Allarity Therapeutics, Inc PRE 14A, filed Feb 24, 2023
Allarity Therapeutics, Inc. (ALLR)
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
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
☒ Preliminary Proxy Statement
☐ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☐ Definitive Proxy Statement
☐ Definitive Additional Materials
☐ Soliciting Material under §240.14a-12
ALLARITY THERAPEUTICS, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement if Other Than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
☒ No fee required.
☐ Fee paid previously with preliminary materials.
☐ Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.
PRELIMINARY PROXY STATEMENT-SUBJECT TO COMPLETION
24 School Street, 2nd Floor
Boston, Massachusetts 02108
Dear Stockholders:
You are cordially invited to attend our virtual Special Meeting of Stockholders of Allarity Therapeutics, Inc. (the “Special Meeting”). The Special Meeting will be held on Monday, March 20, 2023, at 1:00 p.m. Eastern Time.
As we believe that a virtual meeting format expands stockholder access and participation and improves communications, the Special Meeting will be held in a virtual meeting format only.
You or your proxyholder will be able to attend the Special Meeting, vote, and submit your questions during the meeting only via live audio webcast by visiting https://meetnow.global/MRJXJMN. To participate in the meeting, you will need to review the information included on the accompanying proxy statement (the “Proxy Statement”) or on your proxy card that we have mailed to you. You will not be able to attend the meeting in person.
The accompanying notice of the Special Meeting (the “Notice of Special Meeting”) and the Proxy Statement have been made part of this invitation. Details regarding the Special Meeting and the business to be conducted at the Special Meeting are more fully described in the accompanying Notice of Special Meeting and Proxy Statement. You are entitled to vote at our Special Meeting and any adjournments, continuations or postponements only if you were a stockholder as of March 3, 2023 entitled to vote as of such date, as described in the accompanying Proxy Statement. Notwithstanding the foregoing, holders of our outstanding shares of Series C Convertible Redeemable Preferred Stock will only be entitled to vote on Proposal 1 and Proposal 2.
Your vote is very important, regardless of the number of shares of our voting securities that you own. Whether or not you expect to attend the Special Meeting online, please vote as promptly as possible by following the instructions in the accompanying Proxy Statement to ensure your representation and the presence of a quorum at the Special Meeting.
Details regarding logging onto and attending the virtual meeting over the website and the business to be conducted at the Special Meeting are described in the accompanying Notice of Special Meeting and Proxy Statement. Whether or not you attend the Special Meeting, it is important that your shares be represented and voted at the Special Meeting. After reading the Proxy Statement, even if you intend to attend the Special Meeting, we ask that you please promptly vote via the Internet or by telephone, or please promptly submit your proxy by dating, signing, and returning the enclosed proxy card in the enclosed postage-prepaid envelope, to ensure that your votes are counted. If you vote via the Internet, vote by telephone, or submit your proxy card, you can still attend the Special Meeting virtually. Please review the instructions on each of your voting options described in the accompanying Proxy Statement.
If your shares are held in the name of a broker, trust, bank or other nominee, and you receive these materials through your broker or through another intermediary, please complete and return the materials in accordance with the instructions provided to you by such broker or other intermediary, or you may also virtually attend the Special Meeting and vote online during the Special Meeting.
The Board of Directors and management of Allarity Therapeutics, Inc. look forward to your attendance at the Special Meeting.
| By Order of the Board of Directors, | |
| Boston, Massachusetts | Gerald McLaughlin |
| March [●], 2023 | Chairman of the Board |
24 School Street, 2nd Floor
Boston, Massachusetts 02108
Notice of Special Meeting of Stockholders
To Be Held on March 20, 2023
Dear Stockholders:
Notice is hereby given that the Special Meeting of Stockholders of Allarity Therapeutics, Inc., a Delaware corporation (the “Special Meeting”), will be held on Monday, March 20, 2023, at 1:00 p.m. Eastern Time and it will be a completely virtual meeting of stockholders via live audio webcast at https://meetnow.global/MRJXJMN. Only stockholders of record of our outstanding shares of Common Stock and Series C Convertible Redeemable Preferred Stock (“Series C Preferred Stock”) on March 3, 2023 (the “Record Date”) will be entitled to vote at the Special Meeting and any adjournments, continuations or postponements thereof that may take place. Holders of our shares of Common Stock will be entitled to vote on all matters presented. Holders of the Series C Preferred Stock will only be entitled to vote on Proposal 1 (Share Increase Proposal) and Proposal 2 (Reverse Stock Split Proposal). We are holding the Special Meeting for the following purposes, which are more fully described in the accompanying Proxy Statement:
| 1. | To approve an amendment to our Certificate of Incorporation, as amended, to increase the number of authorized shares from 30,500,000 to 750,500,000, and to increase the number of our common stock from 30,000,000 to 750,000,000, in substantially the form attached to the Proxy Statement as Appendix A (the “Share Increase Proposal”); |
| 2. | To approve an amendment to our Certificate of Incorporation, as amended, in substantially the form attached to the Proxy Statement as Appendix B, to, at the discretion of the Board of Directors of the Company (the “Board”), effect a reverse stock split with respect to the Company’s issued and outstanding common stock, par value $0.0001 per share, at a ratio between 1-for-20 and 1-for-35 (the “Range”), with the ratio within such Range to be determined at the discretion of the Board (the “Reverse Stock Split Proposal”) and included in a public announcement; and |
| 3. | To conduct any other business properly brought before the meeting. |
You will be able to attend and participate in the Special Meeting online, vote your shares electronically, and submit your questions during the meeting by visiting https://meetnow.global/MRJXJMN. To participate in the Special Meeting, you must have your control number that is shown on your proxy card. Further information about how to attend the Special Meeting online, vote your shares online during the meeting, and submit questions online during the Special Meeting is included in the Proxy Statement.
The Board has fixed the close of business on March 3, 2023 as the Record Date for the Special Meeting. Only stockholders of record on the Record Date are entitled to receive Notice of the Special Meeting and Proxy Statement, and only such stockholders, or their legal proxy holders, are entitled to vote at the Special Meeting or at any postponements, or continuations, or adjournments of the Special Meeting as described in the accompanying Proxy Statement. Notwithstanding the foregoing, shares of Series C Preferred Stock will only be entitled to vote such shares on the Share Increase Proposal and the Reverse Stock Split Proposal as described in the accompanying Proxy Statement. Shares of Common Stock with be entitled to vote on the Share Increase Proposal and the Reverse Stock Split Proposal and any other matter, in any. A complete list of registered stockholders entitled to vote at the Special Meeting will be available for inspection at our offices during regular business hours for the ten (10) calendar days prior to the Special Meeting and online during the Special Meeting.
If you have questions about your stock ownership, you may contact us or our transfer agent, Computershare, at (866) 641-4276.
It is important that your shares are represented at the Special Meeting. Whether or not you expect to participate in the virtual Special Meeting, we hope that you will promptly vote and submit your proxy by dating, signing, and returning the enclosed proxy card, or vote via the Internet or by telephone. This will not limit your rights to attend or vote during the Special Meeting. Please note, however, that if your shares are held of record by a broker, bank, or other agent and you wish to vote at the meeting, you must obtain a proxy issued in your name from that record holder.
| By Order of the Board of Directors, | |
| Boston, Massachusetts | Gerald McLaughlin |
| March [●], 2023 | Chairman of the Board |
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting of Stockholders to Be
Held on March 20, 2023:
The
Notice of the Special Meeting and Proxy Statement are electronically available at http://www.edocumentview.com/ALLR
TABLE OF CONTENTS
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting of Stockholders to Be
Held on March 20, 2023:
The
Notice of the Special Meeting and Proxy Statement are electronically available at http://www.edocumentview.com/ALLR
Forward-Looking Statements. The Proxy Statement may contain “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995, which statements are subject to substantial risks and uncertainties and are based on estimates and assumptions. All statements other than statements of historical facts included in the Proxy Statement are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as “may,” “might,” “will,” “objective,” “intend,” “should,” “could,” “can,” “would,” “expect,” “believe,” “design,” “estimate,” “predict,” “potential,” “plan” or the negative of these terms, and similar expressions intended to identify forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors that could cause our actual results to differ materially from the forward-looking statements expressed or implied in the Proxy Statement. Such risks, uncertainties and other factors include those risks described in “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Company’s most recent Annual Report on Form 10-K filed with the U.S. Securities and Exchange Commission (“SEC”) and other subsequent documents we file with the SEC. The Company expressly disclaims any obligation to update or alter any statements whether as a result of new information, future events or otherwise, except as required by law.
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PROXY STATEMENT
Special Meeting OF STOCKHOLDERS
To Be Held On March 20, 2023
GENERAL INFORMATION ABOUT THE MEETING
Allarity Therapeutics, Inc. (“Allarity,” “we,” “us,” “our” or the “Company”) has prepared these materials for its virtual Special Meeting of Stockholders and any adjournment, continuation, or postponement thereof (the “Special Meeting”). The Special Meeting is scheduled to begin at 1:00 p.m. Eastern Time, on Monday, March 20, 2023. Unless the context otherwise requires, references in this Proxy Statement to “stockholders” or “holders” are to the holders of record of our common stock, par value $0.0001 per share (“common stock” or “Common Stock”), and holders of our Series C Convertible Redeemable Preferred Stock, par value $0.0001 per share (the “Series C Preferred Stock”) as of March 3, 2023, and with respect to voting of the shares of Series C Preferred Stock, shall mean the Board of Directors of the Company, or its authorized proxy.
The Special Meeting will be a completely virtual meeting conducted via live audio webcast. We believe this technology provides expanded access, improved communication and cost savings for our stockholders. Hosting a virtual meeting enables increased stockholder attendance and participation from any location around the world. If you are a record holder of shares of our Common Stock or Series C Preferred Stock at the close of business on March 3, 2023 (the “Record Date”), you are invited to attend the Special Meeting virtually and to vote on the proposals described in this Proxy Statement applicable to the class of stock which you held.
Our proxy materials are first being mailed to stockholders on or about March [●], 2023. We are soliciting proxies pursuant to this Proxy Statement for use at the Special Meeting. Our Proxy Statement and other proxy materials are electronically available at http://www.edocumentview.com/ALLR
GENERAL
INFORMATION ABOUT THE PROXY MATERIALS,
ANNUAL MEETING AND VOTING
Why am I receiving these materials?
Our Board of Directors is soliciting your proxy to vote at our Special Meeting, including at any adjournment, continuation, or postponement of the meeting. You are invited to attend the Special Meeting via the webcast to vote on the proposals described in the Proxy Statement. However, you do not need to attend the meeting to vote your shares. Instead, you may follow the instructions below to submit your proxy by telephone or through the Internet, or by the paper proxy card you received in the mail, by completing, signing and returning the proxy card by mail.
Our proxy materials are first being mailed to stockholders on or about [●], 2023, In addition, the proxy materials are available at http://www.edocumentview.com/ALLR.
How can I attend the Special Meeting?
The Special Meeting will be a completely virtual meeting of stockholders, which will be conducted exclusively by audio webcast. You are entitled to participate in the Special Meeting only if you were a stockholder of the Company as of the close of business on March 3, 2023, or if you hold a valid proxy for the Special Meeting. No physical meeting will be held. You will be able to attend the Special Meeting online and submit your questions during the meeting by visiting https://meetnow.global/MRJXJMN. You also will be able to vote your shares online by attending the Special Meeting by webcast.
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To participate in the Special Meeting, you will need to review the information included on your proxy card or on the instructions that accompanied your proxy materials. To participate in the Special Meeting, you must have your control number that is shown on your proxy card.
If you hold your shares through an intermediary, such as a bank or broker, you must register in advance using the instructions below.
The online meeting will begin promptly at 1:00 p.m., Eastern Time. We encourage you to access the meeting prior to the start time leaving ample time for the check in. Please follow the registration instructions as outlined in this Proxy Statement. Please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone or similar companies.
How do I register to attend the Special Meeting virtually on the Internet?
If you are a registered stockholder (i.e., you hold your shares directly through our transfer agent, Computershare), you do not need to register to attend the Special Meeting virtually on the Internet. You will be able to attend and participate in the Special Meeting online, vote your shares electronically, and submit your questions during the meeting by visiting https://meetnow.global/MRJXJMN. To participate in the Special Meeting, you must have your control number that is shown on your proxy card.
If you hold your shares through an intermediary, such as a bank or broker, you must register in advance to attend the Special Meeting virtually on the Internet. To register to attend the Special Meeting online by webcast you must submit proof of your proxy power (legal proxy) reflecting your Allarity Therapeutics, Inc. holdings, along with your name and email address, to Computershare. Requests for registration must be labelled as “Legal Proxy” and be received no later than 5:00 p.m., Eastern Time, on March 15, 2023. You will receive a confirmation of your registration by email after we receive your registration materials.
Requests for registration should be directed to us at the following:
| ● | By email. Forward the email from your broker, or attach an image of your legal proxy, to legalproxy@computershare.com. |
| ● | By mail: |
Computershare
Allarity Therapeutics, Inc. Legal Proxy
P.O. Box 43001
Providence, RI 02940-3001
What if I have trouble accessing the Special Meeting virtually?
The virtual meeting platform is fully supported across browsers (MS Edge, Firefox, Chrome and Safari) and devices (desktops, laptops, tablets and cell phones) running the most up-to-date version of applicable software and plugins. Note: Internet Explorer is not a supported browser. Participants should ensure that they have a strong WiFi connection wherever they intend to participate in the meeting. We encourage you to access the meeting prior to the start time. For further assistance, should you need it, you may call (888) 724-2416.
What is a proxy?
A proxy is another person that you legally designate to vote your stock. If you designate someone as your proxy in a written document, that document is also called a “proxy” or a “proxy card.” By using the methods discussed below, you will be appointing James G. Cullem or Joan Brown as your proxy. The proxy agent will vote on your behalf, and will have the authority to appoint a substitute to act as proxy. If you are unable to attend the Special Meeting, please vote by proxy so that your shares may be voted.
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Who can vote at the Special Meeting?
Only our stockholders of record of our Common Stock and Series C Preferred Stock at the close of business on March 3, 2023 (the ” Record Date”), or their legal proxy holders, are entitled to notice and vote at the Special Meeting and at any adjournments or postponements thereof. As of the Record Date, there were [●] shares of Common Stock and [●] shares of Series C Preferred Stock issued and outstanding and entitled to vote.
Holders of record of shares of Common Stock have the right to vote on all matters brought before the Special Meeting. Holders of record of shares of Series C Preferred Stock have the right to vote only on the Share Increase Proposal and Reverse Stock Split Proposal. We are not aware of any other matter to be acted upon at the Special Meeting other than the matters described in this Proxy Statement. Holders of Common Stock and Series C Preferred Stock will vote on all proposals together as a single class.
In light of the urgent need to schedule the Special Meeting in order to increase our authorized shares of common stock, we could not initiate the inquiry required by Rule 14a-13(a)(1), promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), a full twenty (20) business days prior to the Record Date. We initiated that inquiry as soon as we established the Record Date for the Special Meeting. However, we believe that the broker inquiry required under Rule 14a-13(a)(1) of the Exchange Act that has been conducted on our behalf has produced a complete data set of stockholders, banks and brokers as of the Record Date.
What are the voting rights of the stockholders?
On February 24, 2023, the Board approved a Certificate of Designation of Preferences, Rights and Limitations of Series C Convertible Preferred Stock (“Series C COD”) pursuant to which 50,000 shares were designated as Series C Convertible Redeemable Preferred Stock, $0.0001 (“Series C Preferred Stock”). As of the Record Date, there were [●] shares of Series C Preferred Stock outstanding, which was held by [●] holders of record. As of the Record Date, the holders of Series A Preferred Stock have no voting rights.
Common Stock. Each share of our Common Stock outstanding as of the Record Date is entitled to one (1) vote per share on all matters properly brought before the Special Meeting.
Series C Preferred Stock. Each share of Series C Preferred Stock outstanding as of the Record Date has six hundred twenty (620) votes per share of Series C Preferred Stock and is entitled to vote together with the Common Stock and as a single class on the Share Increase Proposal and Reverse Stock Split Proposal, but are not otherwise entitled to vote on the other proposals to be presented at the Special Meeting.
Stockholder of Record: Shares Registered in Your Name
If on the Record Date, shares of Common Stock or Series C Preferred Stock were registered directly in your name with our transfer agent, Computershare, or in the Company’s corporate stockholder registrar in the case of shares relating to Series C Preferred Stock, then you are a stockholder of record. If you are a stockholder of record entitled to vote, you may vote at https://meetnow.global/MRJXJMN during the Special Meeting, via the Internet, by mail, or by telephone as described below. Giving a proxy will not affect your right to vote during the Special Meeting. Whether or not you plan to attend the meeting, we urge you to vote by proxy over the telephone or on the Internet as instructed below or by paper proxy card, fill out and return the proxy mailed to you, to ensure your vote is counted.
Beneficial Owner: Shares Registered in the Name of a Broker or Bank
If on the Record Date, your shares were held, not in your name, but rather in an account at a brokerage firm, bank, dealer, or other similar organization, then you are the beneficial owner of shares held in “street name” and the proxy statement is being 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 Special Meeting. As a beneficial owner, you have the right to direct your broker or other agent regarding how to vote the shares in your account. Stockholders holding shares through a bank or broker should follow the instructions on the voting instruction card received from the bank or broker. You are also invited to attend the Special Meeting. However, since you are not the stockholder of record, you may not vote your shares at the meeting or ask questions unless you request and obtain a valid proxy from your broker, bank or other agent and register with Computershare in advance.
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To register to vote or ask questions at the Special Meeting you must submit proof of your proxy power (legal proxy) reflecting your Allarity Therapeutics, Inc. holdings, along with your name and email address, to Computershare. Requests for registration must be labeled as “Legal Proxy” and be received no later than 5:00 p.m., Eastern Time, on March 15, 2023. You will receive a confirmation of your registration by email after Computershare receives your registration materials.
Requests for registration should be directed to Computershare at the following:
| ● | By email: Forward the email from your broker, or attach an image of your legal proxy, to legalproxy@computershare.com |
| ● | By mail: Computershare |
Allarity Therapeutics, Inc. Legal Proxy
P.O. Box 43001
Providence, RI 02940-3001
What am I voting on?
The list below sets out the matters scheduled for a vote at the Special Meeting. Holders of Common Stock are entitled to vote on all matters at the Special Meeting, including Proposal 1 (Share Increase Proposal) and Proposal 2 (Reverse Stock Split Proposal), as well as any other proposal that may be properly presented. Holders of Series C Preferred Stock are only entitled to vote on Proposal 1 (Share Increase Proposal) and Proposal 2 (Reverse Stock Split Proposal), as described in this Proxy Statement:
| Proposal 1: | To approve an amendment to our Certificate of Incorporation, as amended, to increase the number of authorized shares from 30,500,000 to 750,500,000, and to increase the number of shares of our Common Stock from 30,000,000 to 750,000,000 in substantially the form attached to the Proxy Statement as Appendix A (“Share Increase Proposal”); and |
| Proposal 2: | To approve an amendment to our Certificate of Incorporation, as amended, in substantially the form attached to the Proxy Statement as Appendix B, to, at the discretion of the Board of Directors of the Company (the “Board”), effect a reverse stock split with respect to the Company’s issued and outstanding Common Stock, par value $0.0001 per share, at a ratio between 1-for-20 and 1-for-35 (the “Range”), with the ratio within such Range to be determined at the discretion of the Board (the “Reverse Stock Split Proposal”) and included in a public announcement. |
How do I vote?
You are invited to attend the virtual Special Meeting online to vote on the proposals described in this Proxy Statement during the Special Meeting. If you are a stockholder of record entitled to vote the shares, you may vote your shares by simply following the instructions below to vote via the Internet, by telephone or by mail. Even if you intend to attend the Special Meeting online, we encourage you to vote your shares in advance using one of the methods described below to ensure that your vote will be represented at the Special Meeting.
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Stockholder of Record: Shares Registered in Your Name
If, on the record date, your shares were registered directly in your name with our transfer agent, Computershare Trust Company, N.A. (Computershare), or in the Company’s corporate stockholder registrar in the case of shares relating to Series C Preferred Stock, then you are a stockholder of record. If you are a stockholder of record entitled to vote then you may vote those shares at https://meetnow.global/MRJXJMN during the Special Meeting, vote by proxy over the telephone, vote by proxy through the Internet or vote by proxy using a proxy card that was mailed to you. Whether or not you plan to attend the Special Meeting, we urge you to vote by proxy to ensure your vote is counted. You may still attend the Special Meeting and vote at that time even if you have already voted by proxy.
| ● | Voting via the Internet. To vote through the Internet before the Special Meeting, go to http://www.investorvote.com/ALLR to complete an electronic proxy card. You will need to review the information included on your proxy card. We encourage you to vote via the Internet. |
| ● | Voting by telephone. To vote over the telephone, dial toll-free 1-800-652-VOTE (8683) using a touch-tone telephone and follow the recorded instructions. You will be asked to provide the company number and control number from the proxy card. |
| ● | Voting by mail. To vote using the proxy card, simply complete, sign and date the proxy card that was delivered to you by mail and return it promptly in the envelope provided. If you return your signed proxy card to us before the Special Meeting, we will vote your shares as you direct. |
| ● | Voting at the Special Meeting. To vote at the Special Meeting, you must join live online at https://meetnow.global/MRJXJMN. The webcast will start at 1:00 p.m., Eastern Time. To participate and vote in the Special Meeting, you will need to review the information included on your proxy card or on the instructions included in the instructions that accompanied your proxy material. You may vote and submit questions while attending the Special Meeting online. |
Beneficial Owner: Shares Registered in the Name of a Broker or Bank
If, on the Record Date, your shares were held, not in your name, but rather in an account at a brokerage firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in “street name.” The organization holding those shares is considered to be the stockholder of record for purposes of the Special Meeting. As a beneficial owner, you have the right to direct the organization holding those shares regarding how to vote such shares. You should have received a notice containing voting instructions from the organization that holds those shares. Follow the instructions provided by that organization to ensure that your vote is counted. To vote at the Special Meeting, you must obtain a valid proxy from your broker, bank, or other agent, register with Computershare in advance as described above, and vote in accordance with the procedures described above. A legal proxy is a written document that authorizes you to vote your shares held in street name at the Special Meeting. Please contact the organization that holds your shares for instructions regarding obtaining a legal proxy. Follow the instructions from your broker or bank or contact your broker or bank to request a proxy form.
In additional to providing you a printed proxy to vote by mail, we also 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.
What happens if I do not vote?
Stockholder of Record: Shares Registered in Your Name
If you are a stockholder of record entitled to vote and do not vote by telephone, through the Internet, by completing your proxy card, or at https://meetnow.global/MRJXJMN during the Special Meeting, your shares will not be voted.
Beneficial Owner: Shares Registered in the Name of Broker or Bank
If you are a beneficial owner of shares held in “street name” and do not instruct your broker, bank, or other agent how to vote your shares, the question of whether your broker or nominee will still be able to vote your shares depends on whether the particular proposal is deemed to be a “routine” matter under NYSE Rule 452 . Brokers and nominees can use their discretion to vote “uninstructed” shares only with respect to matters that are considered to be “routine.” Proposal 1 (Share Increase Proposal) and Proposal 2 (Reverse Stock Split Proposal) are considered routine matters under NYSE Rule 452.
If you are a beneficial owner of shares held in “street name” you must provide voting instructions to your broker, bank, or other agent by the deadline provided in the materials you receive from such organization in order to ensure your shares are voted in the way you would prefer.
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What if I return a proxy card or otherwise vote but do not make specific choices?
If you return a signed and dated proxy card or otherwise vote without marking voting selections, your shares will be voted, as applicable, “For” Proposal 1 (Share Increase Proposal), and “For” Proposal 2 (Reverse Stock Split Proposal). If any other matter is properly presented at the meeting and you are entitled to vote on such matter, the proxy holder (one of the individuals named on your proxy card) will vote your shares using his or her best judgment.
Who am I being asked to appoint as proxy holders and what does it mean?
Our Board of Directors asks you to appoint James G. Cullem, the Chief Executive Officer, and Joan Brown, the Chief Financial Officer, as your proxy holders to vote your shares at the Special Meeting. You make this appointment by voting by telephone, through the Internet, or by completing your proxy card.
If appointed by you, either one of the proxy holders will vote your shares as you direct on the matters described in this Proxy Statement. In the absence of your direction, they will vote your shares as recommended by our Board.
Unless you otherwise indicate on the proxy card, you also authorize your proxy holders to vote your shares on any matters not known by our Board of Directors at the time this Proxy Statement was printed and which, under our amended and restated bylaws (“Bylaws”), may be properly presented for action at the Special Meeting. As of the date of the mailing of the Proxy Statement, our Board of Directors knows of no other matters that will be presented for consideration at the Special Meeting
Can I change my vote after submitting my proxy?
Stockholder of Record: Shares Registered in Your Name
Yes. You can revoke your proxy at any time before the final vote at the Special Meeting. If you are the record holder of your shares, you may revoke your proxy in any one of the following ways:
| ● | You may submit a properly completed proxy card with a later date. |
| ● | You may grant a subsequent proxy by telephone or through the Internet. |
| ● | You may send a timely written notice that you are revoking your proxy to James G. Cullem, Corporate Secretary, which is received by the Company or Computershare. |
| ● | You may attend the Special Meeting via the live webcast and vote. Attendance at the Special Meeting will not cause your previously granted proxy to be revoked unless you specifically so request, or you vote at the Special Meeting. |
Your most recent vote, whether at the Special Meeting, by proxy card or by telephone or Internet proxy is the one that is counted.
Beneficial Owner: Shares Registered in the Name of Broker or Bank
Stockholders holding shares through a bank or broker should follow the instructions for revocation provided by the bank or broker.
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How many votes are needed to approve each proposal?
| ● | For Proposal 1, approval to amend the Certificate of Incorporation to increase authorized shares requires the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Common Stock and Series C Preferred Stock, present in person or represented by proxy at the Special Meeting and entitled to vote on the proposal, voting together as a single class. Accordingly, for approval, this Proposal 1 must receive “For” votes from the holders of a majority of shares of Common Stock and Series C Preferred Stock entitled to vote and voting together as a single class. Please refer to the discussion above under “Who can vote at the Special Meeting?” and “What are the voting rights of the stockholders?” for a description of the Series C Preferred Stock, which is entitled to be voted together with the Common Stock as a single class on the Share Increase Proposal and the Reverse Stock Split Proposal. |
Abstentions and broker non-votes will have the same effect as an “Against” vote on this proposal. However, this proposal is a routine matter and brokers and other nominees may generally vote in their discretion on routine matters, and therefore broker non-votes are not expected on this proposal.
| ● | For Proposal 2, approval to amend the Certificate of Incorporation to effect the Reverse Stock Split, requires the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Common Stock and Series C Preferred Stock, present in person or represented by proxy at the Special Meeting and entitled to vote on the proposal, voting together as a single class. Accordingly, for approval, this Proposal 1 must receive “For” votes from the holders of a majority of shares of Common Stock and Series C Preferred Stock entitled to vote and voting together as a single class. Please refer to the discussion above under “Who can vote at the Special Meeting?” and “What are the voting rights of the stockholders?” for a description of the Series C Preferred Stock, which is entitled to be voted together with the Common Stock as a single class on the Share Increase Proposal and the Reverse Stock Split Proposal. Abstentions and broker non-votes will have the same effect as an “Against” vote on this proposal. However, this proposal is a routine matter and brokers and other nominees may generally vote in their discretion on routine matters, and therefore broker non-votes are not expected on this proposal. |
All other matters submitted for stockholder approval, if any, require the affirmative vote of the majority of Common Stock present in person or represented by proxy at the Special Meeting.
As discussed above abstentions and broker non-votes, if any, will not be included in determining the number of votes cast and, as a result, will have no effect on this proposal, although they will be considered present for the purpose of determining the presence of a quorum.
What is the quorum requirement?
A quorum is the minimum number of shares required to be present or represented by proxy at the Special Meeting to properly hold a meeting of stockholders and conduct business under our bylaws and Delaware law. The presence, in person or by proxy, of one-third of the voting power of the stock issued, outstanding and entitled to vote at the Special Meeting will constitute a quorum at the Special Meeting. Abstentions and broker non-votes will be counted as shares present and entitled to vote for the purposes of determining a quorum for the Special Meeting. “Broker non-votes” occur when brokers, banks or other nominees that hold shares on behalf of beneficial owners do not receive voting instructions from the beneficial owners prior to the meeting and do not have discretionary voting authority to vote those shares.
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 by telephone, over the Internet or at the Special Meeting. Abstentions and broker non-votes will be counted towards the quorum requirement.
If a quorum is not present, we may propose to adjourn the Special Meeting to solicit additional proxies and reconvene the Special Meeting at a later date.
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What does it mean if I receive more than one Proxy Statement
If you receive more than one Proxy Statement, your shares may be registered in more than one name or held in different registered accounts. Please follow the voting instructions on the Proxy to ensure that all of your shares are voted.
How can I find out the results of the voting at the Special Meeting?
Preliminary voting results will be announced at the Special Meeting. Final voting results will be published in a current report on Form 8-K that we expect to file with the SEC within four (4) business days after the Special Meeting. If final voting results are not available to us in time to file a Form 8-K within four (4) business days after the Special Meeting, we intend to file a Form 8-K to publish preliminary results and, within four (4) business days after the final results are known to us, file an additional Form 8-K to publish the final results.
When will the Share Increase and the Reverse Stock Split be effective?
The effectiveness of the Share Increase and the Reverse Stock Split or the abandonment thereof, notwithstanding stockholder approval, will be determined by the Board, at its sole option, following the Special Meeting any time. The text of the proposed form of Certificate of Amendment to our Certificate of Incorporation for the Share Increase and the Reverse Stock Split is attached hereto as Appendix A and Appendix, respectively (“Certificate of Amendment(s)”). If approved by stockholders and implemented by the Board, the Reverse Stock Split and the Authorized Shares Reduction will become effective upon the filing of the applicable Certificate of Amendment with the Secretary of State of the State of Delaware, or such later date as is chosen by the Board and set forth in the applicable filed Certificate of Amendment.
Do I have any dissenters’ or appraisal rights with respect to any of the matters to be voted on at the Special Meeting?
No. None of the stockholders has any dissenters’ or appraisal rights with respect to the matters to be voted on at the Special Meeting.
Who is paying for this proxy solicitation?
We will pay for the entire cost of soliciting proxies. Our directors and employees may solicit proxies in person, by telephone, or by other means of communication. None of our directors or employees will be paid any additional compensation for soliciting proxies. We may also reimburse brokerage firms, banks, dealers and other similar organizations for the cost of forwarding proxy materials to beneficial owners.
Who can help answer my questions?
If you need assistance completing your proxy card or have other questions regarding the Special Meeting, stockholders, banks and brokers can contact us at by email at investorrelations@allarity.com or by phone (401) 426-4664.
Householding of Proxy Materials
We have adopted an SEC approved procedure called “householding.” This procedure potentially means extra convenience for stockholders and cost savings for companies. Under this procedure, we send only one copy of the Notice of Special Meeting of Stockholders, Proxy Statement and other proxy materials, to stockholders of record who share the same address and last name, unless one of those stockholders notifies us that the stockholder would like a separate copy of such documents. If, at any time, you no longer wish to participate in householding and would prefer to receive a separate copy of the Notice of Special Meeting of Stockholders, Proxy Statement and or proxy materials from the other stockholder(s) sharing your address, please direct your written request to Allarity Therapeutics, Inc., Attention: Corporate Secretary, 24 School Street, 2nd Floor, Boston, Massachusetts 02108 or contact us by phone at (401) 426-4664. We undertake to deliver promptly, upon any such oral or written request, a separate copy of the Notice of Special Meeting of Stockholders, Proxy Statement and proxy materials, to a stockholder at a shared address to which a single copy of these documents was delivered. Similarly, if stockholders of record sharing the same address are receiving multiple copies of the Notice of Special Meeting of Stockholders, Proxy Statement and proxy materials, and such stockholders would like a single copy to be delivered to them in the future, such stockholders may make such a request by contacting us by the means described above.
If you wish to update your participation in householding and you are a beneficial owner who holds shares in “street name” with a broker, bank or other nominee, you may contact your broker, bank, or other nominee or our mailing agent, Computershare at (866) 641-4276.
Interest of Certain Persons in Matter to be Acted Upon
No officer or director has any substantial interest, direct or indirect, by security holdings or otherwise, in Proposals 1 or 2 that is not shared by all other stockholders.
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TO APPROVE AN AMENDMENT TO OUR CERTIFICATE
OF INCORPORATION, AS AMENDED, TO INCREASE
THE AUTHORIZED NUMBER OF SHARES FROM 30,500,000 TO 750,500,000 AND
INCREASE SHARES OF OUR COMMON
STOCK FROM 30,000,000 TO 750,000,000
General
Under our Certificate of Incorporation, as amended, the total number of shares of all classes of capital stock that the Company is authorized to issue is 30,500,000 shares (the “Shares”), consisting of (i) 30,000,000 shares of common stock, par value $0.0001 per share (the “common stock” or “Common Stock”), and (ii) 500,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”), of which 20,000 shares have been designated as Series A Preferred Stock, 200,000 shares have been designated as Series B Preferred Stock, and 50,000 has been designated as Series C Preferred Stock. Our Board of Directors has determined that it is advisable to increase (i) the authorized number of shares from 30,500,000 to 750,500,000 and (2) the authorized number of shares of our Common Stock from 30,000,000 to 750,000,000 and recommends that our stockholders approve an amendment to our Certificate of Incorporation, as amended (our “Certificate of Incorporation”), to effect the proposed increases. The full text of the proposed amendment to our Certificate of Incorporation is attached to this Proxy Statement as Appendix A. However, the text of the proposed amendment is subject to revision to include such changes as may be required by the Secretary of State of the State of Delaware and as our Board of Directors deems necessary and advisable to effect the proposed amendment to our Certificate of Incorporation. If approved by our stockholders, we intend to file the amendment with the Secretary of State of Delaware as soon as practicable following the Special Meeting, and the amendment will be effective upon filing. If this proposal is not approved by our stockholders, our Certificate of Incorporation will continue as currently in effect.
Purpose of the Increase in Authorized Shares
As of March 3, 2023, we had 30,000,000 authorized shares of Common Stock, $0.0001 par value per share, of which [●] shares were issued and outstanding. In addition, we had [●] shares of Series A Preferred Stock and [●] shares of Series C Preferred Stock outstanding. Of the remaining [●] authorized shares of Common Stock, [●] shares are reserved for issuance upon the exercise of issued and outstanding warrants, [●] shares are reserved in connection with such warrants, [●] shares are reserved for issuance upon the conversion of outstanding shares of Series A Preferred Stock, [●] shares are reserved for issuance upon the exercise of issued and outstanding equity awards, and [●]shares are reserved for future issuance under our 2021 Equity Incentive Plan (“2021 Plan”). Accordingly, based on the foregoing, as of March 3, 2023, there are no authorized shares of Common Stock unreserved and available for future issuance. In addition, because we do not have enough authorized shares of common stock reserved to be issued upon the potential conversion of the Series A Preferred Stock and exercise of PIPE Warrant (defined below), we are in technical default under the terms of the [Certificate of Designations for the Series A Preferred Stock and PIPE Warrant of which we have obtained a waiver from 3i, L.P.]
On May 20, 2021, we entered into a Securities Purchase Agreement (the “SPA”) with 3i, L.P., for the purchase and sale of 20,000 shares of our Series A Convertible Preferred Stock for $1,000 per share for an aggregate purchase price of $20 million with accompanying common stock purchase warrants (the “PIPE Financing”). In December 2021, we closed on the PIPE Financing and in connection therewith issued 20,000 shares of Series A Preferred Stock at $1,000 per share and a common stock purchase warrant to purchase 2,018,958 shares of common stock at an initial exercise price of $9.9061 to 3i, L.P. (“PIPE Warrant”) for an aggregate purchase price of $20 million In connection with our shares of Series A Preferred Stock, PIPE Warrant and [Series C Preferred Stock], we have certain obligations under the respective Certificate of Designation, PIPE Warrant and related transaction documents to have the necessary number of shares authorized and reserved to issue shares of Common Stock upon conversion or exercise of such securities. We currently do not have enough authorized shares of Common Stock to meet our obligations under our existing authorized shares of 30,000,000 shares of Common Stock. In addition, our Board believes it is in the best interest of our Company to increase the number of authorized shares of our Common Stock to give us greater flexibility in considering and planning for future potential business needs, including the restructuring of our PIPE Financing, public offerings or private placements of our Common Stock for capital raising purposes and issuances of our Common Stock in connection with collaborations, acquisitions or in-licenses of assets, or other strategic transactions. We do not currently have any definitive agreements or arrangements to issue any of the proposed additional authorized shares of Common Stock that will become available for issuance if this proposal is approved and the proposed amendment is effected. Having the additional authorized shares available will also help to provide appropriate equity incentives to assist in the recruitment and retention of employees.
Prior Annual Meeting; Securities Purchase Agreement Series C Preferred Stock
On February 3, 2023, we held our previously adjourned annual meeting of stockholders (the “Annual Meeting”). Nine proposals were submitted to our stockholders for a vote at the Annual Meeting including a proposal to increase the number of authorized shares and a proposal to effect a stock split. The proposals to increase the number of authorized shares and to effect a stock split did not pass by the requisite shareholder vote at the Annual Meeting. In light of our financing needs and our obligations to 3i as holder of the Series A Preferred Stock and PIPE Warrant, on February 24, 2023, we entered into a securities purchase agreement with 3i whereby they would purchase 50,000 shares of Series C Preferred Stock at $24 per share for a subscription receivable in the aggregate amount equal to the total purchase price. Under the terms of the Series C Preferred Stock, the holders thereof may only vote on Proposal 1 (Share Increase Proposal) and Proposal 2 (Reverse Stock Split Proposal) and for no other matters. Each holder of one share of Series C Preferred Stock is entitled to six hundred twenty (620) votes representing 31,000,000 votes in the aggregate assuming 50,000 shares of Series C Preferred Stock is outstanding.
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Rights of Additional Authorized Shares
The proposed amendment to our Certificate of Incorporation would not have any effect on the par value per share of our Common Stock. Our Common Stock is a single class, with equal voting, distribution, liquidation and other rights. The additional Common Stock to be authorized by the proposed amendment would have rights identical to our currently outstanding Common Stock. Should our Board issue additional shares of Common Stock, existing stockholders would not have any preferential rights to purchase any newly authorized shares of Common Stock solely by virtue of their ownership of shares of our Common Stock, and their percentage ownership of our then outstanding Common Stock could be reduced. The issuance of additional shares of Common Stock would have the effect of diluting existing stockholder earnings per share, book value per share and voting power.
Potential Adverse Effects
We have not proposed the increase in the number of authorized shares of Common Stock with the purpose or intention of using the additional authorized shares for anti-takeover purposes, such as to oppose a hostile takeover attempt or to delay or prevent a change in control of the Company that our Board does not support, but we could use the additional shares for such purpose. The proposed amendment, if effected, will increase the number of authorized but unissued shares of our Common Stock, and, subject to compliance with law and the listing rules of the Nasdaq Stock Market, our Board could issue, without further stockholder approval, the additional shares available as a result of such increase in one or more transactions that could make it more difficult for a party to effect a takeover or change in control of the Company that our Board does not support. For example, our Board could issue additional shares without further stockholder approval (subject to compliance with law and the listing rules of the Nasdaq Stock Market) so as to dilute the stock ownership or voting rights of persons seeking to obtain control of our Board or of the Company in a transaction that our Board does not support, including in a transaction in which a person is offering a premium to our stockholders for their shares of our Common Stock over then current market prices. The proposed amendment has been prompted by business and financial considerations described above under the header, “Purpose of the Increase in Authorized Shares” and not by the threat of any known or threatened hostile takeover attempt, however, stockholders should be aware that by potentially discouraging initiation of any such unsolicited takeover attempts, the proposed amendment may limit the opportunity for our stockholders to receive a premium for their shares over then current market prices generally available in such takeover attempts.
Additionally, the issuance of additional shares of Common Stock could have the effect of diluting existing stockholder earnings per share, book value per share and voting power.
Risks of Not Approving This Proposal
If the stockholders do not approve Proposal 1 (Share Increase Proposal), we will continue to have only 30,000,000 authorized shares of Common Stock. As we do not have a sufficient number of shares of Common Stock authorized and reserved, this could trigger a right of redemption under the Certificate of Designations for the Series A Preferred Stock, and other adjustments and rights under existing agreements with 3i, L.P.. In addition, this could adversely impact our ability to pursue opportunities in which shares of our Common Stock could be issued that our Board may determine would otherwise be in the best interest of the Company and our stockholders, including financing and strategic transaction opportunities and employee recruitment and retention purposes, as described above under the header, “Purpose of the Increase in Authorized Shares.” Failure to obtain equity financing through the issuance of our securities, including our Common Stock, may cause us to be unable to continue our operations.
Vote Required
If a quorum is present at the Special Meeting, this proposal will be approved by our stockholders if a majority of voting power of the outstanding shares of our Common Stock and Series C Preferred Stock entitled to vote, vote “FOR” this proposal together as a single class. Abstentions and broker non-votes will have the same effect as an “AGAINST” vote on this proposal. However, this proposal is a routine matter and brokers and other nominees may generally vote in their discretion on routine matters, and therefore broker non-votes are not expected on this proposal.
OUR BOARD RECOMMENDS A VOTE “FOR” PROPOSAL 1
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To
approve an amendment to our Certificate of Incorporation, as amended, in
substantially the form attached to the Proxy Statement
as Appendix B, to, at
the discretion of the Board of Directors of the Company (the “Board”), effect
a
reverse stock split with respect to the Company’s issued and outstanding
Common Stock, par value $0.0001 per share, at a ratio
BETWEEN 1-for-20 AND
1-for-35 (the “Range”), with the ratio within such Range to be determined
at the discretion of
the Board (the “Reverse Stock Split Proposal”) and
included in a public announcement
Background and Proposed Amendment
On February 24, 2023, subject to stockholder approval, the Board approved an amendment to our Certificate of Incorporation to, at the discretion of the Board, effect the Reverse Stock Split of the Common Stock at a ratio between 1-for-20 and 1-for-35 with the exact ratio within such range to be determined by the Board of the Company at its discretion. The primary goal of the Reverse Stock Split is to increase the per share market price of our Common Stock to meet the minimum per share bid price requirements for continued listing on The Nasdaq Stock Market. We believe that a range of Reverse Stock Split ratios provides us with the most flexibility to achieve the desired results of the Reverse Stock Split. The Reverse Stock Split is not intended as, and will not have the effect of, a “going private transaction” covered by Rule 13e-3 promulgated under the Exchange Act. The Reverse Stock Split is not intended to modify the rights of existing stockholders in any material respect.
If the Reverse Stock Split Proposal is approved by our stockholders and the Reverse Stock Split is effected, up to every thirty-five (35) shares of our outstanding Common Stock would be combined and reclassified into one (1) share of Common Stock. The actual timing for implementation of the Reverse Stock Split would be determined by the Board based upon its evaluation as to when such action would be most advantageous to the Company and its stockholders. Notwithstanding approval of the Reverse Stock Split Proposal by our stockholders, the Board will have the sole authority to elect whether or not and when to amend our Certificate of Incorporation to effect the Reverse Stock Split. If the Reverse Stock Split Proposal is approved by our stockholders, the Board will make a determination as to whether effecting the Reverse Stock Split is in the best interests of the Company and our stockholders in light of, among other things, the Company’s ability to increase the trading price of our Common Stock to meet the minimum stock price standards of The Nasdaq Stock Market without effecting the Reverse Stock Split, the per share price of the Common Stock immediately prior to the Reverse Stock Split and the expected stability of the per share price of the Common Stock following the Reverse Stock Split. If the Board determines that it is in the best interests of the Company and its stockholders to effect the Reverse Stock Split, it will hold a Board meeting to determine the ratio of the Reverse Stock Split. For additional information concerning the factors the Board will consider in deciding whether to effect the Reverse Stock Split, see “— Determination of the Reverse Stock Split Ratio” and “— Board Discretion to Effect the Reverse Stock Split.”
The text of the proposed amendment to the Company’s Certificate of Incorporation to effect the Reverse Stock Split is included as Appendix B to this Proxy Statement (the “Reverse Stock Split Amendment”). If the Reverse Stock Split Proposal is approved by the Company’s stockholders, the Company will have the authority to file the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware, which will become effective upon its filing, or such later date as is chosen by the Board and set forth in the Certificate of Amendment; provided, however, that the Reverse Stock Split Amendment is subject to revision to include such changes as may be required by the office of the Secretary of State of the State of Delaware and as the Board deems necessary and advisable. The Board has determined that the amendment is advisable and in the best interests of the Company and its stockholders and has submitted the amendment for consideration by our stockholders at the Special Meeting. In addition, the Reversed Stock Split Amendment is subject to adjustment to reflect any change as a result of the approval of Proposal 2.
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Reasons for the Reverse Stock Split
Maintain Nasdaq Listing
We are submitting this proposal to our stockholders for approval in order to increase the trading price of our Common Stock to meet the minimum per share bid price requirement for continued listing on The Nasdaq Stock Market. We believe increasing the trading price of our Common Stock may also assist in our capital-raising efforts by making our Common Stock more attractive to a broader range of investors. Accordingly, we believe that the Reverse Stock Split is in our stockholders’ best interests.
On November 21, 2022, we received a letter from the Listing Qualifications Department of the Nasdaq Stock Market (“Nasdaq”) indicating that, based upon the closing bid price of Common Stock for the thirty (30) consecutive business day period between October 10, 2022 to November 18, 2022, the Company did not meet the minimum bid price of $1.00 per share required for continued listing on The Nasdaq Stock Market pursuant to Nasdaq Listing Rule 5550(a)(2). The letter also indicated that the Company would be provided with a compliance period of one hundred eighty (180) calendar days, or until May 22, 2023 (the “Compliance Period”), in which to regain compliance pursuant to Nasdaq Listing Rule 5810(c)(3)(A). In order to regain compliance with Nasdaq’s minimum bid price requirement, our Common Stock must maintain a minimum closing bid price of $1.00 for at least ten (10) consecutive business days during the Compliance Period.
We believe that the Reverse Stock Split is our best option to meet the criteria to satisfy the minimum per share bid price requirement for continued listing on The Nasdaq Stock Market. A decrease in the number of outstanding shares of our Common Stock resulting from the Reverse Stock Split should, absent other factors, assist in ensuring that the per share market price of our Common Stock remains above the requisite price for continued listing. However, we cannot provide any assurance that our minimum bid price would remain over the minimum bid price requirement of The Nasdaq Stock Market following the Reverse Stock Split.
In addition, as noted above, we believe that the Reverse Stock Split and the resulting increase in the per share price of our Common Stock could encourage increased investor interest in our Common Stock and promote greater liquidity for our stockholders. A greater price per share of our Common Stock could allow a broader range of institutions to invest in our Common Stock (namely, funds that are prohibited or discouraged from buying stocks with a price below a certain threshold), potentially increasing marketability, trading volume and liquidity of our Common Stock. Many institutional investors view stocks trading at low prices as unduly speculative in nature and, as a result, avoid investing in such stocks. We believe that the Reverse Stock Split will provide the Board flexibility to make our Common Stock a more attractive investment for these institutional investors, which we believe will enhance the liquidity for the holders of our Common Stock and may facilitate future sales of our Common Stock. The Reverse Stock Split could also increase interest in our Common Stock for analysts and brokers who may otherwise have policies that discourage or prohibit them in following or recommending companies with low stock prices. Additionally, because brokers’ commissions on transactions in low-priced stocks generally represent a higher percentage of the stock price than commissions on higher-priced stocks, the current average price per share of our Common Stock can result in individual stockholders paying transaction costs representing a higher percentage of their total share value than would be the case if the share price were substantially higher.
The Board intends to effect the Reverse Stock Split only if it believes that a decrease in the number of shares outstanding is in the best interests of the Company and our stockholders and is likely to improve the trading price of our Common Stock and improve the likelihood that we will be allowed to maintain our listing on The Nasdaq Stock Market. Accordingly, our Board approved the Reverse Stock Split as being in the best interests of the Company.
Risks Associated with the Reverse Stock Split
The Reverse Stock Split May Not Increase the Price of our Common Stock Over the Long-Term.
As noted above, the principal purpose of the Reverse Stock Split is to increase the trading price of our Common Stock to meet the minimum stock price standards of The Nasdaq Stock Market. However, the effect of the Reverse Stock Split on the market price of our Common Stock cannot be predicted with any certainty, and we cannot assure you that the Reverse Stock Split will accomplish this objective for any meaningful period of time, or at all. While we expect that the reduction in the number of outstanding shares of Common Stock will proportionally increase the market price of our Common Stock, we cannot assure you that the Reverse Stock Split will increase the market price of our Common Stock by a multiple of the Reverse Stock Split ratio, or result in any permanent or sustained increase in the market price of our Common Stock. The market price of our Common Stock may be affected by other factors which may be unrelated to the number of shares outstanding, including the Company’s business and financial performance, general market conditions, and prospects for future success.
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The Reverse Stock Split May Decrease the Liquidity of our Common Stock.
The Board believes that the Reverse Stock Split may result in an increase in the market price of our Common Stock, which could lead to increased interest in our Common Stock and possibly promote greater liquidity for our stockholders. However, the Reverse Stock Split will also reduce the total number of outstanding shares of Common Stock, which may lead to reduced trading and a smaller number of market makers for our Common Stock, particularly if the price per share of our Common Stock does not increase as a result of the Reverse Stock Split.
The Reverse Stock Split May Lead to a Decrease in our Overall Market Capitalization.
The Reverse Stock Split may be viewed negatively by the market and, consequently, could lead to a decrease in our overall market capitalization. If the per share market price of our Common Stock does not increase in proportion to the Reverse Stock Split ratio, then the value of our Company, as measured by our market capitalization, will be reduced. Additionally, any reduction in our market capitalization may be magnified as a result of the smaller number of total shares of Common Stock outstanding following the Reverse Stock Split.
Potential Consequences if the Reverse Stock Split Proposal is Not Approved
If the Reverse Stock Split Proposal is not approved by our stockholders, our Board will not have the authority to effect the Reverse Stock Split Amendment to, among other things, facilitate the continued listing of our Common Stock on The Nasdaq Stock Market by increasing the per share trading price of our Common Stock to help ensure a share price high enough to satisfy the $1.00 per share minimum bid price requirement. Any inability of our Board to effect the Reverse Stock Split could expose us to delisting from The Nasdaq Stock Market.
Determination of the Reverse Stock Split Ratio
The Board believes that stockholder approval of a range of potential Reverse Stock Split ratios is in the best interests of our Company and stockholders because it is not possible to predict market conditions at the time the Reverse Stock Split would be implemented. We believe that a range of Reverse Stock Split ratios provides us with the most flexibility to achieve the desired results of the Reverse Stock Split. The Reverse Stock Split ratio to be selected by our Board will be not more than 1-for-35.
The selection of the specific Reverse Stock Split ratio will be based on several factors, including, among other things:
| ● | our ability to maintain the listing of our Common Stock on The Nasdaq Stock Market; |
| ● | the per share price of our Common Stock immediately prior to the Reverse Stock Split; |
| ● | the expected stability of the per share price of our Common Stock following the Reverse Stock Split; |
| ● | the likelihood that the Reverse Stock Split will result in increased marketability and liquidity of our Common Stock; |
| ● | prevailing market conditions; |
| ● | general economic conditions in our industry; and |
| ● | our market capitalization before and after the Reverse Stock Split. |
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We believe that granting our Board the authority to set the ratio for the Reverse Stock Split is essential because it allows us to take these factors into consideration and to react to changing market conditions. If the Board chooses to implement the Reverse Stock Split, the Company will make a public announcement regarding the determination of the Reverse Stock Split ratio.
Board Discretion to Effect the Reverse Stock Split
If the Reverse Stock Split proposal is approved by our stockholders, the Board will have the discretion to implement the Reverse Stock Split or to not effect the Reverse Stock Split at all. The Board currently intends to effect the Reverse Stock Split. If the trading price of our Common Stock increases without effecting the Reverse Stock Split, the Reverse Stock Split may not be necessary. Following the Reverse Stock Split, if implemented, there can be no assurance that the market price of our Common Stock will rise in proportion to the reduction in the number of outstanding shares resulting from the Reverse Stock Split or that the market price of the post-split Common Stock can be maintained above $1.00. There also can be no assurance that our Common Stock will not be delisted from Nasdaq for other reasons.
If our stockholders approve the Reverse Stock Split proposal at the Special Meeting, the Reverse Stock Split will be effected, if at all, only upon a determination by the Board that the Reverse Stock Split is in the best interests of the Company and its stockholders at that time. No further action on the part of the stockholders will be required to either effect or abandon the Reverse Stock Split. If our Board does not implement the Reverse Stock Split prior to the one-year anniversary of the date on which the Reverse Stock Split is approved by the Company’s stockholders at the Special Meeting, the authority granted in this proposal to implement the Reverse Stock Split will terminate and the Reverse Stock Split Amendment will be abandoned.
The market price of our Common Stock is dependent upon our performance and other factors, some of which are unrelated to the number of shares outstanding. If the Reverse Stock Split is effected and the market price of our Common Stock declines, the percentage decline as an absolute number and as a percentage of our overall market capitalization may be greater than would occur in the absence of the Reverse Stock Split. Furthermore, the reduced number of shares that will be outstanding after the Reverse Stock Split could significantly reduce the trading volume and otherwise adversely affect the liquidity of our Common Stock.
We have not proposed the Reverse Stock Split in response to any effort of which we are aware to accumulate our shares of Common Stock or obtain control of the Company, nor is it a plan by management to recommend a series of similar actions to our Board or our stockholders. Notwithstanding the decrease in the number of outstanding shares of Common Stock following the Reverse Stock Split, our Board does not intend for this transaction to be the first step in a “going private transaction” within the meaning of Rule 13e-3 of the Exchange Act.
Effects of the Reverse Stock Split
Effects of the Reverse Stock Split on Issued and Outstanding Shares.
If the Reverse Stock Split is effected, it will reduce the total number of issued and outstanding shares of Common Stock, including shares held by the Company as treasury shares, by a Reverse Stock Split ratio between 1-for-20 and 1-for-35. Accordingly, each of our stockholders will own fewer shares of Common Stock as a result of the Reverse Stock Split. However, the Reverse Stock Split will affect all stockholders uniformly and will not affect any stockholder’s percentage ownership interest in the Company, except to the extent that the Reverse Stock Split would result in an adjustment to a stockholder’s ownership of Common Stock due to the treatment of fractional shares in the Reverse Stock Split. Therefore, voting rights and other rights and preferences of the holders of Common Stock will not be affected by the Reverse Stock Split (other than as a result of the treatment of fractional shares). Common stock issued pursuant to the Reverse Stock Split will remain fully paid and nonassessable, and the par value per share of Common Stock will remain $0.0001.
As of the Record Date, the Company had [●] shares of Common Stock outstanding. For purposes of illustration, if the Reverse Stock Split is effected at a ratio between 1-for-20 and 1-for-35, the number of issued and outstanding shares of Common Stock after the Reverse Stock Split would be approximately [●] shares and [●] shares, respectively.
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We are currently authorized to issue a maximum of 30,000,000 shares of our Common Stock. As of the Record Date, there were [●] shares of our Common Stock issued and outstanding. Although the number of authorized shares of our Common Stock will not change as a result of the Reverse Stock Split, subject to Proposal 1, the number of shares of our Common Stock issued and outstanding will be reduced in proportion to the ratio selected by the Board. Thus, the Reverse Stock Split will effectively increase the number of authorized and unissued shares of our Common Stock available for future issuance by the amount of the reduction effected by the Reverse Stock Split.
Following the Reverse Stock Split, the Board will have the authority, subject to applicable securities laws, to issue all authorized and unissued shares without further stockholder approval, upon such terms and conditions as the Board deems appropriate. We do not currently have any plans, proposals or understandings to issue the additional shares that would be available if the Reverse Stock Split is approved and effected, but some of the additional shares underlie warrants, which could be exercised after the Reverse Stock Split Amendment is effected.
Effects of the Reverse Stock Split on Outstanding Equity Awards and Plans.
If the Reverse Stock Split is effected, the terms of equity awards granted under the 2021 Plan including (i) the number of shares and type of Common Stock (or the securities or property) which thereafter may be made the subject of awards; (ii) the number of shares and type of Common Stock (or other securities or property) subject to outstanding awards; (iii) the number of shares and type of Common Stock (or other securities or property) specified as the annual per-participant limitation under the 2021 Plan; (iv) the option price of each outstanding stock option; and (v) the amount, if any, paid for forfeited shares in accordance with the terms of the 2021 Plan, will be proportionally adjusted to the end that the same proportion of our issued and outstanding shares of Common Stock in each instance shall remain subject to exercise at the same aggregate exercise price; subject to adjustments for any fractional shares as described herein and provided, however, that the number of shares of Common Stock (or other securities or property) subject to any award shall always be a whole number. In addition, the total number of shares of Common Stock that may be the subject of future grants under the 2021 Plan, as well as any plan limits on the size of such grants (e.g., the 2021 Plan’s limit on the number of stock options or stock appreciation rights that may be granted to our executive officers in any calendar year) will be adjusted and proportionately decreased as a result of the Reverse Stock Split.
Effects of the Reverse Stock Split on Voting Rights.
Proportionate voting rights and other rights of the holders of Common Stock would not be affected by the Reverse Stock Split (other than as a result of the treatment of fractional shares). For example, a holder of 1% of the voting power of the outstanding Common Stock immediately prior to the effective time of the Reverse Stock Split would continue to hold 1% of the voting power of the outstanding Common Stock after the Reverse Stock Split.
Effects of the Reverse Stock Split on Regulatory Matters.
The Company is subject to the periodic reporting and other requirements of the Exchange Act. The Reverse Stock Split will not affect the Company’s obligation to publicly file financial and other information with the SEC.
Effects of the Reverse Stock Split on Authorized Share Capital.
The total number of shares of capital stock that we are authorized to issue will not be affected by the Reverse Stock Split.
Treatment of Fractional Shares in the Reverse Stock Split
The Company does not intend to issue fractional shares in the event that a stockholder owns a number of shares of Common Stock that is not evenly divisible by the Reverse Stock Split ratio. If the Reverse Stock Split is effected, each fractional share of Common Stock will be:
| ● | rounded up to the nearest whole share of Common Stock, if such shares of Common Stock are held directly; or |
| ● | rounded down to the nearest whole share of Common Stock, if such shares are subject to an award granted under the 2021 Plan, in order to comply with the requirements of Sections 409A and 424 of the Code. |
| 15 |
Effective Time of the Reverse Stock Split
If the Reverse Stock Split Proposal is approved by our stockholders, the Reverse Stock Split would become effective, if at all, when the Reverse Stock Split Amendment is accepted and recorded by the office of the Secretary of State of the State of Delaware, or such later date as determined by the Board and set forth in the Certificate of Amendment for the Reverse Stock Split. However, notwithstanding approval of the Reverse Stock Split Proposal by our stockholders, the Board will have the sole authority to elect whether or not and when to amend our Certificate of Incorporation to effect the Reverse Stock Split.
Uncertificated Shares-Book Entry
Stockholders who hold uncertificated shares of Common Stock electronically in “book-entry” form will have their holdings electronically adjusted by the Transfer Agent (and, for beneficial owners, by their brokers or banks that hold in “street name” for their benefit, as the case may be) to give effect to the Reverse Stock Split. If any certificate(s) or book-entry statement(s) representing pre-Reverse Stock Split shares of Common Stock to be exchanged contain a restrictive legend or notation, as applicable, the certificate(s) or book-entry statement(s) representing post-Reverse Stock Split shares of Common Stock will contain the same restrictive legend or notation.
Regulatory Approvals
The Reverse Stock Split will not be consummated, if at all, until after approval of the Company’s stockholders is obtained. The Company is not obligated to obtain any governmental approvals or comply with any state or federal regulations prior to consummating the Reverse Stock Split other than the filing of the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware.
Accounting Treatment of the Reverse Stock Split
If the Reverse Stock Split is effected, the par value per share of our Common Stock will remain unchanged at $0.0001. Accordingly, on the effective date of the Reverse Stock Split, the stated capital on the Company’s consolidated balance sheets attributable to our Common Stock will be reduced in proportion to the size of the Reverse Stock Split ratio, and the additional paid-in-capital account will be increased by the amount by which the stated capital is reduced. Our stockholders’ equity, in the aggregate, will remain unchanged. Per share net income or loss will be increased because there will be fewer shares of Common Stock outstanding. The Common Stock held in treasury will be reduced in proportion to the Reverse Stock Split ratio. The Company does not anticipate that any other accounting consequences, including changes to the amount of stock-based compensation expense to be recognized in any period, will arise as a result of the Reverse Stock Split.
Certain U.S. Federal Income Tax Consequences of the Reverse Stock Split
The following is a discussion of certain material U.S. federal income tax consequences of the Reverse Stock Split. This discussion is included for general information purposes only and does not purport to address all aspects of U.S. federal income tax law that may be relevant to stockholders in light of their particular circumstances. This discussion is based on the Code and current Treasury Regulations, administrative rulings and court decisions, all of which are subject to change, possibly on a retroactive basis, and any such change could affect the continuing validity of this discussion.
| 16 |
All stockholders are urged to consult with their own tax advisors with respect to the tax consequences of the Reverse Stock Split. This discussion does not address the tax consequences to stockholders that are subject to special tax rules, such as banks, insurance companies, regulated investment companies, personal holding companies, foreign entities, partnerships, nonresident alien individuals, broker-dealers and tax-exempt entities, persons holding shares as part of a straddle, hedge, conversion transaction or other integrated investment, U.S. holders (as defined below) subject to the alternative minimum tax or the unearned income Medicare tax and U.S. holders whose functional currency is not the U.S. dollar. This summary also assumes that the pre-Reverse Stock Split shares of Common Stock were, and the post-Reverse Stock Split shares of Common Stock will be, held as a “capital asset,” as defined in Section 1221 of the Code.
As used herein, the term “U.S. holder” means a holder that is, for U.S. federal income tax purposes:
| ● | a citizen or resident of the United States; |
| ● | a corporation or other entity taxed as a corporation created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
| ● | an estate the income of which is subject to U.S. federal income tax regardless of its source; or |
| ● | a trust (A) if a U.S. court is able to exercise primary supervision over the administration of the trust and one or more “U.S. persons” (as defined in the Code) have the authority to control all substantial decisions of the trust or (B) that has a valid election in effect to be treated as a U.S. person. |
In general, no gain or loss should be recognized by a stockholder upon the exchange of pre-Reverse Stock Split Common Stock for post-Reverse Stock Split Common Stock. The aggregate tax basis of the post-Reverse Stock Split Common Stock should be the same as the aggregate tax basis of the pre-Reverse Stock Split Common Stock exchanged in the Reverse Stock Split. A stockholder’s holding period in the post-Reverse Stock Split Common Stock should include the period during which the stockholder held the pre-Reverse Stock Split Common Stock exchanged in the Reverse Stock Split.
As noted above, we will not issue fractional shares of Common Stock in connection with the Reverse Stock Split. In certain circumstances, stockholders who would be entitled to receive fractional shares of Common Stock because they hold a number of shares not evenly divisible by the Reverse Stock Split ratio will automatically be entitled to receive an additional fraction of a share of Common Stock to round up to the next whole post-Reverse Stock Split share of Common Stock. The U.S. federal income tax consequences of the receipt of such an additional fraction of a share of Common Stock is not clear.
The tax treatment of a stockholder may vary depending upon the particular facts and circumstances of such stockholder. Each stockholder is urged to consult with such stockholder’s own tax advisor with respect to the tax consequences of the Reverse Stock Split.
Vote Required
If a quorum is present at the Special Meeting, this proposal will be approved by our stockholders if a majority of voting power of the outstanding shares of our Common Stock and Series C Preferred Stock entitled to vote, vote “FOR” this proposal together as a single class. Abstentions and broker non-votes will have the same effect as an “AGAINST” vote on this proposal. However, this proposal is a routine matter and brokers and other nominees may generally vote in their discretion on routine matters, and therefore broker non-votes are not expected on this proposal.
OUR BOARD RECOMMENDS A VOTE “FOR” PROPOSAL 2.
| 17 |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table and accompanying footnotes set forth information regarding the beneficial ownership of our Common Stock, including shares issuable upon the exercise or conversion of securities that entitle the holders to obtain Common Stock upon exercise or conversion) and our shares of Series C Preferred Stock as of March 3, 2023, or Record Date, by:
| ● | each person who is known to be the beneficial owner of more than 5% of our Common Stock; |
| ● | each of our current executive officers and each of our current directors; and |
| ● | all of our executive officers and directors as a group. |
Under the rules and regulations of the SEC, a person is a “beneficial owner” of a security if that person has or shares “voting power,” which includes the power to vote or to direct the voting of the security, or “investment power,” which includes the power to dispose of or to direct the disposition of the security or has the right to acquire such powers within sixty (60) days.
The beneficial ownership of shares of our Common Stock excludes any Common Stock underlying any preferred stock or warrants issued to or owned by 3i, L.P., a Delaware limited partnership, in excess of a beneficial ownership limitation of 9.99%, and any securities that not exercisable or convertible within sixty (60) days of the Record Date,
The beneficial ownership of our Common Stock is based on [●] shares of Common Stock and [●] shares of Series A Preferred Stock issued and outstanding as of the Record Date. As of the Record Date, there were [●] shares of Series C Preferred Stock outstanding which are not reflected in the columns relating to beneficial ownership of Common Stock below since no shares of Series C can be converted within sixty (60) days of the Record Date.
Unless otherwise noted in the footnotes to the following table, and subject to applicable community property laws, the persons and entities named in the table have sole voting and investment power with respect to their beneficially owned Common Stock. Additionally, in order to illustrate the outstanding voting power of the respective beneficial owners as of the Record Date, the following table does not reflect record or beneficial ownership of any shares of Common Stock issuable upon exercise of warrants, options, or convertible preferred stock, to the extent such securities are exercisable or convertible within sixty (60) days of the Record Date.
| Name of Beneficial Owner(1) | Number of Common Stock Beneficially Owned | Percentage of Class | Number of Shares of Series C Preferred Stock Beneficially Owned | Percentage of Class | Percentage of Total Voting Power on Proposals** | |||||||||||||||
| 5% and Greater Holders: | ||||||||||||||||||||
| 3i, L.P.(2) | ||||||||||||||||||||
| Directors and Executive Officers: | ||||||||||||||||||||
| James G. Cullem(3) | ||||||||||||||||||||
| Joan Brown | ||||||||||||||||||||
| Marie Foegh(4) | ||||||||||||||||||||
| Steen Knudsen(5) | ||||||||||||||||||||
| Thomas H. Jensen(6) | ||||||||||||||||||||
| David Roth(7) | ||||||||||||||||||||
| Søren Gade Jensen(8) | ||||||||||||||||||||
| Gerald McLaughlin (9) | ||||||||||||||||||||
| All directors and executive officers as a group (8 individuals) | ||||||||||||||||||||
| * | Less than one percent (1%). |
| ** | Holders of Series C Preferred Stock and Common Stock as of the Record Date are entitled to vote at the Special Meeting. Holders of Series C Preferred Stock are only entitled to vote for the Share Increase Proposal and the Reverse Stock Split Proposal. Each holder of one (1) share of Common Stock is entitled to one (1) vote. Each holder of one (1) share of Series C Preferred Stock is entitled to six hundred twenty (620) votes. Shares of Series A Preferred Stock have no voting rights. |
| 18 |
| (1) | Unless otherwise noted, the business address of each of the following entities or individuals is c/o Allarity Therapeutics, Inc., 24 School Street, 2nd Floor, Boston, MA 02108. |
| (2) | Interests include [●] shares of Common Stock issuable pursuant to exercise of shares of Series A Preferred Stock, subject to the beneficial ownership limitation of 9.99%. Excludes interests issuable upon exercise of shares of Series A Preferred stock and warrants that exceed beneficial ownership limitation of 9.99%. Also excludes shares of Common Stock issuable upon conversion of Series C Preferred Stock which are not exercisable within sixty (60) days as of the Record Date. The business address of 3i, LP (“3i, L.P.”) is 140 Broadway, 38th Floor, New York, NY 10005. 3i, L.P.’s principal business is that of a private investor. Maier Joshua Tarlow is the manager of 3i Management, LLC, the general partner of 3i, L.P., and has sole voting control and investment discretion over securities beneficially owned directly or indirectly by 3i Management, LLC and 3i, L.P, |
| (3) | Interests shown include [●] shares of Common Stock issuable upon exercise of vested options within sixty (60) days. |
| (4) | Interests shown include [●] shares of Common Stock and [●] shares of Common Stock issuable upon exercise of vested options within sixty (60) days. |
| (5) | Interests shown include [●] shares of Common Stock and [●] shares of Common Stock issuable upon exercise of vested options within sixty (60) days. |
| (6) | Interests shown include [●] shares of Common Stock and 107,663 shares issuable upon exercise of vested options within sixty (60) days. |
| (7) | Interests shown include [●] shares of Common Stock issuable upon exercise of vested options within sixty (60) days. |
| (8) | Interests shown includes [●] shares of Common Stock and [●] shares of Common Stock issuable upon exercise of vested options within sixty (60) days. |
| (9) | Interests shown include [●] shares of Common Stock issuable upon exercise of vested options within sixty (60) days. |
| 19 |
STOCKHOLDER PROPOSALS FOR THE 2024 ANNUAL MEETING OF STOCKHOLDERS
Submission of Stockholder Nominations for Director
Stockholders may propose candidates for board membership by providing timely written notice to the Company’s Secretary at Allarity Therapeutics, Inc., 24 School Street, 2nd Floor, Boston, Massachusetts 02108. To be timely, Section 2.12 of our Amended and Restated Bylaws (the “Bylaws”) requires that a stockholder’s written notice is delivered to the Corporate Secretary at the principal executive offices of the Company no later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, in advance of the anniversary of the previous year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such anniversary date, to be timely such notice must be received no earlier than the close of business on the 120th day prior to the annual meeting and no later than the close of business on the later of: (1) the 90th day prior to the annual meeting and (2) the close of business on the 10th day following the first date on which the date of such meeting is publicly disclosed. Accordingly, with respect to our 2024 annual meeting of stockholders (the “2024 Annual Meeting”), our Bylaws require written notice to be delivered to the Secretary at the principal executive offices of the Company, as early as October 6, 2023, but no later than November 5, 2023, unless the 2024 Annual Meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from February 3, 2024, which is the anniversary of the previous year’s annual meeting.
Such stockholder’s notice for the nomination of any person(s) for election to the Board of Directors must include all the information relating to such nominee and to the proposing stockholder as set forth under Section 2.12(b) of the Bylaws, which can be found at:
https://www.sec.gov/Archives/edgar/data/1860657/000121390021053762/fs42021a2ex3-4_allarity.htm.
In addition, the Company may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of that proposed nominee to serve as a director of the Company.
Submission of Stockholder Proposals
Pursuant to Section 2.12 of the Bylaws, a stockholder who wishes to have a proposal be included in our proxy statement and form of proxy relating to the 2024 Annual Meeting must deliver a written copy of their proposal to the Corporate Secretary at the principal executive offices of the Company no later than the close of business on the 90th day, nor earlier than the close of business on the 120th day, in advance of the anniversary of the previous year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such anniversary date, to be timely such notice must be received no earlier than the close of business on the 120th day prior to the annual meeting and no later than the close of business on the later of: (1) the 90th day prior to the annual meeting and (2) the close of business on the 10th day following the first date on which the date of such meeting is publicly disclosed. Accordingly, with respect to our 2024 Annual Meeting, our Bylaws require written notice to be delivered to the Secretary at the principal executive offices of the Company, as early as October 6, 2023, but no later than November 5, 2023, unless advanced by more than thirty (30) days or delayed by more than sixty (60) days from February 3, 2024, which is the anniversary of the previous year’s annual meeting.
| 20 |
Stockholder proposals must include, as to each matter proposed, the information required under Section 2.12(c) of the Bylaws and the information required of the proposing stockholder under Section 2.12(b)(vi) of the Bylaws. In addition, all proposals must comply with the provisions of the Bylaws and Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, unless such proposal is being made only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement prepared by the Company to solicit proxies for such meeting. See “Rule 14a-8” below.
Proxy Access Director Nominations
Section 2.13 of the Bylaws permits up to 20 stockholders owning 3% or more of the Company’s outstanding voting stock continuously for at least three (3) years to nominate and include in the Company’s proxy materials director nominees for election which shall not exceed the greater of one individual or 20% of the number of directors in office that are standing for election, provided that the stockholder(s) and the nominee(s) satisfy the requirements specified under Section 2.13 of the Bylaws.
Section 2.13 of the Bylaws requires eligible stockholders to give advance notice of any proxy access director nomination. The required notice, which must include the information and documents set forth in the Bylaws, must be delivered to the Secretary at the principal executive officer of the Company no later than one hundred twenty (120) days nor more than one hundred fifty (150) days prior to the first anniversary of the date that the Company’s definitive proxy statement was first sent to stockholders in connection with the previous year’s annual meeting; provided, however, that in the event that the date of the annual meeting is advanced by more than thirty (30) days or delayed by more than sixty (60) days from such anniversary, the notice must be delivered not earlier than the close of business on the 150th day prior to such annual meeting and no later than the close of business on the later of: (i) the 120th day prior to such annual meeting; or (ii) the 10th day following the day on which the date of such meeting is publicly disclosed. Accordingly, with respect to our 2024 Annual Meeting, our Bylaws require notice to be delivered to the Secretary at the address for the Company’s principal executive offices, as early as July 12, 2023, but no later than August 11, 2023, unless advanced by more than thirty (30) days or delayed by more than sixty (60) days from December 9, 2023, which is the anticipated day of the anniversary of the mailing of the Company’s definitive proxy statement for the previous year’s annual meeting.
Rule 14a-8
Pursuant to Section 2.12(f) of the Bylaws, Sections 2.12 and 2.13 described above shall not apply to a proposal proposed to be made by a stockholder if the stockholder has notified the Company of the stockholder’s intention to present the proposal at an annual or special meeting only pursuant to and in compliance with Rule 14a-8 under the Exchange Act and such proposal has been included in a proxy statement that has been prepared by the Company to solicit proxies for such meeting. Under Rule 14a-8, the deadline to submit a proposal is not less than one hundred twenty (120) days before the date of the Company’s proxy statement was released to stockholders in connection with the previous year’s annual meeting. However, if the date of the 2024 Annual Meeting has been changed by more than thirty (30) days from the date of the prior year’s annual meeting, then the deadline is a reasonable time before the company begins to print and send its proxy materials. In addition, there are additional requirements that a stockholder must satisfy to submit a proposal under Rule 14a-8. Therefore, the Company strongly encourages stockholders who wish to submit a proposal or nomination to seek independent counsel. The Company will not consider any proposal or nomination that is not timely or otherwise does not meet the Bylaws and Rule 14a-8 requirements. The Company reserves the right to reject, rule out of order, or take other appropriate action with respect to any proposal that does not comply with these and other applicable requirements.
Mailing Instructions
Stockholder written proposals should be delivered to Allarity Therapeutics, Inc., c/o Corporate Secretary, 24 School Street, 2nd Floor, Boston, Massachusetts 02108. To avoid controversy and establish timely receipt by the Company, it is suggested that stockholders send their proposals by certified mail, return receipt requested.
| 21 |
SHARING THE SAME LAST NAME AND ADDRESS
To reduce the expense of delivering duplicate proxy materials to stockholders who may have more than one account holding our stock but who share the same address, we have adopted a procedure approved by the SEC called “householding.” Under this procedure, certain stockholders of record who have the same address and last name will receive only one copy of our proxy materials until such time as one or more of these stockholders notifies us that they want to receive separate copies. This procedure reduces duplicate mailings and saves printing costs and postage fees, as well as natural resources. Stockholders who participate in householding will continue to have access to and utilize separate proxy voting instructions.
If you receive a single set of proxy materials as a result of householding, and you would like to have separate copies of our annual report or proxy statement mailed to you, please submit a request to our Corporate Secretary at Allarity Therapeutics, Inc., 24 School Street, 2nd Floor, Boston, Massachusetts 02108 or contact us by phone at (401) 426-4664, and we will promptly send you what you have requested. You can also contact our Corporate Secretary at the telephone number provided if you received multiple copies of the Special Meeting materials and would prefer to receive a single copy in the future, or if you would like to opt out of householding for future mailings.
As of the time of preparation of this Proxy Statement, we do not know of any matter to be acted upon at the Special Meeting other than the matters described in this Proxy Statement. If any other matter properly comes before the Special Meeting, however, the proxy holders will vote the proxies thereon in accordance with the recommendation of our Board.
The Company’s proxy materials are available at http://www.edocumentview.com/ALLR. A copy of the Company’s Annual Report on Form 10-K for the year ended December 31, 2021, is available without charge upon written request to: Allarity Therapeutics, Inc., Attention: Investor Relations investorrelations@allarity.com. We will provide copies of exhibits to the Annual Report on Form 10-K, if requested, but will charge a reasonable fee per page to any requesting stockholder. The request must include a representation by the stockholder that as of March 3, 2023, the stockholder was entitled to vote at the Special Meeting.
| 22 |
SECOND CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
ALLARITY THERAPEUTICS, INC.
Allarity Therapeutics, Inc., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the “Corporation”), does hereby certify that:
1. This Second Certificate of Amendment to Certificate of Incorporation (this “Second Amendment”) amends certain provisions of the Corporation’s original Certificate of Incorporation filed with the Secretary of the State of Delaware on April 6, 2021, and as amended by that certain Certificate of Amendment dated July 30, 2021 (as amended, the “Certificate of Incorporation”).
2. The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141(f) and 242 of the General Corporation Law of the State of Delaware (the “DGCL”), has duly adopted resolutions approving the amendment set forth in this Second Amendment, declaring said amendment to be advisable and in the best interests of the Corporation and its stockholders, and directing that such amendment be considered for stockholder approval at the Special Meeting of Stockholders held on _______________( the “Special Meeting”), which meeting was noticed and has been held in accordance with Section 222.
3. This Second Amendment was duly adopted by the affirmative vote of the holders of the majority of the outstanding shares of the Corporation’s common stock entitled to vote thereon at the Corporation’s Special Meeting, in accordance with the provisions of Section 242 of the DGCL, and Articles FIFTH and TWELFTH of the Certificate of Incorporation.
4. The Certificate of Incorporation is hereby amended by deleting the first paragraph of Article FIFTH thereof in its entirety and by substituting in lieu of said paragraph the following paragraph in its entirety:
FIFTH: The total number of shares of all classes of capital stock that the Corporation is authorized to issue is 750,500,000 shares, consisting of (i) 750,000,000 shares of common stock, par value $0.0001 per share (the “Common Stock”), and (ii) 500,000 shares of preferred stock, par value $0.0001 per share (the “Preferred Stock”). 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 Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL, and no vote of the holders of any of the Common Stock or Preferred Stock voting separately as a class shall be required therefor.
5. Except as set forth in this Second Amendment, the Certificate of Incorporation remains in full force and effect.
| A-1 |
IN WITNESS WHEREOF, the Corporation has caused this Second Amendment to be duly executed in its name and on its behalf by a duly authorized officer of the Corporation on this __ day of _________, 20__.
| By: | ||
| Name: | ||
| Title: | Chief Executive Officer |
[SIGNATURE PAGE TO SECOND CERTIFICATE OF AMENDMENT]
| A-2 |
THIRD CERTIFICATE OF AMENDMENT
TO
CERTIFICATE OF INCORPORATION
OF
ALLARITY THERAPEUTICS, INC.
Allarity Therapeutics, Inc., a corporation organized and existing under the laws of the State of Delaware (hereinafter called the “Corporation”), does hereby certify that:
1. This Third Certificate of Amendment to Certificate of Incorporation (this “Third Amendment”) amends certain provisions of the Corporation’s original Certificate of Incorporation filed with the Secretary of the State of Delaware on April 6, 2021, as amended by that certain Certificate of Amendment dated July 30, 2021, [as further amended by that Second Certificate of Amendment dated _____] (as amended, the “Certificate of Incorporation”).
2. The Board of Directors of the Corporation, acting in accordance with the provisions of Sections 141(f) and 242 of the General Corporation Law of the State of Delaware (the “DGCL”), has duly adopted resolutions approving the amendment set forth in this Third Amendment, declaring said amendment to be advisable and in the best interests of the Corporation and its stockholders, and directing that such amendment be considered for stockholder approval at the Special Meeting of Stockholders held on _______________( the “Special Meeting”), which meeting was noticed and has been held in accordance with Section 222.
3. This Third Amendment was duly adopted by the affirmative vote of the holders of the majority of the outstanding shares of the Corporation’s common stock entitled to vote thereon at the Corporation’s Special Meeting, in accordance with the provisions of Section 242 of the DGCL, and Articles FIFTH and TWELFTH of the Certificate of Incorporation.
4. Resolutions were duly adopted by the Board of Directors of the Corporation, in accordance with the provisions of the Certificate of Incorporation set forth below, providing that, effective as of _____________, New York time, on ________, each ________________ (_____) issued and outstanding shares of the Corporation’s Common Stock, par value $0.0001 per share, shall be converted into [_______________] (_____) share of the Corporation’s Common Stock, par value $0.0001 per share, as constituted following such date.
5. The Certificate of Incorporation is hereby amended by adding, immediately following the first paragraph of FIFTH thereof, the following paragraph:
“Upon the effectiveness of the filing of this Certificate of Amendment ____________(the “Effective Time”) each share of the Corporation’s common stock, $0.0001 par value per share (the “Old Common Stock”), either issued or outstanding or held by the Corporation as treasury stock, immediately prior to the Effective Time, will be automatically reclassified and combined (without any further act) into a smaller number of shares such that each [_________(_______) to _________(____)] shares of Old Common Stock issued and outstanding or held by the Company as treasury stock immediately prior to the Effective Time is reclassified into one share of Common Stock, $0.0001 par value per share, of the Corporation (the “New Common Stock”), the exact ratio within such range to be determined by the Board of Directors prior to the Effective Time and publicly announced by the Company (the “Reverse Stock Split”). [The Board of Directors shall make provision for the issuance of that number of fractions of New Common Stock such that any fractional share of a holder otherwise resulting from the Reverse Stock Split shall be rounded up to the next whole number of shares of New Common Stock. Stockholders who hold uncertificated shares of Old Common Stock electronically in “book-entry” form will have their holdings electronically adjusted by the Transfer Agent (and, for beneficial owners, by their brokers or banks that hold in “street name” for their benefit, as the case may be) to give effect to the Reverse Stock Split and will automatically be adjusted to reflect the New Common Stock.
Any stock certificate that, immediately prior to the Effective Time, represented shares of the Old Common Stock will, from and after the Effective Time, automatically and without the necessity of presenting the same for exchange, be converted to Book Entries representing the number of shares of the New Common Stock into which such shares of Old Common Stock shall have been reclassified of a share of New Common Stock, with any resulting fractional shares rounded up to the nearest whole share, issued as aforesaid.
6. Except as set forth in this Third Amendment, the Certificate of Incorporation remains in full force and effect.
| B-1 |
IN WITNESS WHEREOF, the Corporation has caused this Third Amendment to be duly executed in its name and on its behalf by a duly authorized officer of the Corporation on this __ day of _________, 20__.
| By: | ||
| Name: | ||
| Title: | Chief Executive Officer |
[SIGNATURE PAGE TO THIRD CERTIFICATE OF AMENDMENT]
B-2