09/09/2024 | Press release | Distributed by Public on 09/09/2024 21:31
TABLE OF CONTENTS
☒
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Preliminary Proxy Statement
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☐
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Confidential, For Use of the Commission Only (as Permitted by Rule 14a-6(e)(2))
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☐
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Definitive Proxy Statement
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☐
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Definitive Additional Materials
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☐
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Soliciting Material under §240.14a-12
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Chromocell Therapeutics Corporation
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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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☒
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No fee required
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☐
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Fee paid previously with preliminary materials.
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☐
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a6(i)(1) and 0-11.
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1.
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To elect five (5) members of the Company's Board (the "Board"), each to serve until the next annual meeting of the Company's stockholders and until each of their respective successors are elected and qualified or until each of their earlier resignation or removal ("Proposal No. 1");
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2.
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To consider and vote on a proposal to amend the Company's 2023 Equity Incentive Plan (the "2023 Plan") to increase the number of shares of Common Stock, par value $0.0001 per share (the "Common Stock") authorized for issuance thereunder by 1,500,000, from 444,444 shares to 1,944,444 shares ("Proposal No. 2");
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3.
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To consider and vote on a proposal to waive the limit on the number of shares of Common Stock that may be issued to certain shareholders pursuant to the NYSE American LLC (the "NYSE American"), which requires shareholder approval before issuing common stock (or securities convertible into or exercisable for common stock) in a private placement that constitutes 20% or more of the Company's pre-transaction outstanding common stock (the "Exchange Cap") ("Proposal No. 3");
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4.
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To consider and vote on a reincorporation merger of the Company in the State of Nevada with and into a wholly-owned subsidiary of the Company, with a simultaneous name change to "Channel Therapeutics Corporation" (the "Reincorporation Merger") ("Proposal No. 4");
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5.
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To consider and vote on a proposal to ratify the Board's selection of Marcum LLP as the Company's independent registered public accountants for the fiscal year ending December 31, 2024 ("Proposal No. 5"); and
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6.
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To transact such other business as may properly come before the Annual Meeting or any adjournments or postponements thereof.
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Freehold, New Jersey
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By Order of the Board of Directors,
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, 2024
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Francis Knuettel II
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Chief Executive Officer and Chief Financial Officer
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TABLE OF CONTENTS
PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS
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3
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Information Concerning the Proxy Materials and the Annual Meeting
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3
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Voting Procedures and Vote Required
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3
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Delivery of Documents to Stockholders Sharing an Address
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5
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
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6
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ELECTION OF DIRECTORS (Proposal No. 1)
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8
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Vote Required and Recommendation
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9
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CORPORATE GOVERNANCE
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11
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Board of Directors
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11
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Director Independence
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11
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Board Meetings and Attendance
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11
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Annual Meeting Attendance
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11
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Stockholder Communications with the Board
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12
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Committees of Our Board of Directors
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12
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Family Relationships
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13
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Involvement in Certain Legal Proceedings
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13
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Leadership Structure of the Board
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13
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Risk Oversight
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13
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Insider Trading Arrangements and Policies
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13
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Hedging Policy
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14
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Information About Our Executive Officers
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14
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Delinquent Section 16(a) Reports
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14
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DIRECTOR COMPENSATION
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15
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EXECUTIVE OFFICER COMPENSATION
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16
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Summary Compensation Table for Fiscal Years 2023 and 2022
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16
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Employment Agreements
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16
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Outstanding Equity Awards as of December 31, 2023
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18
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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
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19
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Review, Approval or Ratification of Transactions with Related Parties
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22
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AUDIT COMMITTEE REPORT
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23
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Role of the Audit Committee
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23
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APPROVAL OF AMENDMENT TO THE 2023 PLAN (Proposal No. 2)
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24
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Overview
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24
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Summary of the 2023 Plan and Amendment
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24
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Federal Tax Aspects
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27
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Vote Required and Recommendation
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28
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APPROVAL TO WAIVE THE EXCHANGE CAP IN CONNECTION WITH THE CONVERTIBLE NOTE FINANCING AND COMMITTED EQUITY FINANCING (Proposal No. 3)
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30
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Background
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30
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Convertible Note Financing
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30
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Convertible Equity Financing
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30
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NYSE American Requirements and the Necessity of Stockholder Approval
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30
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What is the Effect on Current Stockholders if Proposal No. 3 is Approved?
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31
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What is the Effect on Current Stockholders if Proposal No. 3 is NOT Approved?
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31
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Additional Information
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31
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Vote Required and Recommendation
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31
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APPROVAL OF THE REINCORPORATION MERGER (Proposal No. 4)
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32
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Overview
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32
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Principal Features of the Reincorporation Merger
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32
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Securities Act and Exchange Act Consequences
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33
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Material U.S. Federal Income Tax Consequences
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34
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Accounting Treatment
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35
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Material Terms of the Merger Agreement
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35
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Comparison of Rights under the DGCL and the Chapter 78 of the NRS
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36
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The Charter and Bylaws of the Company Immediately Prior To and Immediately Following the Effective Date of the Reincorporation Merger
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42
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Vote Required and Recommendation
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47
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RATIFICATION OF APPOINTMENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTANTS (Proposal No. 5)
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48
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Fees Paid to Independent Registered Public Accounting Firm
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48
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Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accountant
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48
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Vote Required and Recommendation
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48
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FUTURE STOCKHOLDER PROPOSALS
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50
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EXPENSES AND SOLICITATION
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51
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OTHER BUSINESS
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51
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Other Matters Brought Before the Meeting
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51
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ADDITIONAL INFORMATION
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52
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Stockholders Entitled to Vote
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52
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How to Vote
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52
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If You Are a Registered Holder of Common Stock
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52
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Revocability of Proxies
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52
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Information Regarding the Company
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52
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Notice Regarding the Availability of Proxy Materials
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52
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INCORPORATION OF DOCUMENTS BY REFERENCE
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53
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APPENDIX A - FORM OF AMENDMENT TO THE 2023 PLAN
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A-1
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APPENDIX B - FORM OF AGREEMENT AND PLAN OF MERGER
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B-1
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APPENDIX C - FORM OF NEVADA ARTICLES OF INCORPORATION
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C-1
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APPENDIX D - FORM OF NEVADA SERIES C CERTIFICATE OF DESIGNATION
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D-1
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APPENDIX E - FORM OF NEVADA BYLAWS
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E-1
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PROXY CARD
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0
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Shares Beneficially Owned
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Shares of
Common Stock
Beneficially
Owned
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Percentage
of
Common
Stock
Beneficially
Owned
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Name of and Address of Beneficial Owner(1):
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Directors and executive officers
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Francis Knuettel II(2)
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202,016
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3.4%
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Ezra Friedberg(3)
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557,118
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9.6%
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Todd Davis(4)
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90,853
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1.6%
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Richard Malamut(5)
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19,732
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*%
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Chia-Lin Simmons(6)
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22,919
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*%
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Eric Lang(7)
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25,570
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*%
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All executive officers and directors as a group (6 persons)
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918,208
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15.9%
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5% or greater stockholders:
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Chromocell Corporation(8)
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1,093,854
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19.0%
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Boswell Prayer Ltd(9)
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471,592
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8.2%
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Motif Pharmaceuticals Ltd.(10)
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483,406
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8.4%
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Balmoral Financial Group LLC(11)
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520,719
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9.0%
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AME Equities LLC(12)
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369,178
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6.4%
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Aperture Healthcare Ventures Ltd.(13)
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444,071
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7.7%
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Benuvia Operations, LLC ("Benuvia")(14)
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384,226
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6.7%
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||||
*
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Less than 1%
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(1)
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Except as otherwise indicated, the persons named in the table above have sole voting and investment power with respect to all shares of Common Stock shown as beneficially owned by them.
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(2)
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For Mr. Knuettel, includes 20,007 shares of Common Stock underlying stock options that are currently exercisable or exercisable within 60 days of September 6, 2024 which are exercisable for shares of Common Stock at a price of $22.68 per share, 2,778 shares of Common Stock underlying stock options that are currently exercisable or exercisable within 60 days of September 6, 2024 for shares of Common Stock at a price of $6.00 per share, 27,778 shares of Common Stock underlying stock options that are currently exercisable or exercisable within 60 days of September 6, 2024 for shares of Common Stock at a price of $1.30 per share and 40,500 shares of Common Stock underlying stock options that are currently exercisable or exercisable within 60 days of September 6, 2024 for shares of Common Stock at
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(3)
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For Mr. Friedberg, includes 11,669 shares of Common Stock issuable upon the exercise stock options held by Mr. Friedberg, which are exercisable for shares of Common Stock at a price of $22.68 per share, 8,063 shares of Common Stock issuable upon the exercise of Restricted Stock Units ("RSUs") held by Mr. Friedberg and 16,667 shares purchased by Mr. Friedberg in connection with the closing of the IPO. In addition, Mr. Friedberg serves as a manager of Balmoral Financial Group LLC ("Balmoral").
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(4)
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For Mr. Davis, includes 23,338 shares of Common Stock issuable upon the exercise of stock options held by Mr. Davis, which are exercisable for shares of Common Stock at a price of $22.68 per share, 22,223 shares of Common Stock issuable upon the exercise of stock options held by Mr. Davis, which are exercisable for shares of Common Stock at a price of $22.68 per share, 16,125 shares of Common Stock issuable upon the exercise of RSUs held by Mr. Davis and an additional 29,167 shares of Common Stock issued in a private placement in full satisfaction of the Company's obligations under the Director Note.
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(5)
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For Dr. Malamut, includes 11,669 shares of Common Stock issuable upon the exercise of stock options held by Dr. Malamut, which are exercisable for shares of Common Stock at a price of $22.68 per share and 8,063 shares of Common Stock issuable upon the exercise of RSUs held by Dr. Malamut.
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(6)
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For Ms. Simmons, includes 11,669 shares of Common Stock issuable upon the exercise of stock options held by Ms. Simmons, which are exercisable for shares of Common Stock at a price of $22.68 per share and 11,250 shares of Common Stock issuable upon the exercise of stock options held by Ms. Simmons, which are exercisable for shares of Common Stock at a price of $1.30 per share.
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(7)
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For Dr. Lang, includes 9,320 shares of Common Stock issuable upon the exercise of stock options held by Dr. Lang, which are exercisable for shares of Common Stock at a price of $22.68 per share and 16,250 shares of Common Stock issuable upon the exercise of stock options held by Dr. Lang, which are exercisable for shares of Common Stock at a price of $1.30 per share.
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(8)
|
For Chromocell Corporation, number of shares of Common Stock beneficially owned as confirmed by management on September 6, 2024. The number of shares of Common Stock beneficially owned includes 346,667 shares of Common Stock issuable upon the conversion of 2,600 shares of Series C Preferred Stock at $7.50 per share, or 125% of the price per share issued upon the closing of the IPO (an "IPO Share"), based on the IPO price per IPO Share of $6.00. Christian Kopfli has sole voting and dispositive power over the shares held by Chromocell Corporation. The principal executive office of Chromocell Corporation is 685 US Highway One, North Brunswick, NJ 08902.
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(9)
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Number of shares of Common Stock beneficially owned is based on a Statement on Schedule 13G filed by Boswell Prayer Ltd on March 4, 2024 (the "Boswell 13G") reporting that, as of February 21, 2024, (i) Boswell Prayer Ltd beneficially owned 471,592 shares of Common Stock and had shared voting and dispositive power over 471,592 shares of Common Stock. Based on the information provided in the Boswell 13G, the principal executive office of Boswell Prayer Ltd. is 145 Adelaide Street West, Toronto ON M5H 4E5, Canada.
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(10)
|
Number of shares of Common Stock beneficially owned is based on a Statement on Schedule 13G filed by Motif Pharmaceuticals on March 1, 2024 (the "Motif 13G") reporting that, as of February 21, 2024, Motif Pharmaceuticals Ltd. directly owned and had sole voting and dispositive power over 483,406 shares of Common Stock and beneficially owned 483,406 shares of Common Stock. Based on the information provided in the Motif 13G, the principal executive office of Motif Pharmaceuticals Ltd. is 25 and 28 North Wall Quay, Dublin 1, Ireland.
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(11)
|
Ezra Friedberg has sole voting and dispositive power over the shares held by Balmoral. Number of shares of Common Stock beneficially owned is based on a Statement on Schedule 13D filed by Mr. Friedberg and Balmoral on March 1, 2024 (the "Balmoral 13D") reporting that, as of February 21, 2024, (i) Balmoral beneficially owned 520,719 shares of Common Stock and had shared voting and dispositive power over 520,719 shares of Common Stock; and (ii) Mr. Friedberg directly owned and had sole voting and dispositive power over 52,002 shares of Common Stock, beneficially owned 545,721 shares of Common Stock and had shared voting and dispositive power over 520,719 shares of Common Stock. Based on the information provided in the Balmoral 13D, the principal executive office of Balmoral is 106 Old Court Road, Suite 202, Baltimore, MD 21208.
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(12)
|
Number of shares of Common Stock beneficially owned is based on a Statement on Schedule 13G filed by AME Equities LLC on March 1, 2024 (the "AME 13G") reporting that, as of February 21, 2024, AME Equities LLC beneficially owned 369,177 shares of Common Stock and had shared voting and dispositive power over 369,177 shares of Common Stock. Based on the information provided in the AME 13G, the principal executive office of AME Equities LLC is 3012 Luke Crossing Drive, Charlotte, NC 28226.
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(13)
|
Number of shares of Common Stock beneficially owned as confirmed by management on September 6, 2024. The principal executive office of Aperture Healthcare Ventures Ltd. is 970 Lawrence Ave W. Suite 904, Toronto, ON M6A 3B6, Canada.
|
(14)
|
Number of shares of Common Stock beneficially owned is based on a Statement on Schedule 13G filed by Benuvia on March 1, 2024 (the "Benuvia 13G") reporting that, as of February 21, 2024, Benuvia beneficially owned 384,226 shares of Common Stock and had shared voting and dispositive power over 384,226 shares of Common Stock. Based on the information provided in the Benuvia 13G, the principal executive office of Benuvia is 3950 N. Mays Street Round Rock, TX 78665.
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Name of Director
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Age
|
Director Since
|
||||
Todd Davis
|
62
|
2023
|
||||
Ezra Friedberg
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53
|
2021
|
||||
Francis Knuettel II
|
58
|
2024
|
||||
Richard Malamut
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64
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2023
|
||||
Chia-Lin Simmons
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50
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2023
|
||||
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•
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our accounting and financial reporting processes, including our financial statement audits and the integrity of our financial statements;
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•
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our compliance with legal and regulatory requirements;
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•
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reviewing and approving related person transactions;
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•
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selecting and hiring our registered independent public accounting firm;
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•
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the qualifications, independence and performance of our independent auditors; and
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•
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the preparation of the audit committee report to be included in our annual proxy statement.
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•
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evaluating, recommending, approving and reviewing executive officer and director compensation arrangements, plans, policies and programs;
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•
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administering our cash-based and equity-based compensation plans; and
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•
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making recommendations to our Board regarding any other board of director responsibilities relating to executive compensation.
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•
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identifying, considering and recommending candidates for membership on our Board;
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•
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overseeing the process of evaluating the performance of our Board; and
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•
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advising our Board on other corporate governance matters.
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Name
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Age
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Position
|
||||
Francis Knuettel II
|
58
|
Chief Executive Officer, Chief Financial Officer, Treasurer and Secretary
|
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Eric Lang
|
62
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Chief Medical Officer
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Name
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Fees
Earned
or Paid
in
Cash
($)
|
Stock
Awards
($)
|
Stock
Option
Awards
($)(1)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
Nonqualified
Deferred
Compensation
Earnings
($)
|
All Other
Compensation
($)
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Total
($)
|
||||||||||||||
Todd Davis
|
-
|
-
|
748,038
|
-
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-
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-
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748,038
|
||||||||||||||
Ezra Friedberg
|
-
|
-
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374,019
|
-
|
-
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-
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374,109
|
||||||||||||||
Richard Malamut
|
-
|
-
|
374,019
|
-
|
-
|
-
|
374,019
|
||||||||||||||
Chia-Lin Simmons
|
-
|
-
|
336,606
|
-
|
-
|
-
|
336,606
|
||||||||||||||
(1)
|
Amounts reflect the aggregate grant date fair value of the stock options granted to each named executive officer during the fiscal year ended December 31, 2022 and 2023, as computed in accordance with Financial Accounting Standards Board ASC 718.
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•
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Mr. Christian Kopfli, our former Chief Executive Officer and former Chief Strategy Officer;
|
•
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Mr. Francis Knuettel II, our Chief Executive Officer, Chief Financial Officer, Treasurer and Secretary; and
|
•
|
Mr. Eric Lang, our Chief Medical Officer.
|
Name and
Principal Position
|
Year
|
Salary
|
Bonus
|
Option
Awards
|
Non-Equity
Incentive
Plan
Compensation
|
All Other
Compensation
|
Total
|
||||||||||||||
Christian Kopfli
Former Chief Executive Officer, Former Chief Strategy Officer, and Former Vice Chairman(2)
|
2023
|
$11,280(1)
|
-
|
$2,489
|
-
|
-
|
$13,769
|
||||||||||||||
2022
|
$158,654(1)
|
-
|
$622
|
-
|
-
|
$159,276
|
|||||||||||||||
Francis Knuettel II
Chief Executive Officer and Chief Financial Officer
|
2023
|
$107,500
|
-
|
$2,489
|
-
|
-
|
$109,989
|
||||||||||||||
2022
|
$30,000
|
-
|
$622
|
-
|
-
|
$30,622
|
|||||||||||||||
Eric Lang(3)
Chief Medical Officer
|
2023
|
$166,767
|
-
|
$1,507
|
-
|
-
|
$168,274
|
||||||||||||||
2022
|
$-
|
-
|
$-
|
-
|
-
|
$-
|
|||||||||||||||
(1)
|
Represents the portion of Mr. Kopfli's salary attributable to his services to the Company during the years ended December 31, 2023 and 2022.
|
(2)
|
Mr. Kopfli stepped down as Chief Financial Officer with the hiring of Mr. Knuettel, effective June 10, 2022. In addition, in July 2023, Mr. Knuettel assumed the role of Interim Chief Executive Officer and stepped down as Chief Strategy Officer, and Mr. Kopfli was appointed Vice Chairman and Chief Strategy Officer. On December 1, 2023, the Company terminated Mr. Kopfli as Vice Chairman and Chief Strategy Officer.
|
(3)
|
Represents the portion of Mr. Lang's salary attributable to his services to the Company during the year ended December 31, 2023. Mr. Lang was appointed Chief Medical Officer of the Company, effective May 15, 2023.
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Option Awards
|
Stock Awards
|
||||||||||||||||||||||||||
Name and
Principal
Position
|
Number of
Securities
Underlying
Unexercised
Options
Exercisable
|
Number of
Securities
Underlying
Unexercised
Options
Unexercisable
|
Equity
Incentive
Plan
Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options
|
Option
Exercise
Price
|
Option
Expiration
Date
|
Number
of
Shares
or Units
of Stock
Unvested
|
Market
Value
of
Shares
of Units
of Stock
Unvested
|
Equity
Incentive
Plan
Awards:
Number
of
Unearned
Unvested
Shares
|
Equity
Incentive
Plan
Awards:
Market
or
Payout
Value of
Unearned
Unvested
Shares
|
||||||||||||||||||
Former Chief Executive Officer
|
100,000
|
100,000
|
-
|
2.52
|
9/30/2032
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Chief Executive Officer and Chief Financial Officer
|
100,000
|
375,000
|
-
|
2.52
|
9/30/2032
|
-
|
-
|
-
|
-
|
||||||||||||||||||
Eric Lang
Chief Medical Officer
|
36,333
|
181,667
|
-
|
2.52
|
05/15/2033
|
-
|
-
|
-
|
-
|
||||||||||||||||||
(1)
|
Mr. Kopfli stepped down as Chief Financial Officer with the hiring of Mr. Knuettel, effective June 10, 2022. In addition, in July 2023, Mr. Knuettel assumed the role of Interim Chief Executive Officer and stepped down as Chief Strategy Officer, and Mr. Kopfli was appointed Vice Chairman and Chief Strategy Officer. On December 1, 2023, the Company terminated Mr. Kopfli as Vice Chairman and Chief Strategy Officer.
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(i)
|
the Company has utilized all the shares available for Awards under the 2023 Plan as of June 28, 2024, and as a result, there are no shares currently available for grant under the 2023 Plan; and
|
(ii)
|
Previous long-term stock option Awards have, in large part, become fully vested. We face increasing competition from the industry in which we operate to retain our talented and experienced staff and add staff as appropriate. We believe that the additional flexibility to make additional Awards under the 2023 Plan will be effective for retention of and incentive compensation to such individuals.
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•
|
incentive and nonqualified stock options to purchase shares of our Common Stock;
|
•
|
stock appreciation rights, whether settled in cash or our Common Stock;
|
•
|
direct awards or sales of shares of our Common Stock, with or without restrictions; and
|
•
|
restricted stock units.
|
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•
|
Our corporate name will change from "Chromocell Therapeutics Corporation" to "Channel Therapeutics Corporation."
|
•
|
Each outstanding share of Chromocell Common Stock will be converted into one share of common stock, par value $0.0001 per share, of Channel-NV ("Channel-NV Common Stock");
|
•
|
Each outstanding share of Chromocell -Series C Convertible Redeemable Preferred Stock will be converted into one share of Series C Convertible Redeemable Preferred Stock, par value $0.0001 per share, of Channel-NV ("Channel-NV Series C Preferred Stock");
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•
|
Each outstanding share of Chromocell Common Stock and Chromocell Series C Preferred Stock held by a Chromocell stockholder will be retired and canceled, and will cease to exist;
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•
|
Each outstanding option to purchase shares of Chromocell Common Stock will be deemed to be an option to purchase the same number of shares of Channel-NV Common Stock, with no change in the exercise price or other terms or provisions of such option; and
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•
|
Each outstanding warrant to purchase shares of Chromocell Common Stock will be deemed to be a warrant to purchase the same number of shares of Channel-NV Common Stock, with no change in the exercise price or other terms or provisions of such warrant.
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A Chromocell stockholder will not recognize any gain or loss as a result of the receipt of the applicable shares of Channel-NV capital stock in exchange for such stockholders' shares of Chromocell capital stock in connection with the effectiveness of the Reincorporation Merger;
|
•
|
A Chromocell stockholder's aggregate tax basis in the Channel-NV shares of capital stock received in connection with effectiveness of the Reincorporation Merger will equal such stockholder's aggregate tax basis in the Chromocell shares of capital stock held by such stockholder immediately prior to the Reincorporation Merger; and
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•
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A Chromocell stockholder's tax holding period for the Channel-NV shares of capital stock received in in connection with effectiveness of the Reincorporation Merger will include the period during which such stockholder held Chromocell shares of capital stock.
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Chromocell will merge with and into Channel-NV; and
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•
|
Chromocell will cease to exist and Channel-NV will continue as the surviving corporation under the name "Channel Therapeutics Corporation".
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Provisions
|
Nevada
|
Delaware
|
||||
Corporate Name
|
Channel Therapeutics Corporation
|
Chromocell Therapeutics Corporation
|
||||
Charter regarding increase and/or decrease of authorized capital stack
|
The Nevada Articles of Incorporation provide that, subject to the rights of the holders of any series of Channel-NV preferred stock pursuant to a certificate of designation currently in effect establishing such series of preferred stock in accordance with the NRS and any provision of the NRS requiring otherwise, the number of authorized shares of any of the Channel-NV capital stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the vote required by the holders of such Channel-NV capital stock pursuant to the Nevada Bylaws.
|
The Certificate of Incorporation provides that, subject to the rights of the holders of any series of Preferred Stock, the number of authorized shares of any of the Common Stock or Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority in voting power of the capital stock of the Company entitled to vote thereon.
|
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Charter regarding voting
|
The Nevada Articles of Incorporation provide that holders of shares of Channel-NV Common Stock will not be entitled to vote on any amendment to the Nevada Articles of Incorporation (including any certificate of designation for any Channel-NV preferred stock) that relates solely to the terms of one or more outstanding series of Channel-NV preferred stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to the Nevada Articles of Incorporation (including any certificate of designation for any Channel-NV preferred stock) or the NRS.
|
The Certificate of Incorporation provides that the holders of Common Stock shall not be entitled to vote on an amendment to the Certificate of Incorporation (including any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together as a class with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation or the DGCL.
|
||||
Charter regarding distributions to holders of Common Stock
|
The Nevada Articles of Incorporation provide that subject to the rights of the holders of any series of Channel-NV preferred stock, holders of shares of Channel-NV Common Stock will be entitled to receive (i) such dividends and distributions and other distributions in cash, stock or property of the Company when, as and if declared thereon by the Board from time to time out of assets or funds of the Company legally available therefor; and (ii) the assets
|
The Certificate of Incorporation provides that subject to the rights of the holders of Preferred Stock, holders of shares of Common Stock shall be entitled to receive such dividends and distributions and other distributions in cash, stock or property of the Corporation when, as and if declared thereon by the Board from time to time out of assets or funds of Chromocell legally available therefor.
|
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|
Nevada
|
Delaware
|
||||
and funds of the Company available for distribution in the event of any liquidation, dissolution or winding up of the affairs of the Company, whether voluntary or involuntary ("Liquidation"), which Liquidation, will not be deemed to be occasioned by or to include any consolidation or merger of the Company with or into any other person or a sale, lease, exchange or conveyance of all or a part of its assets.
|
||||||
Charter regarding amendment of Bylaws
|
The Nevada Articles of Incorporation provide that the Board may make, amend, and repeal the Nevada Bylaws (except as specified in any such Nevada Bylaw so made or amended) or by the stockholders in the manner provided in the Nevada Bylaws.
|
The Certificate of Incorporation provides that any adoption, amendment or repeal of the Bylaws by the Board shall require the approval of a majority of the authorized number of directors. The stockholders shall also have power to adopt, amend or repeal the Bylaws; provided, however, that, in addition to any vote of the holders of any class or series of stock of Chromocell required by law or by this Certificate of Incorporation, such action by stockholders shall require the affirmative vote of the holders of at least a majority of the voting power of all of the then-outstanding shares of the capital stock of Chromocell entitled to vote generally in the election of directors, voting together as a single class.
|
||||
Charter regarding limitation of liability
|
The Nevada Articles of Incorporation provide that to the full extent permitted by the NRS and any other applicable law currently or thereafter in effect, no director or officer of the Company will be personally liable to the Company or its stockholders for or with respect to any breach of fiduciary duty or other act or omission as a director. Any repeal or modification of this provision will not adversely affect the protection of any director provided thereby in relation to any breach of fiduciary duty or other act or omission as a director occurring prior to the effectiveness of such repeal or modification. If any provision of the NRS is amended to authorize corporate action further eliminating
|
The Certificate of Incorporation provides that to the fullest extent permitted by applicable law, the Company is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of Chromocell (and any other persons to which applicable law permits Chromocell to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise in excess of the indemnification and advancement otherwise permitted by such applicable law. If applicable law is amended after approval by the stockholders to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of
|
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Provisions
|
Nevada
|
Delaware
|
||||
or limiting the personal liability of directors, then the liability of directors will be eliminated or limited to the fullest extent permitted by the NRS, as so amended.
|
a director to Chromocell shall be eliminated or limited to the fullest extent permitted by applicable law as so amended.
|
|||||
Charter regarding forum adjudication for disputes
|
The Nevada Articles of Incorporation provide that unless the Company consents in writing to the selection of an alternative forum, (a) the Second Judicial District Court, in and for the State of Nevada, located in Washoe County, Nevada, will, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of the Company, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or stockholder of the Company to the Company or to the Company's stockholders, or (iii) any action, suit or proceeding arising pursuant to any provision of the NRS or the Nevada Bylaws or the Nevada Articles of Incorporation (as either may be amended and/or restated from time to time); and (b) subject to the preceding provisions thereof, the federal district courts of the United States of America will be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act or the Exchange Act.
|
The Certificate of Incorporation provides that unless Chromocell consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, if and only if the Court of Chancery of the State of Delaware lacks subject matter jurisdiction, any state court located within the State of Delaware or, if and only if all such state courts lack subject matter jurisdiction, the federal district court for the District of Delaware) and any appellate court therefrom shall be the sole and exclusive forum for the following claims or causes of action under the Delaware statutory or common law: (i) any derivative claim or cause of action brought on behalf of the Corporation; (ii) any claim or cause of action for breach of a fiduciary duty owed by any current or former director, officer or other employee of Chromocell to Chromocell or Chromocell's stockholders; (iii) any claim or cause of action against Chromocell or any current or former director, officer or other employee of Chromocell, arising out of or pursuant to any provision of the DGCL, this Certificate of Incorporation or the Bylaws (as each may be amended from time to time); (iv) any claim or cause of action seeking to interpret, apply, enforce or determine the validity of this Certificate of Incorporation or the Bylaws (as each may be amended from time to time, including any right, obligation or remedy thereunder); (v) any claim or cause of action as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware; and (vi) any claim or cause of action against Chromocell or any current or former director, officer or other employee of Chromocell governed by the internal-affairs doctrine or otherwise related to Chromocell's internal affairs, in all cases to the fullest
|
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|
Nevada
|
Delaware
|
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extent permitted by law and subject to the court having personal jurisdiction over the indispensable parties named as defendants.
|
||||||
Charter regarding inapplicability of combinations with interested stockholders statutes
|
The Nevada Articles of Incorporation provide that if the Company becomes a "resident domestic corporation" (as defined in NRS Section 78.427), the Company expressly elects that it will not be subject to, or governed by, any of the provisions in NRS Sections 78.411 through 78.444 (Combinations with Interested Stockholders), inclusive, as may be amended from time to time, and Sections 78.378 through 78.3793 (Acquisition of Controlling Interest), inclusive, as may be amended from time to time, or any successor statutes.
|
The Certificate of Incorporation does not contain a corresponding provision.
|
||||
Bylaws regarding voting
|
The Nevada Bylaws provide that at all meetings of the Company's stockholders, other than for the approval of the election of directors, all other matters or questions shall, unless otherwise provided by applicable law, the Nevada Articles of Incorporation or the Nevada Bylaws, be decided by a majority of all of the votes cast by the holders of shares of stock entitled to vote thereon.
|
The Bylaws provide that at all meetings of the Company's stockholders, other than for the approval of the election of directors, all other elections and questions shall, unless otherwise provided by law, the Certificate of Incorporation or these Bylaws, be decided by the vote of the holders of shares of Common Stock having a majority of the votes present which could be cast by the holders of all shares of stock outstanding and entitled to vote thereon.
|
||||
Bylaws regarding action by written consent of stockholders
|
The Nevada Bylaws provide that unless otherwise restricted by the Nevada Articles of Incorporation, any action required or permitted to be taken at any annual or special meeting of the Company's stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of a majority of the outstanding stock of the Company entitled to vote thereon and shall be delivered to the Company.
|
The Bylaws provide that no action shall be taken by the stockholders except at an annual or special meeting of stockholders called in accordance with these Bylaws.
|
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|
Nevada
|
Delaware
|
||||
Bylaws regarding stockholder meetings through electronic communications
|
The Nevada Bylaws provide that unless otherwise required by applicable law or the Nevada Articles of Incorporation, stockholders may participate in a meeting of the stockholders by any means of electronic communications, videoconferencing, teleconferencing or other available technology permitted under the NRS and utilized by the Company.
|
The Bylaws provide that no action shall be taken by the stockholders by written consent or electronic transmission.
|
||||
Charter/Bylaws regarding indemnification
|
The Nevada Articles of Incorporation provide an indemnification section, which sets forth the terms and procedures regarding the right to indemnification by a director, officer, employee, agent or other Indemnitee (as defined in the Nevada Articles of Incorporation). The Nevada Bylaws do not contain a corresponding provision.
|
The Certificate of Incorporation and Bylaws provide an indemnification section set forth the terms and procedures regarding the right to indemnification by a director, officer, employee, agent or other Indemnitee (as defined in the Certificate of Incorporation).
|
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2023
|
2022
|
|||||
Audit fees(1)
|
$164,229
|
$387,030
|
||||
Audit-related fees(2)
|
156,346
|
12,051
|
||||
Tax fees(3)
|
-
|
-
|
||||
All other fees(4)
|
43,490
|
-
|
||||
Total
|
$364,065
|
$399,081
|
||||
(1)
|
"Audit fees" include fees for professional services rendered in connection with the audit of our annual financial statements, review of our quarterly condensed financial statements and advisory services on accounting matters that were addressed during the annual audit and quarterly review. This category also includes fees for services that were incurred in connection with statutory and regulatory filings or engagements, such as consents and review of documents filed with the SEC.
|
(2)
|
"Audit-related fees" include fees billed for professional services rendered that are reasonably related to the performance of the audit or review of our financial statements including subscription for the online library of accounting research literature and are not reported under "Audit Fees".
|
(3)
|
Tax fees" include fees for tax compliance. Tax compliance fees encompass a variety of permissible services, including technical tax advice related to federal and state income tax matters, and assistance with tax audits.
|
(4)
|
"All other fees" include fees for the bring down and comfort letters associated with the IPO as well as work done in evaluating the Contribution Agreement.
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our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 16, 2024;
|
•
|
our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2024, filed with the SEC on May 15, 2024;
|
•
|
our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2024, filed with the SEC on August 13, 2024;
|
•
|
our Current Reports on Form 8-K filed with the SEC on February 22, 2024, March 18, 2024, March 21, 2024, April 9, 2024 and July 29, 2024; and
|
•
|
our registration statement on Form 8-A filed with the SEC on February 15, 2024, including any amendments or reports filed for the purpose of updating such description and (ii) Exhibit 4.2 - Description of the Registrant's Securities Registered Pursuant to Section 12 of the Exchange Act, to our Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 16, 2024.
|
, 2024
|
By Order of the Board of Directors,
|
||
Francis Knuettel II
|
|||
Chief Executive Officer and President,
Chief Financial Officer, Treasurer and Secretary
|
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CHROMOCELL THERAPEUTICS CORPORATION,
|
CHANNEL THERAPEUTICS CORPORATION
|
||||||||
a Delaware corporation
|
a Nevada corporation
|
||||||||
By:
|
By:
|
||||||||
Francis Knuettel II, President
|
Francis Knuettel II, President
|
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CHANNEL THERAPEUTICS CORPORATION
|
|||
By:
|
|||
Name: Francis Knuettel II
|
|||
Title: Chief Executive Officer and Chief Financial Officer
|
|||
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Date of Conversion:
|
||||||
Aggregate number of Preferred Shares to be converted:
|
||||||
Aggregate Stated Value of such Preferred Shares to be converted:
|
||||||
Aggregate accrued and unpaid Dividends and accrued and unpaid Late Charges with respect to such Preferred Shares and such Aggregate Dividends to be converted:
|
||||||
AGGREGATE CONVERSION AMOUNT TO BE CONVERTED:
|
||||||
Please confirm the following information:
|
||||||
Conversion Price:
|
||||||
Number of shares of Common Stock to be issued:
|
||||||
Please issue the Common Stock into which the applicable Preferred Shares are being converted to Holder, or for its benefit, as follows:
|
||||||
☐ Check here if requesting delivery as a certificate to the following name and to the following address:
|
||||||
Issue to:
|
||||||
☐ Check here if requesting delivery by Deposit/Withdrawal at Custodian as follows:
|
||||||
DTC Participant:
|
||||||
DTC Number:
|
||||||
Account Number:
|
||||||
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|
||||||||||||
Name of Registered Holder
|
||||||||||||
By:
|
||||||||||||
Name:
|
||||||||||||
Title:
|
||||||||||||
Tax ID:
|
||||||||||||
Facsimile:
|
||||||||||||
E-mail Address:
|
||||||||||||
[]
|
|||
By:
|
|||
Name:
|
|||
Title:
|
|||
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Name: Francis Knuettel II
|
|||
Title: Chief Executive Officer & Chief Financial Officer
|
|||
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