen Capital, a Managing Member, as a Manager of Atypical BioCapital Management LLC and Atypical BioVentures
Fund LLC, a life science fund management company and fund, respectively, both of which are affiliates of Aurora Capital. Dr. Lippa
was a founder of DOV Pharmaceutical, Inc., and served as Chairman of the Board and Chief Executive Officer from its inception in
April 1995 until 2005. Prior to DOV, Dr. Lippa co-founded and co-managed a number of life sciences companies, including Praxis
Pharmaceuticals, Inc., which he co-founded and took public in 1985, serving as President and Chief Operating Officer from 1984
until 1987. Dr. Lippa’s experience as a biotechnology company executive and a financier qualifies him to be a director of our
Company.
Petrus
“Peter” Wijngaard, Ph.D. has served as a director of our company
since June 10, 2020. Dr. Wijngaard most recently served as Executive Vice President, Chief Development Officer at The Medicines
Company (“MDCO”), where he led the overall development and global medical affairs activities for hypercholesterolemia drug
candidate, inclisiran. Dr. Wijngaard was instrumental in Novartis’ US $9.7 billion acquisition of MDCO that was completed in
January 2020. Previously, Dr. Wijngaard led European Medical Affairs and Development at Viropharma Inc. (which was subsequently
acquired by Shire Pharmaceuticals in 2013 and is now part of The Takeda Pharmaceutical Company Limited) and held various positions at
Hoffmann-La Roche, including International Medical Manager and Lifecycle Leader for the transplantation portfolio, as well as managing
the Genentech alliance as Global Alliance Director. He served on the Board of Directors of Isotechnika Pharmaceuticals, Aurinia Pharmaceuticals
and Ciclofilin Pharmaceuticals, which was acquired by Hepion in 2016. As an author of more than 50 scientific articles, Dr. Wijngaard
has published extensively on transplant immunology and immunosuppression. He has a Ph.D. in Transplantation Immunology from Utrecht University,
the Netherlands.
Family Relationships and Other Arrangements
There are no family relationships
among our directors and executive officers. There are no arrangements or understandings between or among our executive officers and directors
pursuant to which any director or executive officer was or is to be selected as a director or executive officer.
Board Leadership Structure and Role in Risk Oversight
Risk is inherent with every
business, and how well a business manages risk can ultimately determine its success. Management is responsible for the day-to-day management
of the risks we face, while the Board, as a whole and through its committees, has responsibility for the oversight of risk management.
In its risk oversight role, the Board is responsible for satisfying itself that the risk management processes designed and implemented
by management are adequate and functioning as designed.
The Board believes that establishing
the right “tone at the top” and that full and open communication between executive management and the Board are essential
for effective risk management and oversight. Our CEO communicates frequently with members of the Board to discuss strategy and challenges
facing our company. Senior management usually attends our regular quarterly Board meetings and is available to address any questions or
concerns raised by the Board on risk management-related and any other matters. Each quarter, the Board receives presentations from senior
management on matters involving our key areas of operations.
Director Independence
Our Board has determined that
a majority of the Board consists of members who are currently “independent” as that term is defined under Nasdaq Listing Rule 5605(a)(2).
The Board considers Drs. Jacob, Adams, Block, Lippa, Wijngaard and Mr. Brancaccio to be “independent.” Dr. Foster,
our Chief Executive Officer, is not considered to be “independent” as defined by Nasdaq Listing Rule 5605(a)(2).
Board of Directors Meetings
During the year ended December 31,
2020, our Board met 8 times, including telephonic meetings, the Audit Committee met 4 times, the Compensation Committee met 5 time and
the Corporate Governance/Nominating Committee met 3 time. All directors attended 100% of the aggregate number of meetings of the Board,
all of the Audit Committee members attended 100% of the Audit Committee meetings, all of the Compensation Committee members attended
100% of the Compensation Committee meeting, and all of the Corporate Governance/Nominating Committee members attended 100% of the Corporate
Governance/Nominating Committee meeting.
Information Regarding Board Committees
Our Board has established
standing Audit, Compensation and Corporate Governance/Nominating Committees to devote attention to specific subjects and to assist it
in the discharge of its responsibilities. All committees operate under a written charter adopted by our Board, each of which is available
on our Internet website at www.hepionpharma.com/investors/governance.
Audit Committee
The Audit Committee’s
responsibilities include: (i) reviewing the independence, qualifications, services, fees, and performance of the independent registered
public accountants, (ii) appointing, replacing and discharging the independent registered public accounting firm, (iii) pre-approving
the professional services provided by the independent registered public accounting firm, (iv) reviewing the scope of the annual audit
and reports and recommendations submitted by the independent registered public accounting firm, and (v) reviewing our financial reporting
and accounting policies, including any significant changes, with management and the independent registered public accounting firm. The
Audit Committee also prepares the Audit Committee report that is required pursuant to the rules of the SEC.
The Audit Committee currently
consists of Mr. Brancaccio, chairman, Dr. Lippa and Dr. Adams. We believe that each of Mr. Brancaccio, Dr. Lippa
and Dr. Adams is “independent” as that term is defined under applicable SEC and Nasdaq rules. Mr. Brancaccio is
our audit committee financial expert. The Board has adopted a written charter setting forth the authority and responsibilities of the
Audit Committee. The charter is available on our website at www.hepionpharma.com.
Compensation Committee
The Compensation Committee
has responsibility for assisting the Board in, among other things, (i) evaluating and making recommendations regarding the compensation
of the executive officers and directors of our company, (ii) assuring that the executive officers are compensated effectively in
a manner consistent with our stated compensation strategy, (iii) producing an annual report on executive compensation in accordance
with the rules and regulations promulgated by the SEC, (iv) periodically evaluating the terms and administration of our
incentive plans and benefit programs and (v) monitoring of compliance with the legal prohibition on loans to our directors and executive
officers.
The Compensation Committee
currently consists of Dr. Wijngaard, chairman, Mr. Brancaccio, Dr. Lippa and Dr. Adams. We believe that all of
the members are “independent” under the current listing standards of Nasdaq. The Board has adopted a written charter setting
forth the authority and responsibilities of the Compensation Committee which is available on our website at www.hepionpharma.com.
Compensation Committee Interlocks and Insider
Participation
None of the members of our
compensation committee was, during the year ended December 31, 2019, an officer or employee of ours, was formerly an officer of ours
or had any relationship requiring disclosure by us under Item 404 of Regulation S-K. No interlocking relationship as described in
Item 407(e)(4) of Regulation S-K exists between any of our executive officers or Compensation Committee members, on the one
hand, and the executive officers or compensation committee members of any other entity, on the other hand, nor has any such interlocking
relationship existed in the past.
Corporate Governance/Nominating Committee
The Corporate Governance/Nominating
Committee has responsibility for assisting the Board in, among other things, (i) effecting board organization, membership and function
including identifying qualified board nominees, (ii) effecting the organization, membership and function of board committees including
composition and recommendation of qualified candidates, (iii) establishment of and subsequent periodic evaluation of successor planning
for the chief executive officer and other executive officers, (iv) development and evaluation of criteria for board membership such
as overall qualifications, term limits, age limits and independence and (v) oversight of compliance with the Corporate Governance
Guidelines. The Corporate Governance/Nominating Committee shall identify and evaluate the qualifications of all candidates for nomination
for election as directors. Potential nominees are identified by the Board based on the criteria, skills and qualifications that have been
recognized by the Corporate Governance/Nominating Committee. While our nomination and corporate governance policy does not prescribe specific
diversity standards, the Corporate Governance/Nominating Committee and its independent members seek to identify nominees that have a variety
of perspectives, professional experience, education, differences in viewpoints and skills, and personal qualities that will result in
a well-rounded Board.
The Corporate Governance/Nominating
Committee currently consists of Dr. Block, chairman, Dr. Lippa, and Mr. Brancaccio. We believe that all of the members
are “independent” under the current listing standards of Nasdaq. Our Board has adopted a written charter setting forth the
authority and responsibilities of the Corporate Governance/Nominating Committee which is available on our website at www.hepionpharma.com.
Communications with our Board of Directors
Stockholders seeking to communicate
with our Board should submit their written comments to our Chief Executive Officer, Dr. Robert Foster, at Hepion Pharmaceuticals, Inc., 399
Thornall Street, First Floor, Edison, NJ 08837. Dr. Foster will forward such communications to each member of our Board; provided
that, if in the opinion of Dr. Foster it would be inappropriate to send a particular stockholder communication to a specific director,
such communication will only be sent to the remaining directors (subject to the remaining directors concurring with such opinion).
Code of Business Conduct and Ethics
We have adopted a Code of
Business Conduct and Ethics to ensure that our business is conducted in a consistently legal and ethical manner. All of our employees,
including our executive officers and directors, are required to comply with our Code of Business Conduct and Ethics.
The full text of the Code
of Business Conduct and Ethics is posted on our website at http://www.hepionpharma.com/investors/governance. Any waiver of the Code of
Business Conduct and Ethics for directors or executive officers must be approved by our Audit Committee. We will disclose future amendments
to our Code of Business Conduct and Ethics, or waivers from our Code of Business Conduct and Ethics for our principal executive officer,
principal financial officer, principal accounting officer or controller, or persons performing similar functions, on our website within
four business days following the date of the amendment or waiver. In addition, we will disclose any waiver from our Code of Business Conduct
and Ethics for our other executive officers and our directors on our website. A copy of our Code of Business Conduct and Ethics will also
be provided free of charge upon request to: Secretary, Hepion Pharmaceuticals, Inc. 399 Thornall Street, First Floor, Edison,
NJ 08837.
Board Recommendation
The Board unanimously recommends
a vote “FOR” each of the Board’s nominees in this Proposal 1.
PROPOSAL 2
RATIFICATION OF THE APPOINTMENT OF OUR INDEPENDENT
REGISTERED PUBLIC
ACCOUNTING FIRM FOR FISCAL YEAR ENDING DECEMBER 31, 2021
The Audit Committee has selected
BDO USA, LLP (“BDO”), as the Company’s independent registered public accountants for the fiscal year ending December 31,
2021 and has further directed that management submit the selection of independent registered public accountants for ratification by the
stockholders at the Annual Meeting. A representative of BDO is expected to be present at the Annual Meeting
Stockholder ratification of
the selection of BDO as our independent registered public accountants is not required by Delaware law, the Company’s certificate
of incorporation, or the Company’s bylaws. However, the Audit Committee is submitting the selection of BDO to the stockholders for
ratification as a matter of good corporate practice. If the stockholders fail to ratify the selection, the Audit Committee will reconsider
whether to retain that firm. Even if the selection is ratified, the Audit Committee in its discretion may direct the appointment of different
independent registered public accountants at any time during the year if the Audit Committee determines that such a change would be in
the best interests of the Company and its stockholders.
Principal Accountant Fees and Services
The aggregate fees billed
to the Company by BDO, the Company’s independent registered public accounting firm, for the indicated services for each of the last
two (2) fiscal years were as follows:
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2020
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2019
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Audit fees (1)
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$
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422,865
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$
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415,660
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(1)
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Audit fees consist of fees for professional services performed by BDO for the audit and review of our financial statements, preparation and filing of our registration statements, including issuance of comfort letters. There were no Audit Related, Tax, or Other fees for either period presented.
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Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services
of Independent Auditors
Consistent with SEC policies
and guidelines regarding audit independence, the Audit Committee is responsible for the pre-approval of all audit and permissible non-audit services
provided by our independent registered public accounting firm on a case-by-case basis. Our Audit Committee has established a
policy regarding approval of all audit and permissible non-audit services provided by our principal accountants. Our Audit Committee pre-approves these
services by category and service. Our Audit Committee has pre-approved all of the services provided by our independent registered
public accounting firm.
Vote Required
The selection of our independent
registered public accounting firm is not required to be submitted to a vote of our stockholders for ratification. However, we are submitting
this matter to the stockholders as a matter of good corporate governance. Even if the appointment is ratified, the Board may, in its discretion,
appoint a different independent registered public accounting firm at any time during the year if it determines that such a change would
be in the best interests of us and our stockholders. If the appointment is not ratified, the Board will reconsider whether or not to retain
BDO.
The affirmative vote of a
majority of the shares (by voting power) present in person at the Annual Meeting or represented by proxy and entitled to vote at the Annual
Meeting is required to approve the ratification of the appointment of BDO USA, LLP as our independent registered public accounting firm
for the fiscal year ending December 31, 2021.
Board Recommendation
The Board unanimously recommends
a vote “FOR” Proposal 2.
AUDIT COMMITTEE REPORT
The following Audit Committee
Report shall not be deemed to be “soliciting material,” deemed “filed” with the SEC or subject to the liabilities
of Section 18 of the Exchange Act. Notwithstanding anything to the contrary set forth in any of the Company’s previous filings
under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act that might incorporate by reference
future filings, including this Proxy Statement, in whole or in part, the following Audit Committee Report shall not be incorporated by
reference into any such filings.
The Audit Committee is comprised
of three independent directors (as defined under NASDAQ Listing Rule 5605(a)(2)). The Audit Committee operates under a written charter,
which is available on our website at https://hepionpharma.com/investors/governance/.
We have reviewed and discussed
with management and the Company’s independent registered public accounting firm, the Company’s audited financial statements
as of and for the fiscal year ended December 31, 2020.
We have discussed with BDO
USA, LLP, the Company’s independent registered public accounting firm, the matters as required to be discussed by the Public Company
Accounting Oversight Board (the “PCAOB”) Auditing Standard No. 1301 (Communications with Audit Committees).
We have received the written
disclosures and the letter from BDO USA, LLP required by applicable requirements of the PCAOB regarding BDO USA, LLP’s communications
with the Audit Committee concerning independence, and have discussed with BDO USA, LLP, their independence from management and the Company.
Based on the review and discussions
referred to above, we recommended to the Board that the financial statements referred to above be included in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2020 for filing with the Securities and Exchange Commission.
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Submitted by the Audit Committee
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John Brancaccio, Chairman
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Dr. Arnold Lippa
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Dr. Thomas Adams
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PROPOSAL 3
APPROVAL OF THE HEPION
PHARMACEUTICALS 2021 OMNIBUS EQUITY INCENTIVE PLAN
Reasons for Adoption of the 2021 Equity Incentive Plan
On August 20, 2021, our
Board of Directors adopted the Hepion Pharmaceuticals, Inc. 2021 Omnibus Equity Incentive Plan (the “2021 Plan”), an
omnibus equity incentive plan pursuant to which we may grant equity and cash and equity-linked awards to certain management, directors,
consultants and others, subject to obtaining stockholder approval thereof. Our Board of Directors recommends adoption of the 2021 Plan
in order to promote our success by providing a means to offer incentives and to attract, motivate, retain and reward persons eligible
to participate in the 2021 Plan. Accordingly, the Board of Directors voted unanimously to adopt the 2021 Plan.
The 2021 Plan is intended to replace our 2013
Option Plan, as amended.
Shares Available
The
maximum number of shares of common stock reserved and available for issuance under the 2021 Plan will be equal to the sum of (i) 7,500,000
shares of common stock; (ii) the number of shares of common stock reserved, but unissued under the 2013 Plan, and (iii) the
number of shares of common stock underlying forfeited awards under the 2013 Plan; provided that shares of common stock issued under the
2021 Plan with respect to an Exempt Award will not count against the share limit. We
use the term “Exempt Award” to mean (i) an award granted in assumption of, or in substitution for, outstanding awards
previously granted by another business entity acquired by us or any of our subsidiaries or with which we or any of our subsidiaries merge,
or (ii) an award that a participant purchases at fair market value.
Administration
The 2021 Plan is administered
by the Board or by one or more committees of directors appointed by the Board (the “Administrator”). The Board may
delegate different levels of authority to different committees with administrative and grant authority under the 2021 Plan. Any committee
delegated administrative authority under the 2021 Plan may further delegate its authority under the Plan to another committee of directors,
and any such delegate shall be deemed to be an Administrator of the 2021 Plan. The Administrator comprised solely of directors may also
delegate, to the extent permitted by Section 157 of the Delaware General Corporation Law and any other applicable law, to one or
more of our officers, its powers under this Plan (a) to designate Eligible Persons who will receive grants of awards under this Plan,
and (b) to determine the number of shares subject to, and the other terms and conditions of, such awards. It is anticipated that
the Administrator (either generally or with respect to specific transactions) will be constituted so as to comply, as necessary or desirable,
with the requirements of Section 162(m) of Internal Revenue Code of 1986, as amended (the “Code”), and Rule 16b-3
promulgated under the Exchange Act.
Eligibility
Awards may be granted pursuant
to the 2021 Plan only to persons who are eligible persons. Under the 2021 Plan, “Eligible Person” means any person who is
either: (a) an officer (whether or not a director) or employee of the Company or one of its subsidiaries; (b) a director of
the Company or one of its subsidiaries; or (c) a consultant who renders bona fide services to the Company or one of its subsidiaries;
provided, however, that Incentive Stock Options (“ISOs”) may be granted only to employees.
Awards
The 2021 Plan permits the
grant of: (a) stock options, which may be intended as ISOs or as nonqualified stock options (options not meeting the requirements
to qualify as ISOs); (b) stock appreciation rights (“SARs”); (c) restricted stock; (d) restricted stock
units; (e) cash incentive awards; or (f) other awards, including: (i) stock bonuses, performance stock, performance units,
dividend equivalents, or similar rights to purchase or acquire shares, whether at a fixed or variable price or ratio related to the common
stock, upon the passage of time, the occurrence of one or more events, or the satisfaction of performance criteria or other conditions,
or any combination thereof; or (ii) any similar securities with a value derived from the value of or related to the common stock
and/or returns thereon.
Consideration for Awards
The purchase price for any
award granted under the 2021 Plan or the common stock to be delivered pursuant to any such award, as applicable, may be paid by means
of any lawful consideration as determined by the Administrator, including, without limitation, one or a combination of the following methods:
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•
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services rendered by the recipient of such award;
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•
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cash, check payable to the order of the Company, or electronic
funds transfer;
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•
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notice and third party payment in such manner as may be authorized
by the Administrator;
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•
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the delivery of previously owned and fully vested shares of
common stock;
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•
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by a reduction in the number of shares otherwise deliverable
pursuant to the award; or
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•
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subject to such procedures as the Administrator may adopt, pursuant
to a “cashless exercise” with a third party who provides
financing for the purposes of (or who otherwise facilitates) the purchase or
exercise of awards.
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New Plan Benefits
The following table sets forth
grants of stock options approved by our Board on May 18, 2021, that are contingent upon shareholder approval of this Proposal 3.
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Name and Position
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Dollar Value
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Number of Units(1)
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Robert Foster
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(2)
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1,900,000
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John Cavan
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(2)
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1,200,000
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Non-Executive Directors
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(2)
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1,250,000
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Non-Executive Officer Employees
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(2)
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1,965,000
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(1) Awards
granted under the Plan to our executive officers are discretionary and are not subject to set benefits or amounts under the terms of the
2021 Plan. Accordingly, except as noted below, the benefits or amounts that will be received by or allocated to our executive officers
under the 2021 Plan in the future are not determinable. On May 18, 2021, the Compensation Committee of our Board of Directors approved
the grant of stock options under the 2013 Plan to certain of our current executive officers, directors and employees, contingent upon
shareholder approval. The 2021 Plan provides that the option awards granted by us on May 18, 2021 pursuant to the 2013 Plan shall instead be governed by the
2021 Plan. The number of units in the table above is the number of shares of our common stock subject to
each option that is contingent upon shareholder approval of this Proposal 3.
(2) Each option was granted with an exercise
price per share of $1.70. The actual value realized upon exercise of an option will depend on the excess, if any, of the stock price over
the exercise price on the date of exercise.
Certain Federal
Tax Consequences
The following summary of the
federal income tax consequences of the 2021 Plan transactions is based upon federal income tax laws in effect as of August __, 2021.
This summary does not purport to be complete, and does not discuss state, local or non-U.S. tax consequences.
Nonqualified
Stock Options. The grant of a nonqualified stock option under the 2021 Plan will not result in any federal income
tax consequences to the participant or to the Company. Upon exercise of a nonqualified stock option, the participant will recognize ordinary
compensation income equal to the excess of the fair market value of the shares of Common Stock at the time of exercise over the option
exercise price. If the participant is an employee, this income is subject to withholding for federal income and employment tax purposes.
The Company is entitled to an income tax deduction in the amount of the income recognized by the participant, subject to possible limitations
imposed by the Code, including Section 162(m) thereof. Any gain or loss on the participant’s subsequent disposition of
the shares will be treated as long-term or short-term capital gain or loss, depending on the sales proceeds received and whether the shares
are held for more than one year following exercise. The Company does not receive a tax deduction for any subsequent capital gain.
Incentive
Options. The grant of an ISO under the 2021 Plan will not result in any federal income tax consequences to the participant
or to the Company. A participant recognizes no federal taxable income upon exercising an ISO (subject to the alternative minimum tax rules discussed
below), and the Company receives no deduction at the time of exercise. In the event of a disposition of stock acquired upon exercise of
an ISO, the tax consequences depend upon how long the participant has held the shares. If the participant does not dispose of the shares
within two years after the ISO was granted, nor within one year after the ISO was exercised, the participant will recognize a long-term
capital gain (or loss) equal to the difference between the sale price of the shares and the exercise price. The Company is not entitled
to any deduction under these circumstances.
If the participant fails to
satisfy either of the foregoing holding periods (referred to as a “disqualifying disposition”), he or she will recognize ordinary
compensation income in the year of the disposition. The amount of ordinary compensation income generally is the lesser of (i) the
difference between the amount realized on the disposition and the exercise price or (ii) the difference between the fair market value
of the stock at the time of exercise and the exercise price. Such amount is not subject to withholding for federal income and employment
tax purposes, even if the participant is an employee of the Company. Any gain in excess of the amount taxed as ordinary income will generally
be treated as a short-term capital gain. The Company, in the year of the disqualifying disposition, is entitled to a deduction equal to
the amount of ordinary compensation income recognized by the participant, subject to possible limitations imposed by the Code, including
Section 162(m) thereof.
The “spread” under
an ISO — i.e., the difference between the fair market value of the shares at exercise and the exercise price — is classified
as an item of adjustment in the year of exercise for purposes of the alternative minimum tax. If a participant’s alternative minimum
tax liability exceeds such participant’s regular income tax liability, the participant will owe the alternative minimum tax liability.
Restricted
Stock. Restricted stock is generally taxable to the participant as ordinary compensation income on the date that the
restrictions lapse (i.e. the date that the stock vests), in an amount equal to the excess of the fair market value of the shares on such
date over the amount paid for such stock (if any). If the participant is an employee, this income is subject to withholding for federal
income and employment tax purposes. The Company is entitled to an income tax deduction in the amount of the ordinary income recognized
by the participant, subject to possible limitations imposed by the Code, including Section 162(m) thereof. Any gain or loss
on the participant’s subsequent disposition of the shares will be treated as long-term or short-term capital gain or loss treatment
depending on the sales price and how long the stock has been held since the restrictions lapsed. The Company does not receive a tax deduction
for any subsequent gain.
Participants receiving restricted
stock awards may make an election under Section 83(b) of the Code (“Section 83(b) Election”) to
recognize as ordinary compensation income in the year that such restricted stock is granted, the amount equal to the excess of the fair
market value on the date of the issuance of the stock over the amount paid for such stock. If such an election is made, the recipient
recognizes no further amounts of compensation income upon the lapse of any restrictions and any gain or loss on subsequent disposition
will be long-term or short-term capital gain or loss to the recipient. The Section 83(b) Election must be made within 30 days
from the time the restricted stock is issued.
Other
Awards. Other awards (such as restricted stock units) are generally treated as ordinary compensation income as and
when common stock or cash are paid to the participant upon vesting or settlement of such awards. If the participant is an employee, this
income is subject to withholding for income and employment tax purposes. The Company is generally entitled to an income tax deduction
equal to the amount of ordinary income recognized by the recipient, subject to possible limitations imposed by the Code, including Section 162(m) thereof.
Section 162(m) Limitation. In
general, under Section 162(m), income tax deductions of publicly-held corporations may be limited to the extent total compensation
(including base salary, annual bonus, stock option exercises and non-qualified benefits paid) for certain executive officers exceeds $1
million (less the amount of any “excess parachute payments” as defined in Section 280G of the Code) in any one year.
Prior to the Tax Cuts and Jobs Act of 2017 (the “TCJA”), covered employees generally consisted of our Chief Executive Officer
and each of the next three highest compensated officers serving at the end of the taxable year other than our Chief Financial Officer,
and compensation that qualified as “performance-based” under Section 162(m) was exempt from this $1 million deduction
limitation. As part of the TCJA, the ability to rely on this exemption was, with certain limited exceptions, eliminated; in addition,
the definition of covered employees was expanded to generally include all named executive officers. Certain awards under the 2014 Plan
granted prior to November 2, 2017 may be grandfathered from the changes made by the TCJA under certain limited transition relief,
however, for grants after that date and any grants which are not grandfathered, we will no longer be able to take a deduction for any
compensation in excess of $1 million that is paid to a covered employee. There is no guarantee that we will be able to take a deduction
for any compensation in excess of $1 million that is paid to a covered employee under the 2014 Plan.
Vote Required
The affirmative vote of a
majority of the shares (by voting power) present or represented by proxy and entitled to vote at the Annual Meeting will be required to
approve the 2021 Plan.
Board Recommendation
The Board unanimously recommends
a vote “FOR” Proposal 3.
PROPOSAL 4:
INCREASE IN THE NUMBER OF SHARES OF AUTHORIZED
COMMON STOCK
Introduction
Our Certificate of Incorporation,
as amended, currently authorizes the issuance of up to 120,000,000 shares of common stock and 20,000,000 shares of “blank check”
preferred stock. Our Board has approved an amendment to increase the number of authorized common stock from 120,000,000 shares to 240,000,000
shares (the “Increase in Authorized Common Shares Amendment”).
The proposed form of amendment
to our Certificate of Incorporation to effect the Increase in Authorized Common Shares Amendment is attached as Appendix B to this
Proxy Statement.
Reasons for the Increase in Authorized Common Shares Amendment
Our Board determined that
the Increase in Authorized Common Shares Amendment is in the best interests of the Company and unanimously recommends approval by stockholders.
The Board believes that the availability of additional authorized shares of common stock is required for several reasons including, but
not limited to, the additional flexibility to issue common stock for a variety of general corporate purposes as the Board may determine
to be desirable including, without limitation, future financings, investment opportunities, acquisitions, or other distributions and stock
splits (including splits effected through the declaration of stock dividends).
As of the Record Date, there
were shares of our common stock issued out of the 120,000,000 shares of common stock that we are authorized
to issue. In addition, as of the Record Date, an aggregate of approximately shares of common stock have
been reserved for future issuance, including: (i) shares reserved for
issuance under our 2013 Equity Incentive Plan; (ii) shares reserved for issuance pursuant to our Series A Preferred Stock;
(iii) shares reserved for issuance pursuant to our Series C Preferred Stock; and (iv) shares
of common stock reserved for issuance upon the exercise of outstanding warrants.
Thus, we have approximately shares
of common shares available for future issuance at this time. Our working capital requirements are significant and may require us to raise
additional capital through additional equity financings in the future.
If we issue additional shares
of common stock or other securities convertible into shares of our common stock in the future, it could dilute the voting rights of existing
stockholders and could also dilute earnings per share and book value per share of existing stockholders. The increase in authorized number
of common stock could also discourage or hinder efforts by other parties to obtain control of the Company, thereby having an anti-takeover
effect. The increase in authorized number of common stock is not being proposed in response to any known threat to acquire control of
the Company.
Effects of the Increase in Authorized Common Shares Amendment
Following the filing of the
Increase in Authorized Common Shares Amendment with the Secretary of State of the State of Delaware, we will have the authority to issue
up to __ shares of common stock. These shares may be issued without stockholder approval at any time, in the sole discretion of our
Board. The authorized and unissued shares may be issued for cash or for any other purpose that is deemed in the best interests of the
Company.
In addition, the Increase
in Authorized Common Shares Amendment could have a number of effects on the Company’s stockholders depending upon the exact nature
and circumstances of any actual issuances of authorized but unissued shares. If we issue additional shares of common stock or other securities
convertible into shares of our common stock in the future, it could dilute the voting rights of existing stockholders and could also dilute
earnings per share and book value per share of existing stockholders. The increase in authorized number of common stock could also discourage
or hinder efforts by other parties to obtain control of the Company, thereby having an anti-takeover effect. The increase in authorized
number of common stock is not being proposed in response to any known threat to acquire control of the Company.
The Increase in Authorized
Common Shares Amendment will not change the number of shares of common stock issued and outstanding, nor will it have any immediate dilutive
effect or change the rights of current holders of the our common stock.
Procedure for Implementing the Amendment
The Increase in Authorized
Common Shares Amendment will become effective upon the filing or such later time as specified in the filing with the Secretary of State
of the State of Delaware. The form of the Increase in Authorized Common Shares Amendment is attached hereto as Appendix B. The
exact timing of the filing of the Increased in Authorized Amendment will be determined by our Board based on its evaluation as to when
such action will be the most advantageous to the Company and our stockholders.
Interests of Officers and Directors in this Proposal
Our officers and directors
do not have any substantial interest, direct or indirect, in in this proposal.
Required Vote of Stockholders
The affirmative vote of the
holders of a majority of the outstanding shares of our common stock is required to approve this proposal.
Board Recommendation
The Board unanimously recommends
a vote “FOR” Proposal 4.
PROPOSAL
5:
APPROVAL OF THE COMPENSATION OF THE NAMED EXECUTIVE
OFFICERS
(“SAY-ON-PAY”)
Under the Dodd-Frank
Wall Street Reform and Consumer Protection Act of 2010 (the “Dodd-Frank Act”), our stockholders are entitled to vote
at the Annual Meeting to provide advisory approval of the compensation of our named executive officers as disclosed in this proxy statement
pursuant to the compensation disclosure rules of the SEC. Pursuant to the Dodd-Frank Act, the stockholder vote on executive
compensation is an advisory vote only, and it is not binding on us or our Board.
Although the vote is non-binding,
our Compensation Committee and Board value the opinions of the stockholders and will consider the outcome of the vote when making future
compensation decisions. As described more fully in the Executive Compensation section of this proxy statement, our executive compensation
program is designed to attract, retain and motivate individuals with superior ability, experience and leadership capability to deliver
on our annual and long-term business objectives necessary to create stockholder value. We urge stockholders to read the Executive Compensation
section of this proxy statement, which describes in detail how our executive compensation policies and procedures operate and are intended
to operate in the future. The Compensation Committee and the Board believe that our executive compensation program fulfills these goals
and is reasonable, competitive and aligned with our performance and the performance of our executives.
We are asking our stockholders
to indicate their support for our named executive officer compensation as described in this proxy statement. This proposal, commonly known
as a “say-on-pay” proposal, gives our stockholders the opportunity to express their views on our named executive officers’
compensation. This vote is not intended to address any specific item of compensation, but rather the overall compensation of our named
executive officers and the philosophy, policies and practices described in this proxy statement. Accordingly, we ask that our stockholders
vote “FOR” the following resolution:
“RESOLVED,
that Hepion Pharmaceuticals, Inc.’s stockholders approve, on an advisory basis, the compensation of the named executive officers,
as disclosed in Hepion Pharmaceuticals, Inc.’s proxy statement for the 2021 Annual Meeting of Stockholders, pursuant to the
compensation disclosure rules of the SEC, including the Executive Compensation section, the Summary Compensation Table and the other
related tables and disclosure.”
Interests of Officers and Directors in this
Proposal
As this vote relates to the
executive compensation of our named executive officers, such officers have an interest in the approval of this Proposal. This is an advisory
vote and is not binding. The outcome of this advisory vote will not overrule any decision by the Compensation Committee or our Board.
Required Vote of Stockholders
The affirmative vote of a
majority of the votes cast at the Annual Meeting is required to approve Proposal 5.
Board Recommendation
The Board unanimously recommends
a vote “FOR” Proposal 5.
PROPOSAL 6:
FREQUENCY OF “SAY-ON-PAY”
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 advisory votes on the compensation of our named executive officers, which we refer to as “say-on-frequency.”
By voting with respect to this Proposal 6, stockholders may indicate whether they would prefer that we conduct future “say-on-pay”
votes once every year, every two years, or every three years. Stockholders, if they wish, also may abstain from casting a vote on this
proposal.
After
careful consideration, our Board has determined that a say-on-pay vote on executive compensation once every three years is the best approach
for the Company, and therefore our Board recommends that you vote for a three-year interval between the say-on-pay votes.
Our
Board recognizes the importance of stockholder input on executive compensation and has determined that a say-on-pay vote every three years
will provide our stockholders with adequate input. Our Board believes that a three-year vote cycle gives our Board sufficient time to
thoughtfully consider the results of the advisory vote and implement any desired changes to our executive compensation policies and procedures,
and will provide investors sufficient time to evaluate the effectiveness of our executive compensation program as it relates to the business
outcomes of the Company. Finally, the three year interval will avoid the additional administrative burden on the Company of engaging in
annual votes on executive compensation.
As
with your vote on Proposal 5 above, your vote on this Proposal 6 is advisory, and therefore not binding on the Company, the Board or the
Compensation Committee, and the Board may decide that it is in the best interests of our stockholders and the Company to hold an advisory
vote on executive compensation more or less frequently than the option approved by our stockholders. However, our Board and our Compensation
Committee value the opinions of our stockholders and we will take our stockholders’ preferences into account in making determinations
regarding the frequency of the say-on-pay vote.
Interests of Officers and Directors in this Proposal
As this vote relates to the
executive compensation of our named executive officers, such officers have an interest in the approval of this Proposal. This is an advisory
vote and is not binding. The outcome of this advisory vote will not overrule any decision by the Compensation Committee or our Board.
Required Vote of Stockholders
The voting frequency option
that receives the highest number of votes cast by stockholders will be deemed the frequency for the advisory vote on executive compensation
that has been selected by stockholders.
Board Recommendation
The Board unanimously recommends a vote for “THREE
YEARS” on this Proposal 6.
EXECUTIVE OFFICERS
The
table below identifies and sets forth certain biographical and other information regarding our executive officers as of date of this proxy
statement. There are no family relationships among any of our executive officers or directors.
|
Name
|
|
Age
|
|
Positions
|
|
Robert Foster, Ph.D.
|
|
62
|
|
Chief Executive Officer, Director
|
|
John Cavan
|
|
62
|
|
Chief Financial Officer
|
See “Proposal No. 1—Election
of Directors” for biographical and other information regarding Dr. Foster.
John Cavan – Chief Financial
Officer
Mr. Cavan
has been our Chief Financial Officer since March 2016. Previously, Mr. Cavan was a consultant with The Pine Hill Group where
he was instrumental in completing several financial transactions, including initial public offerings, business combinations and strategic
transactions. Prior to his role with the Pine Hill Group, he served as Chief Accounting Officer at Stemline Therapeutics, Inc. Preceding
his role at Stemline, Mr. Cavan was Vice President and Chief Accounting Officer at Aegerion Pharmaceuticals, Inc. He has also
held financial positions within the healthcare industry at AlgoRx Pharmaceuticals, Inc. and Alpharma. Mr. Cavan served in a
variety of financial and operational positions early in his career during tenures with large multinational public companies, including
Sony, American Express, International Specialty Products (an Ashland Company) and Nestlé U.S.A. Mr. Cavan currently serves
on the Board of Directors of Vantage Health Systems. He holds a B.B.A in Accountancy from Iona College and an M.B.A. in Finance from Seton
Hall University.
EXECUTIVE COMPENSATION
Summary Compensation Table
The following table contains
compensation information for our Chief Executive Officer and certain other executives who were the most highly compensated executive officers
for the years ended December 31, 2020 and 2019.
|
|
|
|
|
|
|
|
|
|
|
Stock
In
|
|
|
|
|
|
Non-equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Bonus
|
|
|
Lieu
of Cash
|
|
|
Options
|
|
|
incentive
plan
|
|
|
|
|
|
|
|
|
Name
& Principal Position
|
|
Year
|
|
Salary
|
|
|
(1)
|
|
|
Bonus
|
|
|
granted(2)
|
|
|
compensation(1)(3)
|
|
|
Other
|
|
|
Total
|
|
|
Dr. Robert Foster.
|
|
December 2020
|
|
$
|
400,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
2,173,180
|
|
|
$
|
200,000
|
|
|
$
|
—
|
|
|
$
|
2,773,180
|
|
|
Chief
Executive Officer
|
|
December 2019
|
|
$
|
400,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
21,102
|
|
|
$
|
200,000
|
|
|
$
|
—
|
|
|
$
|
621,102
|
|
|
John Cavan.
|
|
December 2020
|
|
$
|
325,000
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
1,360,535
|
|
|
$
|
81,250
|
|
|
$
|
—
|
|
|
$
|
1,766,785
|
|
|
Chief
Financial Officer
|
|
December 2019
|
|
$
|
291,136
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
12,635
|
|
|
$
|
72,917
|
|
|
$
|
—
|
|
|
$
|
376,688
|
|
|
|
(1)
|
Bonus and non-equity incentive compensation amounts are for performance during the years ended December 31, 2020 and 2019, whether or not paid in the year the compensation was earned.
|
|
|
(2)
|
Our named executive officers will only realize compensation to the extent the fair market value of our common stock is greater than the exercise price of such stock options. The grant date fair value of option awards granted in 2020 is in accordance with ASC Topic 718, or ASC 718. For information regarding assumptions underlying the valuation of equity awards, see Note 9 contained in the Annual Report on Form 10-K for the year ended December 31, 2020.
|
|
|
(3)
|
Represents cash incentive payments earned based upon the achievement of corporate objectives established by our Board for performance during the years ended December 31, 2020 and 2019.
|
Employment Agreements
On December 12, 2018,
we entered into an Executive Agreement (the “Foster Agreement”) with Dr. Robert Foster, our Chief Executive Officer. The
term of the Foster Agreement commenced on October 1, 2018 and will continue until October 1, 2021, following which time the
Foster Agreement will be automatically renewed for successive one year periods at the end of each term, unless either party delivers written
notice to the other party of their intent to not renew the Foster Agreement. Pursuant to the Foster Agreement, Dr. Foster’s
current base compensation is $400,000 per year. Dr. Foster is eligible to receive a cash bonus of up to 50% of his base salary per
year based on meeting certain performance objectives and bonus criteria.
If Dr. Foster’s
employment is terminated by us for cause or as a result of Dr. Foster’s death or permanent disability, or if Dr. Foster
terminates his the Foster Agreement voluntarily without Good Reason (as defined in the Foster Agreement), Dr. Foster will be entitled
to receive a lump sum equal to (i) any portion of unpaid base compensation then due for periods prior to termination, (ii) any
bonus earned but not yet paid, and (iii) all business expenses reasonably and necessarily incurred by Dr. Foster prior to the
date of termination. If Dr. Foster’s employment is terminated by us without cause or by Dr. Foster for Good Reason, Dr. Foster
will be entitled to receive the amounts due upon termination of his employment by us for cause or as a result of his death or permanent
disability, or upon termination by Dr. Foster of his employment voluntarily without Good Reason, in addition to (provided that Dr. Foster
executes a written release with respect to certain matters) a severance payment equal to his base compensation for 12 months from
the date of termination and reimburse Dr. Foster’s payment of COBRA premiums for 12 months from the date of termination. In
addition, if Dr. Foster’s employment is terminated: (a) by us without cause within 6 months prior to a change of
control (as defined in the Foster Agreement) that was pending during such 6 month period, (b) by Mr. Foster for Good Reason
within 12 months after a change of control, or (c) by us without cause at any time upon or within 12 months after a change
of control, Dr. Foster would be entitled to receive the amounts due upon termination of his employment by us for cause or as a result
of his death or permanent disability, or upon termination by Dr. Foster voluntarily without Good Reason, provided, if Dr. Foster
executes a written release with respect to certain matters, he will be entitled to a severance payment equal to his base compensation
for 12 months from the date of termination and reimbursement of his payment of COBRA premiums for 12 months from the date of termination. In
addition, all of Dr. Foster’s unvested stock options and other equity awards would immediately vest and become fully exercisable
(x) in the event a change of control transaction is pending, for a period of six months following the date of termination, and
(y) in the event a change of control transaction is not then pending, for the period of time set forth in the applicable agreement
evidencing the award.
Outstanding Equity Awards as of
December 31, 2020
|
|
|
Number of Securities
|
|
|
|
|
|
|
|
|
|
|
Underlying Unexercised
|
|
|
Option
|
|
|
Option
|
|
|
|
|
Options (#)
|
|
|
Exercise
|
|
|
Expiration
|
|
|
Name
|
|
Exercisable
|
|
|
Unexercisable
|
|
|
Price ($)
|
|
|
Date(1), (2)
|
|
|
Dr. Robert Foster
|
|
|
179
|
|
|
|
—
|
|
|
|
515.20
|
|
|
|
6/10/2026
|
|
|
Chief Executive Officer
|
|
|
3,233
|
|
|
|
6,467
|
|
|
|
3.24
|
|
|
|
7/29/2029
|
|
|
|
|
|
126,666
|
|
|
|
253,334
|
|
|
|
1.63
|
|
|
|
4/3/2030
|
|
|
|
|
|
—
|
|
|
|
212,000
|
|
|
|
3.72
|
|
|
|
8/19/2030
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John Cavan
|
|
|
179
|
|
|
|
—
|
|
|
|
677.60
|
|
|
|
4/1/2026
|
|
|
Chief Financial Officer
|
|
|
34
|
|
|
|
—
|
|
|
|
616.00
|
|
|
|
8/26/2026
|
|
|
|
|
|
27
|
|
|
|
—
|
|
|
|
324.80
|
|
|
|
7/20/2027
|
|
|
|
|
|
1,940
|
|
|
|
3,880
|
|
|
|
3.24
|
|
|
|
7/24/2029
|
|
|
|
|
|
71,666
|
|
|
|
143,334
|
|
|
|
1.63
|
|
|
|
4/3/2030
|
|
|
|
|
|
—
|
|
|
|
160,000
|
|
|
|
3.72
|
|
|
|
8/19/2030
|
|
Director Compensation
During year ended December 31,
2020, our non-employee directors received the following compensation for their services on the Board and its committees:
|
Name
|
|
Cash Fees
|
|
Option
Awards(1)
|
|
|
Total
|
|
Gary S. Jacob (2)
|
|
$
|
106,625
|
|
$
|
204,151
|
|
$
|
310,776
|
|
John P. Brancaccio (3)
|
|
|
99,375
|
|
|
204,151
|
|
|
303,526
|
|
Arnold Lippa (4)
|
|
|
97,500
|
|
|
204,151
|
|
|
301,651
|
|
Timothy Block (5)
|
|
|
88,025
|
|
|
204,151
|
|
|
292,176
|
|
Thomas Adams (6)
|
|
|
92,500
|
|
|
204,151
|
|
|
296,651
|
|
Petrus Wjjngaard (7)
|
|
|
53,250
|
|
|
47,302
|
|
|
100,552
|
|
|
(1)
|
510,000 option awards were issued during the year ended December 31, 2020.
|
|
|
(2)
|
As of December 31, 2020, Dr. Jacob held 92,785 option awards of which 62,785 are exercisable.
|
|
|
(3)
|
As of December 31, 2020, Mr. Brancaccio held 91,332 option awards of which 61,332 are exercisable.
|
|
|
(4)
|
As of December 31, 2020, Dr. Lippa held 91,110 option awards of which 61,110 grants are exercisable.
|
|
|
(5)
|
As of December 31, 2020, Dr. Block held 91,276 option awards of which 61,276 are exercisable.
|
|
|
(6)
|
As of December 31, 2020, Dr. Adams held 91,051 option awards of which 61,051are exercisable.
|
|
|
(7)
|
As of December 31, 2020, Dr. Petrus Wijngaard held 60,000 option awards of which 10,000 are exercisable.
|
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS
AND MANAGEMENT
The following table sets forth
certain information regarding beneficial ownership of shares of our common stock as of Record Date, based on shares
issued and outstanding by (i) each person known to beneficially own more than 5% of our outstanding common stock, (ii) each
of our directors, (iii) our executive officers and (iv) all directors and executive officers as a group. Shares are beneficially
owned when an individual has voting and/or investment power over the shares or could obtain voting and/or investment power over the shares
within 60 days of the Record Date. Except as otherwise indicated, the persons named in the table have sole voting and investment power
with respect to all shares beneficially owned, subject to community property laws, where applicable. Unless otherwise indicated, the address
of each beneficial owner listed below is c/o Hepion Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, New Jersey 08837.
|
|
|
|
|
|
Shares of
|
|
|
Shares of
|
|
|
|
|
|
|
Number of
|
|
|
common stock
|
|
|
common stock
|
|
|
Percentage of
|
|
|
|
Shares
|
|
|
issuable upon
|
|
|
issuable upon
|
|
|
common stock
|
|
|
|
Benefically
|
|
|
exercise of
|
|
|
exercise of
|
|
|
Benefically
|
|
Beneficial Owner
|
|
Owned
|
|
|
stock options
|
|
|
warrants
|
|
|
owned
|
|
Directors and Executive Officers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
John Cavan
|
|
|
14,936
|
|
|
|
137,519
|
|
|
|
123
|
|
|
*
|
|
Dr. Robert Foster
|
|
|
45,861
|
|
|
|
215,107
|
|
|
|
-
|
|
|
*
|
|
Gary S. Jacob
|
|
|
12,197
|
|
|
|
92,785
|
|
|
|
123
|
|
|
*
|
|
John Brancaccio
|
|
|
7,039
|
|
|
|
91,332
|
|
|
|
25
|
|
|
*
|
|
Timothy Block
|
|
|
-
|
|
|
|
91,276
|
|
|
|
-
|
|
|
*
|
|
Arnold Lippa
|
|
|
138
|
|
|
|
91,110
|
|
|
|
123
|
|
|
*
|
|
Thomas Adams
|
|
|
-
|
|
|
|
91,051
|
|
|
|
-
|
|
|
*
|
|
Petrus Wijngaard
|
|
|
30,006
|
|
|
|
40,000
|
|
|
|
-
|
|
|
*
|
|
All current executive officers and directors as a group (8 persons)
|
|
|
110,177
|
|
|
|
850,180
|
|
|
|
394
|
|
|
1.2
|
* less than one percent.
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
The following is a description
of transactions or series of transactions since January 1, 2019 or any currently proposed transaction, to which we were or are to
be a participant and in which the amount involved in the transaction or series of transactions exceeds $120,000, and in which any of our
directors, executive officers or persons who we know hold more than five percent of any class of our capital stock, including their immediate
family members, had or will have a direct or indirect material interest, other than compensation arrangements with our directors and executive
officers.
None
OTHER MATTERS
We have no knowledge of any
other matters that may come before the Annual Meeting and do not intend to present any other matters. However, if any other matters shall
properly come before the Annual Meeting or any adjournment or postponement thereof, the persons soliciting proxies will have the discretion
to vote as they see fit unless directed otherwise.
We
will bear the cost of soliciting proxies in the accompanying form. In addition to the use of the mailings, proxies may also be solicited
by our directors, officers or other employees, personally or by telephone, facsimile or email, none of whom will be compensated separately
for these solicitation activities. We have engaged Kingsdale Advisors to assist in the solicitation of proxies. We will pay a fee
of $3,500 plus reasonable out-of-pocket charges.
If you do not plan to attend
the Annual Meeting, in order that your shares may be represented and in order to assure the required quorum, please sign, date and return
your proxy promptly. In the event you are able to attend the Annual Meeting, at your request, we will cancel your previously submitted
proxy.
ADDITIONAL INFORMATION
Householding
The SEC has adopted rules that
permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for Proxy Availability Notice or other Annual
Meeting materials with respect to two or more stockholders sharing the same address by delivering a single Notice or other Annual Meeting
materials addressed to those stockholders. This process, which is commonly referred to as householding, potentially provides extra convenience
for stockholders and cost savings for companies. Stockholders who participate in householding will continue to be able to access and receive
separate proxy cards.
This year, a number of brokers
with account holders who are our stockholders will be “householding” our proxy materials. A Notice or proxy materials will
be delivered in one single envelope to multiple stockholders sharing an address unless contrary instructions have been received from one
or more of the affected stockholders. Once you have received notice from your broker that they will be householding communications to
your address, householding will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer
wish to participate in householding and would prefer to receive a separate Notice or proxy materials, please notify your broker or call
our Secretary at (732) 902-4000, or submit a request in writing to our Secretary, c/o Hepion Pharmaceuticals, Inc., 399 Thornall
Street, First Floor, Edison, NJ 08837. Stockholders who currently receive multiple copies of the Notice or proxy materials at their address
and would like to request householding of their communications should contact their broker. In addition, we will promptly deliver, upon
written or oral request to the address or telephone number above, a separate copy of the Notice or proxy materials to a stockholder at
a shared address to which a single copy of the documents was delivered.
Annual Reports and Form 10-K
Additional copies of our Annual
Report on Form 10-K for the fiscal year ended December 31, 2020 may be obtained without charge by writing to the Secretary,
Hepion Pharmaceuticals, Inc., 399 Thornall Street, First Floor, Edison, NJ 08837.
|
|
By Order of the Board of Directors
|
|
|
|
|
|
/s/ Gary S. Jacob
|
|
|
Gary S. Jacob, Ph.D.
|
|
|
Chairman of the Board of Directors
|
, 2021
APPENDIX A
HEPION
PHARMACEUTICALS, INC.
2021 OMNIBUS EQUITY INCENTIVE PLAN
|
|
Section 1.
|
Purpose
of Plan.
|
The name of the Plan is the Hepion Pharmaceuticals, Inc.
2021 Omnibus Equity Incentive Plan (the “Plan”). The purposes of the Plan are to (i) provide an additional incentive
to selected employees, directors, and independent contractors of the Company or its Affiliates whose contributions are essential to the
growth and success of the Company, (ii) strengthen the commitment of such individuals to the Company and its Affiliates, (iii) motivate
those individuals to faithfully and diligently perform their responsibilities and (iv) attract and retain competent and dedicated
individuals whose efforts will result in the long-term growth and profitability of the Company. To accomplish these purposes, the Plan
provides that the Company may grant Options, Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards
or any combination of the foregoing.
For purposes of the Plan, the following terms shall
be defined as set forth below:
(a) “Administrator” means the Board,
or, if and to the extent the Board does not administer the Plan, the Committee in accordance with Section 3 hereof.
(b) “Affiliate” means a Person that
directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person
specified as of any date of determination.
(c) “Applicable Laws” means the applicable
requirements under U.S. federal and state corporate laws, U.S. federal and state securities laws, including the Code, any stock exchange
or quotation system on which the Common Stock is listed or quoted and the applicable laws of any other country or jurisdiction where Awards
are granted under the Plan, as are in effect from time to time.
(d) “Award” means any Option, Stock
Appreciation Right, Restricted Stock, Restricted Stock Unit or Other Stock-Based Award granted under the Plan.
(e) “Award Agreement” means any written
notice, agreement, contract or other instrument or document evidencing an Award, including through electronic medium, which shall contain
such terms and conditions with respect to an Award as the Administrator shall determine, consistent with the Plan.
(f) “Beneficial Owner” (or any variant
thereof) has the meaning defined in Rule 13d-3 under the Exchange Act.
(g) “Board” means the Board of Directors
of the Company.
(h) “Bylaws” mean the bylaws of the
Company, as may be amended and/or restated from time to time.
(i) “Cause” has the meaning assigned
to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement
exists or if such agreement does not define “Cause,” then “Cause” means a Participant’s (i) conviction
of a felony or a crime involving fraud or moral turpitude; (ii) theft, material act of dishonesty or fraud, intentional falsification
of any employment or Company records, or commission of any criminal act which impairs Participant’s ability to perform appropriate
employment duties for the Company; (iii) intentional or reckless conduct or gross negligence materially harmful to the Company or
the successor to the Company after a Change in Control, including violation of a non-competition or confidentiality agreement; (iv) willful
failure to follow lawful instructions of the person or body to which Participant reports; or (v) gross negligence or willful misconduct
in the performance of Participant’s assigned duties. Cause shall not include mere unsatisfactory performance in the achievement
of a Participant’s job objectives. Any voluntary termination of employment or service by the Participant in anticipation of an involuntary
termination of the Participant’s employment or service, as applicable, for Cause shall be deemed to be a termination for Cause.
(j) “Change in Capitalization” means
any (i) merger, consolidation, reclassification, recapitalization, spin-off, spin-out, repurchase or other reorganization or corporate
transaction or event, (ii) special or extraordinary dividend or other extraordinary distribution (whether in the form of cash, Common
Stock or other property), stock split, reverse stock split, share subdivision or consolidation, (iii) combination or exchange of
shares or (iv) other change in corporate structure, which, in any such case, the Administrator determines, in its sole discretion,
affects the Shares such that an adjustment pursuant to Section 5 hereof is appropriate.
(k) “Change in Control” means the
first occurrence of an event set forth in any one of the following paragraphs following the Effective Date:
(1) any Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the securities Beneficially Owned by such Person which were acquired
directly from the Company or any Affiliate thereof) representing more than fifty percent (50%) of the combined voting power of the Company’s
then outstanding securities, excluding any Person who becomes such a Beneficial Owner in connection with a transaction described in clause
(i) of paragraph (3) below; or
(2) the date on which individuals who constitute the
Board as of the Effective Date and any new director (other than a director whose initial assumption of office is in connection with an
actual or threatened election contest, including, but not limited to, a consent solicitation, relating to the election of directors of
the Company) whose appointment or election by the Board or nomination for election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then still in office who either were directors on the Effective Date
or whose appointment, election or nomination for election was previously so approved or recommended cease for any reason to constitute
a majority of the number of directors serving on the Board; or
(3) there is consummated a merger or consolidation
of the Company or any direct or indirect Subsidiary with any other corporation or other entity, other than (i) a merger or consolidation
(A) which results in the voting securities of the Company outstanding immediately prior to such merger or consolidation continuing
to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or any parent thereof),
in combination with the ownership of any trustee or other fiduciary holding securities under an employee benefit plan of the Company or
any Subsidiary, fifty percent (50%) or more of the combined voting power of the securities of the Company or such surviving entity or
any parent thereof outstanding immediately after such merger or consolidation and (B) following which the individuals who comprise
the Board immediately prior thereto constitute at least a majority of the board of directors of the Company, the entity surviving such
merger or consolidation or, if the Company or the entity surviving such merger or consolidation is then a Subsidiary, the ultimate parent
thereof, or (ii) a merger or consolidation effected to implement a recapitalization of the Company (or similar transaction) in which
no Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities Beneficially
Owned by such Person any securities acquired directly from the Company or its Affiliates) representing more than fifty percent (50%) of
the combined voting power of the Company’s then outstanding securities; or
(4) the stockholders of the Company approve a plan
of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company
of all or substantially all of the Company’s assets, other than (A) a sale or disposition by the Company of all or substantially
all of the Company’s assets to an entity, more than fifty percent (50%) of the combined voting power of the voting securities of
which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions as their
ownership of the Company immediately prior to such sale or (B) a sale or disposition of all or substantially all of the Company’s
assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of
the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent
thereof.
Notwithstanding the foregoing, (i) a Change in Control shall not
be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following
which the holders of Common Stock immediately prior to such transaction or series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction
or series of transactions and (ii) to the extent required to avoid accelerated taxation and/or tax penalties under Section 409A
of the Code, a Change in Control shall be deemed to have occurred under the Plan with respect to any Award that constitutes deferred compensation
under Section 409A of the Code only if a change in the ownership or effective control of the Company or a change in ownership of
a substantial portion of the assets of the Company shall also be deemed to have occurred under Section 409A of the Code. For purposes
of this definition of Change in Control, the term “Person” shall not include (i) the Company or any Subsidiary thereof,
(ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary thereof, (iii) an
underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a corporation owned, directly or indirectly,
by the stockholders of the Company in substantially the same proportions as their ownership of shares of the Company.
(l) “Code” means the Internal Revenue
Code of 1986, as amended from time to time, or any successor thereto.
(m) “Committee” means any committee
or subcommittee the Board may appoint to administer the Plan. Subject to the discretion of the Board, the Committee shall be composed
entirely of individuals who meet the qualifications of a “non-employee director” within the meaning of Rule 16b-3 under
the Exchange Act and any other qualifications required by the applicable stock exchange on which the Common Stock is traded.
(n) “Common Stock” means the common
stock of the Company, par value $0.0001.
(o) “Company” means Hepion Pharmaceuticals, Inc.,
a Delaware corporation (or any successor company, except as the term “Company” is used in the definition of “Change
in Control” above).
(p) “Disability” has the meaning assigned
to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such agreement
exists or if such agreement does not define “Disability,” then “Disability” means that a Participant, as determined
by the Administrator in its sole discretion, (i) is unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period
of not less than twelve (12) months, or (ii) is, by reason of any medically determinable physical or mental impairment which can
be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income
replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company
or an Affiliate thereof.
(q) “Effective Date” has the meaning
set forth in Section 17 hereof.
(r) “Eligible Recipient” means an
employee, director or independent contractor of the Company or any Affiliate of the Company who has been selected as an eligible participant
by the Administrator; provided, however, to the extent required to avoid accelerated taxation and/or tax penalties under
Section 409A of the Code, an Eligible Recipient of an Option or a Stock Appreciation Right means an employee, non-employee director
or independent contractor of the Company or any Affiliate of the Company with respect to whom the Company is an “eligible issuer
of service recipient stock” within the meaning of Section 409A of the Code.
(s) “Exchange Act” means the Securities
Exchange Act of 1934, as amended from time to time.
(t) “Exempt Award” shall mean the
following:
(1) An Award granted in assumption of, or in substitution
for, outstanding awards previously granted by a corporation or other entity acquired by the Company or any of its Subsidiaries or with
which the Company or any of its Subsidiaries combines by merger or otherwise. The terms and conditions of any such Awards may vary from
the terms and conditions set forth in the Plan to the extent the Administrator at the time of grant may deem appropriate, subject to Applicable
Laws.
(2) An award that an Eligible Recipient purchases at
Fair Market Value (including awards that an Eligible Recipient elects to receive in lieu of fully vested compensation that is otherwise
due) whether or not the Shares are delivered immediately or on a deferred basis.
(u) “Exercise Price” means, (i) with
respect to any Option, the per share price at which a holder of such Option may purchase Shares issuable upon exercise of such Award,
and (ii) with respect to a Stock Appreciation Right, the base price per share of such Stock Appreciation Right.
(v) “Fair Market Value” of a share
of Common Stock or another security as of a particular date shall mean the fair market value as determined by the Administrator in its
sole discretion; provided, that, (i) if the Common Stock or other security is admitted to trading on a national securities exchange,
the fair market value on any date shall be the closing sale price reported on such date, or if no shares were traded on such date, on
the last preceding date for which there was a sale of a share of Common Stock on such exchange, or (ii) if the Common Stock or other
security is then traded in an over-the-counter market, the fair market value on any date shall be the average of the closing bid and asked
prices for such share in such over-the-counter market for the last preceding date on which there was a sale of such share in such market.
(w) “Free Standing Rights” has the
meaning set forth in Section 8.
(x) “Good Reason” has the meaning
assigned to such term in any individual service, employment or severance agreement or Award Agreement with the Participant or, if no such
agreement exists or if such agreement does not define “Good Reason,” “Good Reason” and any provision of this Plan
that refers to “Good Reason” shall not be applicable to such Participant.
(y) “Grandfathered Arrangement” means
an Award which is provided pursuant to a written binding contract in effect on November 2, 2017, and which was not modified in any
material respect on or after November 2, 2017, within the meaning of Section 13601(e)(2) of P.L. 115.97, as may be amended
from time to time (including any rules and regulations promulgated thereunder).
(z) “Incentive Compensation” means
annual cash bonus and any Award.
(aa) “ISO” means an Option intended
to be and designated as an “incentive stock option” within the meaning of Section 422 of the Code.
(bb) “Nonqualified Stock Option” shall
mean an Option that is not designated as an ISO.
(cc) “Option” means an option to purchase
shares of Common Stock granted pursuant to Section 7 hereof. The term “Option” as used in the Plan includes the terms
“Nonqualified Stock Option” and “ISO.”
(dd) “Other Stock-Based Award” means
a right or other interest granted pursuant to Section 10 hereof that may be denominated or payable in, valued in whole or in part
by reference to, or otherwise based on or related to, Common Stock, including, but not limited to, unrestricted Shares, dividend equivalents
or performance units, each of which may be subject to the attainment of performance goals or a period of continued provision of service
or employment or other terms or conditions as permitted under the Plan.
(ee) “Participant” means any Eligible
Recipient selected by the Administrator, pursuant to the Administrator’s authority provided for in Section 3 below, to receive
grants of Awards, and, upon his or her death, his or her successors, heirs, executors and administrators, as the case may be.
(ff) “Person” shall have the meaning
given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof.
(gg) “Plan” means this 2021 Omnibus
Equity Incentive Plan.
(hh) “Prior Plan” means the Company’s
2013 Equity Incentive Plan, as in effect immediately prior to the Effective Date.
(ii) “Related Rights” has the meaning
set forth in Section 8.
(jj) “Restricted Period” has the meaning
set forth in Section 9.
(kk) “Restricted Stock” means a Share
granted pursuant to Section 9 below subject to certain restrictions that lapse at the end of a specified period (or periods) of time
and/or upon attainment of specified performance objectives.
(ll) “Restricted Stock Unit” means
the right granted pursuant to Section 9 hereof to receive a Share at the end of a specified restricted period (or periods) of time
and/or upon attainment of specified performance objectives.
(mm) “Rule 16b-3” has the meaning
set forth in Section 3.
(nn) “Section 16 Officer” means
any officer of the Company whom the Board has determined is subject to the reporting requirements of Section 16 of the Exchange Act,
whether or not such individual is a Section 16 Officer at the time the determination to recoup compensation is made.
(oo) “Shares” means Common Stock reserved
for issuance under the Plan, as adjusted pursuant to the Plan, and any successor (pursuant to a merger, consolidation or other reorganization)
security.
(pp) “Stock Appreciation Right” means
a right granted pursuant to Section 8 hereof to receive an amount equal to the excess, if any, of (i) the aggregate Fair Market
Value, as of the date such Award or portion thereof is surrendered, of the Shares covered by such Award or such portion thereof, over
(ii) the aggregate Exercise Price of such Award or such portion thereof.
(qq) “Subsidiary” means, with respect
to any Person, as of any date of determination, any other Person as to which such first Person owns or otherwise controls, directly or
indirectly, more than 50% of the voting shares or other similar interests or a sole general partner interest or managing member or similar
interest of such other Person.
(rr) “Transfer” has the meaning set
forth in Section 15.
|
|
Section 3.
|
Administration.
|
(a) The Plan shall be administered by the Administrator
and shall be administered, to the extent applicable, in accordance with Rule 16b-3 under the Exchange Act (“Rule 16b-3”).
(b) Pursuant to the terms of the Plan, the Administrator,
subject, in the case of any Committee, to any restrictions on the authority delegated to it by the Board, shall have the power and authority,
without limitation:
(1) to select those Eligible Recipients who shall be
Participants;
(2) to determine whether and to what extent Options,
Stock Appreciation Rights, Restricted Stock, Restricted Stock Units, Other Stock-Based Awards or a combination of any of the foregoing,
are to be granted hereunder to Participants;
(3) to determine the number of Shares to be covered
by each Award granted hereunder;
(4) to determine the terms and conditions, not inconsistent
with the terms of the Plan, of each Award granted hereunder (including, but not limited to, (i) the restrictions applicable to Restricted
Stock or Restricted Stock Units and the conditions under which restrictions applicable to such Restricted Stock or Restricted Stock Units
shall lapse, (ii) the performance goals and periods applicable to Awards, (iii) the Exercise Price of each Option and each Stock
Appreciation Right or the purchase price of any other Award, (iv) the vesting schedule and terms applicable to each Award. (v) the number of Shares or amount of cash or other property subject to each Award and (vi) subject
to the requirements of Section 409A of the Code (to the extent applicable) any amendments to the terms and conditions of outstanding
Awards, including, but not limited to, extending the exercise period of such Awards and accelerating the payment schedules of such Awards
and/or, to the extent specifically permitted under the Plan, accelerating the vesting schedules of such Awards);
(5) to determine the terms and conditions, not inconsistent
with the terms of the Plan, which shall govern all written instruments evidencing Awards;
(6) to determine the Fair Market Value in accordance
with the terms of the Plan;
(7) to determine the duration and purpose of leaves
of absence which may be granted to a Participant without constituting termination of the Participant’s service or employment for
purposes of Awards granted under the Plan;
(8) to adopt, alter and repeal such administrative
rules, regulations, guidelines and practices governing the Plan as it shall from time to time deem advisable;
(9) to construe and interpret the terms and provisions
of, and supply or correct omissions in, the Plan and any Award issued under the Plan (and any Award Agreement relating thereto), and to
otherwise supervise the administration of the Plan and to exercise all powers and authorities either specifically granted under the Plan
or necessary and advisable in the administration of the Plan; and
(10) to prescribe, amend and rescind rules and
regulations relating to sub-plans established for the purpose of satisfying applicable non-United States laws or for qualifying for favorable
tax treatment under applicable non-United States laws, which rules and regulations may be set forth in an appendix or appendixes
to the Plan.
(c) Subject to Section 5, neither the Board nor
the Committee shall have the authority to reprice or cancel and regrant any Award at a lower exercise, base or purchase price
or cancel any Award with an exercise, base or purchase price in exchange for cash, property or other Awards without first obtaining the
approval of the Company’s stockholders.
(d) All decisions made by the Administrator pursuant
to the provisions of the Plan shall be final, conclusive and binding on all Persons, including the Company and the Participants.
(e) The expenses of administering the Plan shall be borne
by the Company and its Affiliates.
(f) If at any time or to any extent the Board shall not
administer the Plan, then the functions of the Administrator specified in the Plan shall be exercised by the Committee. Except as otherwise
provided in the Articles of Incorporation or Bylaws of the Company, any action of the Committee with respect to the administration of
the Plan shall be taken by a majority vote at a meeting at which a quorum is duly constituted or unanimous written consent of the Committee’s
members.
|
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Section 4.
|
Shares Reserved for Issuance Under the Plan.
|
(a) Subject to Section 5 hereof, the number of shares
of Common Stock that are reserved and available for issuance pursuant to Awards granted under the Plan shall be equal to the sum of (i) 7,500,000
shares, plus (ii) the number of shares of Common Stock reserved, but unissued under the Prior Plan; and (iii) the number of
shares of Common Stock underlying forfeited awards under the Prior Plan; provided, that, shares of Common Stock issued under
the Plan with respect to an Exempt Award shall not count against such share limit. Following the Effective Date, no further awards shall
be issued under the Prior Plan, but all awards under the Prior Plan which are outstanding as of the Effective Date (including any Grandfathered
Arrangement) shall continue to be governed by the terms, conditions and procedures set forth in the Prior Plan and any applicable Award
Agreement. It is specifically understood that option awards that were granted by the Company on May 18, 2021 pursuant to the Prior Plan shall instead
be governed by this Plan (and shall be deemed Options) and their respective award agreements. It is specifically understood that option awards that were granted by the Company on May 18, 2021 pursuant to the Prior Plan shall be
instead be governed by this Plan (and shall be deemed Options) and their respective award agreements.
(b) Shares issued under the Plan may, in whole or in
part, be authorized but unissued Shares or Shares that shall have been or may be reacquired by the Company in the open market, in private
transactions or otherwise. If an Award entitles the Participant to receive or purchase Shares, the number of Shares covered by such Award
or to which such Award relates shall be counted on the date of grant of such Award against the aggregate number of Shares available for
granting Awards under the Plan. If any Shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise
terminates or expires without a distribution of Shares to the Participant, the Shares with respect to such Award shall, to the extent
of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for granting Awards under the
Plan. Notwithstanding the foregoing, (i) Shares surrendered or withheld as payment of either the Exercise Price of an Award (including
Shares otherwise underlying a Stock Appreciation Right that are retained by the Company to account for the Exercise Price of such Stock
Appreciation Right) and/or withholding taxes in respect of an Award and (ii) any Shares reacquired by the Company on the open market
or otherwise using cash proceeds from the exercise of Options shall no longer be available for grant under the Plan. In addition, (i) to
the extent an Award is denominated in shares of Common Stock, but paid or settled in cash, the number of shares of Common Stock with respect
to which such payment or settlement is made shall again be available for grants of Awards pursuant to the Plan and (ii) shares of
Common Stock underlying Awards that can only be settled in cash shall not be counted against the aggregate number of shares of Common
Stock available for Awards under the Plan. Upon the exercise of any Award granted in tandem with any other Awards, such related Awards
shall be cancelled to the extent of the number of Shares as to which the Award is exercised and, notwithstanding the foregoing, such number
of Shares shall no longer be available for grant under the Plan.
(c) No more than 7,500,000 Shares shall be issued pursuant
to the exercise of ISOs.
(d) Director Compensation Limits. Notwithstanding any
provision to the contrary in the Plan, the sum of the grant date Fair Market Value of equity-based Awards (determined as of the grant
date in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 718, or any successor thereto) plus
any cash fees paid by the Company for serving as a non-employee director of the Board during
any calendar year shall not exceed $500,000, increased to $750,000 in the calendar year of his or her initial service as a non-employee
director.
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Section 5.
|
Equitable Adjustments.
|
In the event of any Change in Capitalization, an
equitable substitution or proportionate adjustment shall be made in (i) the aggregate number and kind of securities reserved for
issuance under the Plan pursuant to Section 4, (ii) the kind, number of securities subject to, and the Exercise Price subject
to outstanding Options and Stock Appreciation Rights granted under the Plan, (iii) the kind, number and purchase price of Shares
or other securities or the amount of cash or amount or type of other property subject to outstanding Restricted Stock, Restricted Stock
Units or Other Stock-Based Awards granted under the Plan; and/or (iv) the terms and conditions of any outstanding Awards (including,
without limitation, any applicable performance targets or criteria with respect thereto); provided, however, that any fractional
shares resulting from the adjustment shall be eliminated. Such other equitable substitutions or adjustments shall be made as may be determined
by the Administrator, in its sole discretion. Without limiting the generality of the foregoing, in connection with a Change in Capitalization,
the Administrator may provide, in its sole discretion, but subject in all events to the requirements of Section 409A of the Code,
for the cancellation of any outstanding Award granted hereunder in exchange for payment in cash or other property having an aggregate
Fair Market Value equal to the Fair Market Value of the Shares, cash or other property covered by such Award, reduced by the aggregate
Exercise Price or purchase price thereof, if any; provided, however, that if the Exercise Price or purchase price of any
outstanding Award is equal to or greater than the Fair Market Value of the shares of Common Stock, cash or other property covered by such
Award, the Administrator may cancel such Award without the payment of any consideration to the Participant. Further, without limiting
the generality of the foregoing, with respect to Awards subject to foreign laws, adjustments made hereunder shall be made in compliance
with applicable requirements. Except to the extent determined by the Administrator, any adjustments to ISOs under this Section 5
shall be made only to the extent not constituting a “modification” within the meaning of Section 424(h)(3) of the
Code. The Administrator’s determinations pursuant to this Section 5 shall be final, binding and conclusive.
The Participants in the Plan shall be selected from
time to time by the Administrator, in its sole discretion, from those individuals that qualify as Eligible Recipients.
(a) General.
Options granted under the Plan shall be designated as Nonqualified Stock Options or ISOs. Each Participant who is granted an Option shall
enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine, in its sole
discretion, including, among other things, the Exercise Price of the Option, the term of the Option and provisions regarding exercisability
of the Option, and whether the Option is intended to be an ISO or a Nonqualified Stock Option (and in the event the Award Agreement has
no such designation, the Option shall be a Nonqualified Stock Option). The provisions of each Option need not be the same with respect
to each Participant. More than one Option may be granted to the same Participant and be outstanding concurrently hereunder. Options granted
under the Plan shall be subject to the terms and conditions set forth in this Section 7 and shall contain such additional terms and
conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable and set forth in the applicable Award
Agreement.
(b) Exercise
Price. The Exercise Price of Shares purchasable under an Option shall be determined by the Administrator in its sole discretion
at the time of grant, but in no event shall the exercise price of an Option be less than one hundred percent (100%) of the Fair Market
Value of a share of Common Stock on the date of grant.
(c) Option
Term. The maximum term of each Option shall be fixed by the Administrator, but no Option shall be exercisable more than ten
(10) years after the date such Option is granted. Each Option’s term is subject to earlier expiration pursuant to the applicable
provisions in the Plan and the Award Agreement. Notwithstanding the foregoing, subject to Section 4(d) of the Plan, the Administrator
shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as the Administrator,
in its sole discretion, deems appropriate.
(d) Exercisability.
Each Option shall be exercisable at such time or times and subject to such terms and conditions, including the attainment of performance
goals, as shall be determined by the Administrator in the applicable Award Agreement. The Administrator may also provide that any Option
shall be exercisable only in installments, and the Administrator may waive such installment exercise provisions at any time, in whole
or in part, based on such factors as the Administrator may determine in its sole discretion.
(e) Method
of Exercise. Options may be exercised in whole or in part by giving written notice of exercise to the Company specifying the
number of whole Shares to be purchased, accompanied by payment in full of the aggregate Exercise Price of the Shares so purchased in cash
or its equivalent, as determined by the Administrator. As determined by the Administrator, in its sole discretion, with respect to any
Option or category of Options, payment in whole or in part may also be made (i) by means of consideration received under any cashless
exercise procedure approved by the Administrator (including the withholding of Shares otherwise issuable upon exercise), (ii) in
the form of unrestricted Shares already owned by the Participant which have a Fair Market Value on the date of surrender equal to the
aggregate exercise price of the Shares as to which such Option shall be exercised, (iii) any other form of consideration approved
by the Administrator and permitted by Applicable Laws or (iv) any combination of the foregoing.
(f) ISOs.
The terms and conditions of ISOs granted hereunder shall be subject to the provisions of Section 422 of the Code and the terms, conditions,
limitations and administrative procedures established by the Administrator from time to time in accordance with the Plan. At the discretion
of the Administrator, ISOs may be granted only to an employee of the Company, its “parent corporation” (as such term
is defined in Section 424(e) of the Code) or a Subsidiary of the Company.
(1) ISO
Grants to 10% Stockholders. Notwithstanding anything to the contrary in the Plan, if an ISO is granted to a Participant who
owns shares representing more than ten percent (10%) of the voting power of all classes of shares of the Company, its “parent corporation”
(as such term is defined in Section 424(e) of the Code) or a Subsidiary of the Company, the term of the ISO shall not exceed
five (5) years from the time of grant of such ISO and the Exercise Price shall be at least one hundred and ten percent (110%) of
the Fair Market Value of the Shares on the date of grant.
(2) $100,000
Per Year Limitation For ISOs. To the extent the aggregate Fair Market Value (determined on the date of grant) of the Shares
for which ISOs are exercisable for the first time by any Participant during any calendar year (under all plans of the Company) exceeds
$100,000, such excess ISOs shall be treated as Nonqualified Stock Options.
(3) Disqualifying
Dispositions. Each Participant awarded an ISO under the Plan shall notify the Company in writing immediately after the date
the Participant makes a “disqualifying disposition” of any Share acquired pursuant to the exercise of such ISO. A “disqualifying
disposition” is any disposition (including any sale) of such Shares before the later of (i) two years after the date of grant
of the ISO and (ii) one year after the date the Participant acquired the Shares by exercising the ISO. The Company may, if determined
by the Administrator and in accordance with procedures established by it, retain possession of any Shares acquired pursuant to the exercise
of an ISO as agent for the applicable Participant until the end of the period described in the preceding sentence, subject to complying
with any instructions from such Participant as to the sale of such Shares.
(h) Rights
as Stockholder. A Participant shall have no rights to dividends, dividend equivalents or distributions or any other rights
of a stockholder with respect to the Shares subject to an Option until the Participant has given written notice of the exercise thereof,
and has paid in full for such Shares and has satisfied the requirements of Section 15 hereof.
(i) Termination
of Employment or Service. Treatment of an Option upon termination of employment of a Participant shall be provided for by the
Administrator in the Award Agreement.
(j) Other
Change in Employment or Service Status. An Option shall be affected, both with regard to vesting schedule and termination,
by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment, partial Disability
or other changes in the employment status or service status of a Participant, in the discretion of the Administrator.
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Section 8.
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Stock Appreciation Rights.
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(a) General.
Stock Appreciation Rights may be granted either alone (“Free Standing Rights”) or in conjunction with all or part of
any Option granted under the Plan (“Related Rights”). Related Rights may be granted either at or after the time of
the grant of such Option. The Administrator shall determine the Eligible Recipients to whom, and the time or times at which, grants of
Stock Appreciation Rights shall be made. Each Participant who is granted a Stock Appreciation Right shall enter into an Award Agreement
with the Company, containing such terms and conditions as the Administrator shall determine, in its sole discretion, including, among
other things, the number of Shares to be awarded, the Exercise Price per Share, and all other conditions of Stock Appreciation Rights.
Notwithstanding the foregoing, no Related Right may be granted for more Shares than are subject to the Option to which it relates. The
provisions of Stock Appreciation Rights need not be the same with respect to each Participant. Stock Appreciation Rights granted under
the Plan shall be subject to the following terms and conditions set forth in this Section 8 and shall contain such additional terms
and conditions, not inconsistent with the terms of the Plan, as the Administrator shall deem desirable, as set forth in the applicable
Award Agreement.
(b) Awards;
Rights as Stockholder. A Participant shall have no rights to dividends or any other rights of a stockholder with respect to
the shares of Common Stock, if any, subject to a Stock Appreciation Right until the Participant has given written notice of the exercise
thereof and has satisfied the requirements of Section 15 hereof.
(c) Exercise
Price. The Exercise Price of Shares purchasable under a Stock Appreciation Right shall be determined by the Administrator in
its sole discretion at the time of grant, but in no event shall the exercise price of a Stock Appreciation Right be less than one hundred
percent (100%) of the Fair Market Value of a share of Common Stock on the date of grant.
(d) Exercisability.
(1) Stock Appreciation Rights that are Free Standing
Rights shall be exercisable at such time or times and subject to such terms and conditions as shall be determined by the Administrator
in the applicable Award Agreement.
(2) Stock Appreciation Rights that are Related Rights
shall be exercisable only at such time or times and to the extent that the Options to which they relate shall be exercisable in accordance
with the provisions of Section 7 hereof and this Section 8 of the Plan.
(e) Payment
Upon Exercise.
(1) Upon the exercise of a Free Standing Right, the
Participant shall be entitled to receive up to, but not more than, that number of Shares equal in value to the excess of the Fair Market
Value as of the date of exercise over the Exercise Price per share specified in the Free Standing Right multiplied by the number of Shares
in respect of which the Free Standing Right is being exercised.
(2) A Related Right may be exercised by a Participant
by surrendering the applicable portion of the related Option. Upon such exercise and surrender, the Participant shall be entitled to receive
up to, but not more than, that number of Shares equal in value to the excess of the Fair Market Value as of the date of exercise over
the Exercise Price specified in the related Option multiplied by the number of Shares in respect of which the Related Right is being exercised.
Options which have been so surrendered, in whole or in part, shall no longer be exercisable to the extent the Related Rights have been
so exercised.
(3) Notwithstanding the foregoing, the Administrator
may determine to settle the exercise of a Stock Appreciation Right in cash (or in any combination of Shares and cash).
(f) Termination
of Employment or Service. Treatment of a Stock Appreciation Right upon termination of employment of a Participant shall be
provided for by the Administrator in the Award Agreement.
(g) Term.
(1) The term of each Free Standing Right shall be fixed
by the Administrator, but no Free Standing Right shall be exercisable more than ten (10) years after the date such right is granted.
(2) The term of each Related Right shall be the term
of the Option to which it relates, but no Related Right shall be exercisable more than ten (10) years after the date such right is
granted.
(h) Other
Change in Employment or Service Status. Stock Appreciation Rights shall be affected, both with regard to vesting schedule and
termination, by leaves of absence, including unpaid and un-protected leaves of absence, changes from full-time to part-time employment,
partial Disability or other changes in the employment or service status of a Participant, in the discretion of the Administrator.
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Section 9.
|
Restricted Stock and Restricted Stock Units.
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(a) General.
Restricted Stock or Restricted Stock Units may be issued under the Plan. The Administrator shall determine the Eligible Recipients to
whom, and the time or times at which, Restricted Stock or Restricted Stock Units shall be made. Each Participant who is granted Restricted
Stock or Restricted Stock Units shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator
shall determine, in its sole discretion, including, among other things, the number of Shares to be awarded; the price, if any, to be paid
by the Participant for the acquisition of Restricted Stock or Restricted Stock Units; the period of time restrictions, performance goals
or other conditions that apply to Transferability, delivery or vesting of such Awards (the “Restricted Period”); and
all other conditions applicable to the Restricted Stock and Restricted Stock Units. If the restrictions, performance goals or conditions
established by the Administrator are not attained, a Participant shall forfeit his or her Restricted Stock or Restricted Stock Units,
in accordance with the terms of the grant. The provisions of the Restricted Stock or Restricted Stock Units need not be the same with
respect to each Participant.
(b) Awards
and Certificates. Except as otherwise provided below in Section 9(c), (i) each Participant who is granted an Award
of Restricted Stock may, in the Company’s sole discretion, be issued a share certificate in respect of such Restricted Stock; and
(ii) any such certificate so issued shall be registered in the name of the Participant, and shall bear an appropriate legend referring
to the terms, conditions and restrictions applicable to any such Award. The Company may require that the share certificates, if any, evidencing
Restricted Stock granted hereunder be held in the custody of the Company until the restrictions thereon shall have lapsed, and that, as
a condition of any Award of Restricted Stock, the Participant shall have delivered a share transfer form, endorsed in blank, relating
to the Shares covered by such Award. Certificates for shares of unrestricted Common Stock may, in the Company’s sole discretion,
be delivered to the Participant only after the Restricted Period has expired without forfeiture in such Restricted Stock Award. With respect
to Restricted Stock Units to be settled in Shares, at the expiration of the Restricted Period, share certificates in respect of the shares
of Common Stock underlying such Restricted Stock Units may, in the Company’s sole discretion, be delivered to the Participant, or
his legal representative, in a number equal to the number of shares of Common Stock underlying the Restricted Stock Units Award. Notwithstanding
anything in the Plan to the contrary, any Restricted Stock or Restricted Stock Units to be settled in Shares (at the expiration of the
Restricted Period, and whether before or after any vesting conditions have been satisfied) may, in the Company’s sole discretion,
be issued in uncertificated form. Further, notwithstanding anything in the Plan to the contrary, with respect to Restricted Stock Units,
at the expiration of the Restricted Period, Shares, or cash, as applicable, shall promptly be issued (either in certificated or uncertificated
form) to the Participant, unless otherwise deferred in accordance with procedures established by the Company in accordance with Section 409A
of the Code, and such issuance or payment shall in any event be made within such period as is required to avoid the imposition of a tax
under Section 409A of the Code.
(c) Restrictions
and Conditions. The Restricted Stock or Restricted Stock Units granted pursuant to this Section 9 shall be subject to
the following restrictions and conditions and any additional restrictions or conditions as determined by the Administrator at the time
of grant or, subject to Section 409A of the Code where applicable, thereafter:
(1) The Administrator may, in its sole discretion,
provide for the lapse of restrictions in installments and may accelerate or waive such restrictions in whole or in part based on such
factors and such circumstances as the Administrator may determine, in its sole discretion, including, but not limited to, the attainment
of certain performance goals, the Participant’s termination of employment or service with the Company or any Affiliate thereof,
or the Participant’s death or Disability. Notwithstanding the foregoing, upon a Change in Control, the outstanding Awards shall
be subject to Section 11 hereof.
(2) Except as provided in the applicable Award Agreement,
the Participant shall generally have the rights of a stockholder of the Company with respect to Restricted Stock during the Restricted
Period; provided, however, that dividends declared during the Restricted Period with respect to an Award, shall only become
payable if (and to the extent) the underlying Restricted Stock vests. Except as provided in the applicable Award Agreement, the Participant
shall generally not have the rights of a stockholder with respect to Shares subject to Restricted Stock Units during the Restricted Period;
provided, however, that, subject to Section 409A of the Code, an amount equal to dividends declared during the Restricted
Period with respect to the number of Shares covered by Restricted Stock Units shall, unless otherwise set forth in an Award Agreement,
be paid to the Participant at the time (and to the extent) Shares in respect of the related Restricted Stock Units are delivered to the
Participant. Certificates for Shares of unrestricted Common Stock may, in the Company’s sole discretion, be delivered to the Participant
only after the Restricted Period has expired without forfeiture in respect of such Restricted Stock or Restricted Stock Units, except
as the Administrator, in its sole discretion, shall otherwise determine.
(3) The rights of Participants granted Restricted Stock
or Restricted Stock Units upon termination of employment or service as a director or independent contractor to the Company or to any Affiliate
thereof terminates for any reason during the Restricted Period shall be set forth in the Award Agreement.
(d) Form of
Settlement. The Administrator reserves the right in its sole discretion to provide (either at or after the grant thereof) that
any Restricted Stock Unit represents the right to receive the amount of cash per unit that is determined by the Administrator in connection
with the Award.
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Section 10.
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Other Stock-Based Awards.
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Other Stock-Based Awards may be issued under the
Plan. Subject to the provisions of the Plan, the Administrator shall have sole and complete authority to determine the individuals to
whom and the time or times at which such Other Stock-Based Awards shall be granted. Each Participant who is granted an Other Stock-Based
Award shall enter into an Award Agreement with the Company, containing such terms and conditions as the Administrator shall determine,
in its sole discretion, including, among other things, the number of shares of Common Stock to be granted pursuant to such Other Stock-Based
Awards, or the manner in which such Other Stock-Based Awards shall be settled (e.g., in shares of Common Stock, cash or other property),
or the conditions to the vesting and/or payment or settlement of such Other Stock-Based Awards (which may include, but not be limited
to, achievement of performance criteria) and all other terms and conditions of such Other Stock-Based Awards. In the event that the Administrator
grants a bonus in the form of Shares, the Shares constituting such bonus shall, as determined by the Administrator, be evidenced in uncertificated
form or by a book entry record or a certificate issued in the name of the Participant to whom such grant was made and delivered to such
Participant as soon as practicable after the date on which such bonus is payable. Notwithstanding anything set forth in the Plan to the
contrary, any dividend or dividend equivalent Award issued hereunder shall be subject to the same restrictions, conditions and risks of
forfeiture as apply to the underlying Award.
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Section 11.
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Change in Control.
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Unless otherwise determined by the Administrator
and evidenced in an Award Agreement, in the event that (a) a Change in Control occurs, and (b) the Participant’s employment
is involuntarily terminated within 24 months following a Change in Control, provided that such termination
does not result from the Participant’s termination for disability, cause or gross misconduct then, the Administrator, in
its sole and absolute discretion, may:
(a) provide that any unvested or unexercisable portion
of any Award carrying a right to exercise become fully vested and exercisable; and
(b) cause the restrictions, deferral limitations, payment
conditions and forfeiture conditions applicable to an Award granted under the Plan to lapse and such Awards shall be deemed fully vested
and any performance conditions imposed with respect to such Awards shall be deemed to be fully achieved at target performance levels.
If the Administrator determines in its discretion
pursuant to Section 3(b)(4) hereof to accelerate the vesting of Options and/or Share Appreciation Rights in connection with
a Change in Control, the Administrator shall also have discretion in connection with such action to provide that all Options and/or Stock
Appreciation Rights outstanding immediately prior to such Change in Control shall expire on the effective date of such Change in Control.
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Section 12.
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Amendment and Termination.
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The Board may amend, alter or terminate the Plan
at any time, but no amendment, alteration or termination shall be made that would impair the rights of a Participant under any Award theretofore
granted without such Participant’s consent. The Board shall obtain approval of the Company’s stockholders for any amendment
that would require such approval in order to satisfy the requirements of any rules of the stock exchange on which the Common Stock
is traded or other Applicable Law. Subject to Section 3(c), the Administrator may amend the terms of any Award theretofore granted,
prospectively or retroactively, but, subject to Section 5 of the Plan and the immediately preceding sentence, no such amendment shall
materially impair the rights of any Participant without his or her consent.
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Section 13.
|
Unfunded Status of Plan.
|
The Plan is intended to constitute an “unfunded”
plan for incentive compensation. With respect to any payments not yet made to a Participant by the Company, nothing contained herein shall
give any such Participant any rights that are greater than those of a general creditor of the Company.
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Section 14.
|
Withholding Taxes.
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Each Participant shall, no later than the date as
of which the value of an Award first becomes includible in the gross income of such Participant for purposes of applicable taxes, pay
to the Company, or make arrangements satisfactory to the Administrator regarding payment of an amount up to the maximum statutory tax
rates in the Participant’s applicable jurisdiction with respect to the Award, as determined by the Company. The obligations of the
Company under the Plan shall be conditional on the making of such payments or arrangements, and the Company shall, to the extent permitted
by Applicable Laws, have the right to deduct any such taxes from any payment of any kind otherwise due to such Participant. Whenever cash
is to be paid pursuant to an Award, the Company shall have the right to deduct therefrom an amount sufficient to satisfy any applicable
withholding tax requirements related thereto. Whenever Shares or property other than cash are to be delivered pursuant to an Award, the
Company shall have the right to require the Participant to remit to the Company in cash an amount sufficient to satisfy any related taxes
to be withheld and applied to the tax obligations; provided, that, with the approval of the Administrator, a Participant
may satisfy the foregoing requirement by either (i) electing to have the Company withhold from delivery of Shares or other property,
as applicable, or (ii) delivering already owned unrestricted shares of Common Stock, in each case, having a value not exceeding the
applicable taxes to be withheld and applied to the tax obligations. Such already owned and unrestricted shares of Common Stock shall be
valued at their Fair Market Value on the date on which the amount of tax to be withheld is determined and any fractional share amounts
resulting therefrom shall be settled in cash. Such an election may be made with respect to all or any portion of the Shares to be delivered
pursuant to an award. The Company may also use any other method of obtaining the necessary payment or proceeds, as permitted by Applicable
Laws, to satisfy its withholding obligation with respect to any Award.
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Section 15.
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Transfer of Awards.
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Until such time as the Awards are fully vested and/or
exercisable in accordance with the Plan or an Award Agreement, no purported sale, assignment, mortgage, hypothecation, transfer, charge,
pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien
on, any Award or any agreement or commitment to do any of the foregoing (each, a “Transfer”) by any holder thereof
in violation of the provisions of the Plan or an Award Agreement will be valid, except with the prior written consent of the Administrator,
which consent may be granted or withheld in the sole discretion of the Administrator. Any purported Transfer of an Award or any economic
benefit or interest therein in violation of the Plan or an Award Agreement shall be null and void ab initio and shall not create
any obligation or liability of the Company, and any Person purportedly acquiring any Award or any economic benefit or interest therein
transferred in violation of the Plan or an Award Agreement shall not be entitled to be recognized as a holder of such Shares or other
property underlying such Award. Unless otherwise determined by the Administrator in accordance with the provisions of the immediately
preceding sentence, an Option or a Stock Appreciation Right may be exercised, during the lifetime of the Participant, only by the Participant
or, during any period during which the Participant is under a legal Disability, by the Participant’s guardian or legal representative.
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Section 16.
|
Continued Employment or Service.
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Neither the adoption of the Plan nor the grant of
an Award shall confer upon any Eligible Recipient any right to continued employment or service with the Company or any Affiliate thereof,
as the case may be, nor shall it interfere in any way with the right of the Company or any Affiliate thereof to terminate the employment
or service of any of its Eligible Recipients at any time.
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Section 17.
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Effective Date.
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The Plan was approved by the Board on August 20,
2021 and shall be adopted and become effective on the date that it is approved by the Company’s stockholders (the “Effective
Date”).
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Section 18.
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Electronic Signature.
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Participant’s electronic signature of an Award
Agreement shall have the same validity and effect as a signature affixed by hand.
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Section 19.
|
Term of Plan.
|
No Award shall be granted pursuant to the Plan on
or after the tenth anniversary of the Effective Date, but Awards theretofore granted may extend beyond that date.
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Section 20.
|
Securities Matters and Regulations.
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(a) Notwithstanding anything herein to the contrary,
the obligation of the Company to sell or deliver Shares with respect to any Award granted under the Plan shall be subject to all Applicable
Laws, rules and regulations, including all applicable federal and state securities laws, and the obtaining of all such approvals
by governmental agencies as may be deemed necessary or appropriate by the Administrator. The Administrator may require, as a condition
of the issuance and delivery of certificates evidencing shares of Common Stock pursuant to the terms hereof, that the recipient of such
shares make such agreements and representations, and that such certificates bear such legends, as the Administrator, in its sole discretion,
deems necessary or advisable.
(b) Each Award is subject to the requirement that, if
at any time the Administrator determines that the listing, registration or qualification of Shares is required by any securities exchange
or under any state or federal law, or the consent or approval of any governmental regulatory body is necessary or desirable as a condition
of, or in connection with, the grant of an Award or the issuance of Shares, no such Award shall be granted or payment made or Shares issued,
in whole or in part, unless listing, registration, qualification, consent or approval has been effected or obtained free of any conditions
not acceptable to the Administrator.
(c) In the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement under the Securities Act and is not otherwise exempt from
such registration, such Shares shall be restricted against transfer to the extent required by the Securities Act or regulations thereunder,
and the Administrator may require a Participant receiving Common Stock pursuant to the Plan, as a condition precedent to receipt of such
Common Stock, to represent to the Company in writing that the Common Stock acquired by such Participant is acquired for investment only
and not with a view to distribution.
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Section 21.
|
Section 409A of the Code.
|
The Plan as well as payments and benefits under the
Plan are intended to be exempt from, or to the extent subject thereto, to comply with Section 409A of the Code, and, accordingly,
to the maximum extent permitted, the Plan shall be interpreted in accordance therewith. Notwithstanding anything contained herein to the
contrary, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, the
Participant shall not be considered to have terminated employment or service with the Company for purposes of the Plan and no payment
shall be due to the Participant under the Plan or any Award until the Participant would be considered to have incurred a “separation
from service” from the Company and its Affiliates within the meaning of Section 409A of the Code. Any payments described in
the Plan that are due within the “short term deferral period” as defined in Section 409A of the Code shall not be treated
as deferred compensation unless Applicable Law requires otherwise. Notwithstanding anything to the contrary in the Plan, to the extent
that any Awards (or any other amounts payable under any plan, program or arrangement of the Company or any of its Affiliates) are payable
upon a separation from service and such payment would result in the imposition of any individual tax and penalty interest charges imposed
under Section 409A of the Code, the settlement and payment of such awards (or other amounts) shall instead be made on the first business
day after the date that is six (6) months following such separation from service (or death, if earlier). Each amount to be paid
or benefit to be provided under this Plan shall be construed as a separate identified payment for purposes of Section 409A of the
Code. The Company makes no representation that any or all of the payments or benefits described in this Plan will be exempt from or comply
with Section 409A of the Code and makes no undertaking to preclude Section 409A of the Code from applying to any such payment.
The Participant shall be solely responsible for the payment of any taxes and penalties incurred under Section 409A.
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Section 22.
|
Notification of Election Under Section 83(b) of the Code.
|
If any Participant shall, in connection with the
acquisition of shares of Common Stock under the Plan, make the election permitted under Section 83(b) of the Code, such Participant
shall notify the Company of such election within ten (10) days after filing notice of the election with the Internal Revenue
Service.
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Section 23.
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No Fractional Shares.
|
No fractional shares of Common Stock shall be issued
or delivered pursuant to the Plan. The Administrator shall determine whether cash, other Awards, or other property shall be issued or
paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.
A Participant may file with the Administrator a written
designation of a beneficiary on such form as may be prescribed by the Administrator and may, from time to time, amend or revoke such designation.
If no designated beneficiary survives the Participant, the executor or administrator of the Participant’s estate shall be deemed
to be the Participant’s beneficiary.
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Section 25.
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Paperless Administration.
|
In the event that the Company establishes, for itself
or using the services of a third party, an automated system for the documentation, granting or exercise of Awards, such as a system using
an internet website or interactive voice response, then the paperless documentation, granting or exercise of Awards by a Participant may
be permitted through the use of such an automated system.
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Section 26.
|
Severability.
|
If any provision of the Plan is held to be invalid
or unenforceable, the other provisions of the Plan shall not be affected but shall be applied as if the invalid or unenforceable provision
had not been included in the Plan.
(a) If the Company is required to prepare a financial
restatement due to the material non-compliance of the Company with any financial reporting requirement, then the Committee may require
any Section 16 Officer to repay or forfeit to the Company, and each Section 16 Officer agrees to so repay or forfeit, that part
of the Incentive Compensation received by that Section 16 Officer during the three-year period preceding the publication of the restated
financial statement that the Committee determines was in excess of the amount that such Section 16 Officer would have received had
such Incentive Compensation been calculated based on the financial results reported in the restated financial statement. The Committee
may take into account any factors it deems reasonable in determining whether to seek recoupment of previously paid Incentive Compensation
and how much Incentive Compensation to recoup from each Section 16 Officer (which need not be the same amount or proportion for each
Section 16 Officer), including any determination by the Committee that a Section 16 Officer engaged in fraud, willful misconduct
or committed grossly negligent acts or omissions which materially contributed to the events that led to the financial restatement. The
amount and form of the Incentive Compensation to be recouped shall be determined by the Committee in its sole and absolute discretion,
and recoupment of Incentive Compensation may be made, in the Committee’s sole and absolute discretion, through the cancellation
of vested or unvested Awards, cash repayment or both.
(b) Notwithstanding any other provisions in this Plan,
any Award which is subject to recovery under any Applicable Laws, government regulation or stock exchange listing requirement, will be
subject to such deductions and clawback as may be required to be made pursuant to such Applicable Law, government regulation or stock
exchange listing requirement (or any policy adopted by the Company pursuant to any such law, government regulation or stock exchange listing
requirement).
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Section 28.
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Governing Law.
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The Plan shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to principles of conflicts of law of such state.
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Section 29.
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Indemnification.
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To the extent allowable pursuant to applicable law,
each member of the Board and the Administrator and any officer or other employee to whom authority to administer any component of the
Plan is designated shall be indemnified and held harmless by the Company from any loss, cost, liability, or expense that may be imposed
upon or reasonably incurred by such member in connection with or resulting from any claim, action, suit, or proceeding to which he or
she may be a party or in which he or she may be a party or in which he or she may be involved by reason of any action or failure to act
pursuant to the Plan and against and from any and all amounts paid by him or her in satisfaction of judgment in such action, suit, or
proceeding against him or her; provided, however, that he or she gives the Company an opportunity, at its own expense, to handle and defend
the same before he or she undertakes to handle and defend it on his or her own behalf. The foregoing right of indemnification shall not
be exclusive of any other rights of indemnification to which such individuals may be entitled pursuant to the Company’s Articles
of Incorporation or Bylaws, as a matter of law, or otherwise, or any power that the Company may have to indemnify them or hold them harmless.
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Section 30.
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Titles and Headings, References to Sections of the Code or Exchange Act.
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The titles and headings of the sections in the Plan
are for convenience of reference only and, in the event of any conflict, the text of the Plan, rather than such titles or headings, shall
control. References to sections of the Code or the Exchange Act shall include any amendment or successor thereto.
The obligations of the Company under the Plan shall
be binding upon any successor corporation or organization resulting from the merger, consolidation or other reorganization of the Company,
or upon any successor corporation or organization succeeding to substantially all of the assets and business of the Company.
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Section 32.
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Relationship to other Benefits.
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No payment pursuant to the Plan shall be taken into
account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare, or other benefit
plan of the Company or any Affiliate except to the extent otherwise expressly provided in writing in such other plan or an agreement thereunder.
APPENDIX B
CERTIFICATE OF AMENDMENT
to the
CERTIFICATE OF INCORPORATION
of
HEPION PHARMACEUTICALS, INC.
HEPION PHARMACEUTICALS, INC.,
a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does
hereby certify as follows:
FIRST: The name of the Corporation
is Hepion Pharmaceuticals, Inc. The Certificate of Incorporation was filed with the Secretary of State of the State of Delaware (the
“Secretary of State”) on May 15, 2013, as amended on May 25, 2018; May 31, 2019; and July 23, 2019 ( the
“Certificate of Incorporation”).
SECOND: ARTICLE IV,
SECTION 1 of the Corporation’s Certificate of Incorporation shall be amended and restated in its entirety to read as follows:
Section 1. Number of Authorized Shares.
The total number of shares of stock which the Corporation shall have the authority to issue shall be [__] ([__]) shares. The Corporation
shall be authorized to issue two classes of shares of stock, designated, “Common Stock” and “Preferred Stock.”
The Corporation shall be authorized to issue [__] ([__]) shares of Common Stock, each share to have a par value of $0.0001 per share,
and Twenty Million (20,000,000) shares of Preferred Stock, each share to have a par value of $0.0001 per share.
THIRD: The stockholders of
the Corporation have duly approved the foregoing amendment in accordance with the provisions of Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation
has caused this Certificate of Amendment to be duly adopted and executed in its corporate name and on its behalf by its duly authorized
officer as of the day of
, 2021.
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HEPION PHARMACEUTICALS, INC.
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By:
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Name:
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Title:
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PROXY CARD
HEPION PHARMACEUTICALS, INC.
PROXY FOR ANNUAL MEETING TO BE HELD ON _____,
2021
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD
OF DIRECTORS
The undersigned hereby appoints, Robert Foster,
Ph.D. and John Cavan, and each of them, as proxies, each with full power of substitution, to represent and to vote all the shares of common
stock of Hepion Pharmaceuticals, Inc. (the “Company”), which the undersigned would be entitled to vote, at the
Company’s Annual Meeting of Stockholders to be held on ____, 2021 and at any adjournments thereof, subject to the directions indicated
on this Proxy Card.
In their discretion, the proxy is authorized to
vote upon any other matter that may properly come before the meeting or any adjournments thereof.
THIS PROXY WILL BE VOTED IN ACCORDANCE WITH THE
SPECIFICATIONS MADE, BUT IF NO CHOICES ARE INDICATED, THIS PROXY WILL BE VOTED FOR THE ELECTION OF ALL NOMINEES AND FOR THE PROPOSALS
LISTED ON THE REVERSE SIDE.
This proxy is governed by the laws of the State
of Delaware.
IMPORTANT—This Proxy must be signed and
dated on the reverse side.
Important Notice Regarding the Availability
of Proxy Materials for the Annual Meeting of Stockholders to Be Held on _____, 2021 at 9:00 am local time at the Company’s offices
located at 399 Thornall Street, First Floor, Edison, NJ 08837. The proxy statement and the 2020 Annual Report on Form 10-K are
available at www.pstvote.com/hepion2021.
THIS IS YOUR PROXY
YOUR VOTE IS IMPORTANT!
Dear Stockholder:
We cordially invite you to attend the Annual Meeting
of Stockholders of Hepion Pharmaceuticals, Inc. to be held at the Company’s offices located at 399 Thornall Street, First Floor,
Edison, NJ 08837, on _____, 2021, beginning at 9:00 a.m. local time.
Please read the proxy statement which describes
the proposals and presents other important information, and complete, sign and return your proxy promptly in the enclosed envelope.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR”
PROPOSALS 1-6
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1. Election of Directors Nominees
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FOR
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WITHHOLD
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01- Gary S. Jacob, Ph.D.
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¨
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¨
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02- Robert Foster, Ph.D.
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¨
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¨
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03- John P. Brancaccio
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¨
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¨
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04- Thomas Adams, Ph.D.
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¨
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¨
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05- Timothy Block, Ph.D.
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¨
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¨
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06- Arnold Lippa, Ph.D.
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¨
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¨
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07- Petrus “Peter” Wijngaard, Ph.D.
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¨
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¨
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2. Proposal to ratify BDO USA, LLP as the Company’s independent registered public accountants for fiscal year ending December 31, 2021.
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FOR
¨
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AGAINST
¨
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ABSTAIN
¨
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3. Proposal to approve the Company’s 2021 Omnibus Equity Incentive Plan.
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FOR
¨
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AGAINST
¨
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ABSTAIN
¨
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4. Proposal to approve the amendment of the Company’s certificate of incorporation, as amended, to increase the number of shares of authorized common stock from 120,000,000 to 240,000,000.
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FOR
¨
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AGAINST
¨
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ABSTAIN
¨
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5. Proposal to approve, on an advisory basis, the compensation of the Company’s named executive officers.
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FOR
¨
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AGAINST
¨
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ABSTAIN
¨
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6. Proposal to recommend, on an advisory basis, a three-year frequency for conducting future stockholder advisory votes on named executive officer compensation.
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1 YEAR
¨
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2 YEARS
¨
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3 YEARS
¨
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ABSTAIN
¨
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Important: Please sign exactly as name appears on this proxy. When
signing as attorney, executor, trustee, guardian, corporate officer, etc., please indicate full title.
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Dated:
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, 2021
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Signature
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Name (printed)
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Title
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VOTING INSTRUCTIONS
You may vote your proxy in the following ways:
Login to www.pstvote.com/hepion2021
Enter your control number (12 digit number located
below)
Philadelphia Stock Transfer, Inc.
2320 Haverford Rd., Suite 230
Ardmore, PA 19003
CONTROL NUMBER:
You may vote by Internet 24 hours a day, 7 days
a week. Internet voting is available through 11:59 p.m.,
prevailing time, on _______, 2021.
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