Enveric Biosciences, Inc PRE 14A, filed Mar 19, 2021
Enveric Biosciences, Inc. (ENVB)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934 (Amendment No. )
Filed by the Registrant [X] Filed by a Party other than the Registrant [ ]
Check the appropriate box:
| [X] | 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 Pursuant to §240.14a-12 |
ENVERIC BIOSCIENCES, 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 the appropriate box):
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
| (1) | Title of each class of securities to which transaction applies: | ||
| (2) | Aggregate number of securities to which transaction applies: | ||
| (3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined): | ||
| (4) | Proposed maximum aggregate value of transaction: | ||
| (5) | Total fee paid: | ||
[ ] Fee paid previously with preliminary materials:__________________________
[ ] Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
| (1) | Amount previously paid: | ||
| (2) | Form, Schedule or Registration Statement No.: |
| (3) | Filing Party: |
| (4) | Date Filed: |
ENVERIC BIOSCIENCES, INC.
4851 Tamiami Trail N., Suite 200
Naples, Florida 34103
______________, 2021
Dear Stockholders:
We cordially invite you to attend a special meeting of the stockholders (the “Special Meeting”) of Enveric Biosciences, Inc., a Delaware corporation (“we,” “us,” “our” or the “Company”), which will be held on May 14, 2021, at 10:00 a.m. Eastern time at www.virtualshareholdermeeting.com/ENVB2021SM. In light of the ongoing developments related to the novel coronavirus (“COVID-19”), the Company has determined that the Special Meeting will be a virtual meeting conducted exclusively via live webcast. You or your proxyholder will be able to attend the virtual Special Meeting online, vote, view the list of stockholders entitled to vote at the Special Meeting and submit questions during the Special Meeting by visiting www.virtualshareholdermeeting.com/ENVB2021SM and entering the 16-digit control number on your proxy card or voting instruction form, as applicable. To register and receive access to the virtual Special Meeting, registered stockholders and beneficial stockholders (those holding shares through a stock brokerage account or by a bank or other holder of record) will need to follow the instructions applicable to them provided in the accompanying proxy statement.
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 Stockholders Meeting and proxy statement. You are entitled to vote at our Special Meeting and any adjournments, continuations or postponements thereof only if you were a stockholder as of April 8, 2021.
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. As an alternative to voting online during the Special Meeting, you may vote via the Internet, by telephone, or by signing, dating and returning the accompanying proxy card.
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 meeting and vote online during the meeting.
On behalf of the board of directors, I urge you to submit your vote as soon as possible, even if you currently plan to attend the Special Meeting online.
If you have any questions regarding the attached proxy statement or need assistance in voting your shares of common stock, please contact our proxy solicitor, Kingsdale Advisors, by telephone at 1-866-851-2468 (stockholders) and 416-867-2272 (brokers, banks and other nominees), or by email at contactus@kingsdaleadvisors.com.
Thank you for your ongoing support of our Company.
| By | order of the Board of Directors, | |
| David Ian Johnson | ||
| Chief Executive Officer and Chairman of the Board of Directors |
ENVERIC BIOSCIENCES, INC.
4851 Tamiami Trail N, Suite 200
Naples, FL 34103
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held on May 14, 2021
Notice is hereby given that a special meeting of the stockholders (the “Special Meeting”) of Enveric Biosciences, Inc., a Delaware corporation (the “Company”), will be held on May 14, 2021, at 10:00 a.m. Eastern time via a live webcast on the Internet. You will be able to virtually attend the Special Meeting online, vote and submit questions during the Special Meeting by visiting www.virtualshareholdermeeting.com/ENVB2021SM during the meeting. Only stockholders of record of our common stock on April 8, 2021 (the “Record Date”) will be entitled to vote at the Special Meeting and any adjournments, continuations or postponements thereof that may take place. We are holding the Special Meeting for the following purposes, which are more fully described in the accompanying proxy statement:
1. To ratify the filing and effectiveness of the certificate of amendment to the Company’s amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware on December 30, 2020 (the “Reverse Stock Split Amendment”) and the one-for-four reverse stock split of the Company’s common stock (the “2020 Reverse Stock Split”) that was effected thereby and became effective on December 30, 2020 (collectively, the “Reverse Stock Split Amendment Ratification”); and
2. To approve an adjournment of the Special Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event there are not sufficient votes in favor of the Reverse Stock Split Amendment Ratification (the “Adjournment Proposal”).
As described in the proxy statement accompanying this notice, because there may be uncertainty regarding the validity or effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split, our Board of Directors is submitting the Reverse Stock Split Amendment Ratification to the Company’s stockholders in order to eliminate such uncertainty. The Reverse Stock Split Amendment Ratification is being submitted to our stockholders pursuant to Section 204 of the Delaware General Corporation Law (the “DGCL”) and Delaware common law. Under Section 204 of the DGCL, stockholders of record as of December 30, 2020 (including holders of our non-voting preferred stock), other than holders whose identities or addresses cannot be determined from our records, as well as holders of record of our non-voting preferred stock as of the record date for the Special Meeting, are being given notice of the Special Meeting, but are not entitled to attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were also holders of our common stock as of April 8, 2021, the record date for the Special Meeting.
As discussed in the proxy statement accompanying this notice, in the Reverse Stock Split Amendment Ratification, the stockholders are being asked to vote upon the ratification of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split (in which each four outstanding shares of common stock were combined into one share of common stock (with fractional shares being rounded up to the nearest whole share), resulting in the combination of all previously outstanding shares of the Company’s common stock into a total of approximately 9.85 million shares of common stock). As noted above and as further described in the proxy statement, there may be uncertainty with respect to the validity or effectiveness of those acts. Specifically, certain shares of common stock held through a broker, bank or other nominee and with respect to which the beneficial owner had not provided the broker, bank or other nominee with voting instructions, were voted by the broker, bank or other nominee in favor of the approval of Reverse Stock Split Amendment and the 2020 Reverse Stock Split in what was considered to be in accordance with the rules of the New York Stock Exchange. Certain statements made in the Company’s definitive proxy statement and prospectus for the Company’s Special Meeting of Stockholders held on December 29, 2020 (the “December 29 Meeting”) were inconsistent with this approach. Therefore, although our Board of Directors believes that the Reverse Stock Split Amendment and the 2020 Reverse Stock Split have been properly approved and are effective, our Board of Directors approved the ratification of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split pursuant to Section 204 of the DGCL and Delaware common law in order to eliminate any uncertainty related to the effectiveness of these corporate acts.
This notice and the accompanying proxy statement (including the resolutions adopted by the Company’s Board of Directors attached to the accompanying proxy statement as Appendix A and the text of Sections 204 and 205 of the DGCL attached to the accompanying proxy statement as Appendix B) constitute the notice required to be given to our stockholders under Section 204 of the DGCL in connection with the Reverse Stock Split Amendment Ratification and is being given to stockholders of record (both voting and non-voting) as of the Record Date and to stockholders of record (both voting and non-voting), as of December 30, 2020, other than holders whose identities or addresses cannot be determined from our records. However, such holders of our stock (both voting and non-voting) of record as of December 30, 2020 are not entitled to virtually attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were also holders of such stock as of the Record Date.
Under Sections 204 and 205 of the DGCL, when a matter is submitted for ratification at a stockholders meeting, any claim that a defective corporate act ratified under Section 204 is void or voidable due to the failure of authorization, or that the Delaware Court of Chancery should declare, in its discretion, that a ratification in accordance with Section 204 of the DGCL not be effective or be effective only on certain conditions, must, in either case, be brought within 120 days from the time a certificate of validation is filed with the secretary of state of the State of Delaware and becomes effective in accordance with the DGCL. The Company expects to file a certificate of validation for the Reverse Stock Split Amendment Ratification that is approved by our stockholders promptly after the Special Meeting. Accordingly, if the Reverse Stock Split Amendment Ratification is approved at the Special Meeting, any claim that the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split, are void or voidable due to the failure to receive the requisite stockholder approval at the December 29 Meeting, or that the Delaware Court of Chancery should declare, in its discretion, that the Reverse Stock Split Amendment Ratification not be effective or be effective only on certain conditions, must, in either case, be brought within 120 days from the time at which a certificate of validation filed with respect to such Reverse Stock Split Amendment Ratification becomes effective under the DGCL (which, with respect to the Reverse Stock Split Amendment Ratification, will be the applicable “validation effective time” as set forth in the Reserve Stock Split Amendment Ratification).
Stockholders are referred to the proxy statement accompanying this notice for more detailed information with respect to the matters to be considered at the Special Meeting. After careful consideration, the Board of Directors has determined that each proposal listed above is in the best interests of the Company and its stockholders and has approved each proposal. The Board of Directors recommends a vote FOR the Reverse Stock Split Amendment Ratification (Proposal 1) and FOR the Adjournment Proposal (Proposal 2).
The Board of Directors has fixed the close of business on April 8, 2021 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 to vote at the Special Meeting or at any postponement(s) or, continuations(s), or adjournment(s) of the Special Meeting. Additionally, in compliance with Section 204 of the DGCL, this notice and the accompanying proxy statement is being given to our stockholders of record (both voting and non-voting) as of December 30, 2020 (other than holders whose identities or addresses cannot be determined from our records), although such stockholders will not be entitled to attend or vote at the Special Meeting unless they were also stockholders of record as of the Record Date. 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 10 calendar days prior to the Special Meeting and online during the Special Meeting.
YOUR VOTE AT THE SPECIAL MEETING IS IMPORTANT.
Whether or not you plan to attend the Special Meeting online, we urge you to vote your shares as promptly as possible by Internet, telephone or mail.
On behalf of our entire Board of Directors, we thank you for your continued support.
| By | order of the Board of Directors, | |
| David Ian Johnson | ||
| Chief Executive Officer and Chairman of the Board of Directors | ||
Naples, Florida |
||
| _______, 2021 |
ENVERIC BIOSCIENCES, INC.
4851 Tamiami Trail N., Suite 200
Naples, FL 34103
PROXY STATEMENT
FOR
SPECIAL MEETING OF STOCKHOLDERS
To Be Held on May 14, 2021
Unless the context otherwise requires, references in this proxy statement to “we,” “us,” “our,” the “Company” or “Enveric” refer to Enveric Biosciences, Inc., a Delaware corporation and its consolidated subsidiary as a whole. In addition, unless the context otherwise requires, references to “stockholders” are to the holders of our common stock, par value $0.01 per share (“Common Stock”).
The accompanying proxy is solicited by the Board of Directors (the “Board”) on behalf of Enveric Biosciences, Inc. to be voted at the Company’s Special Meeting of Stockholders (the “Special Meeting”) to be held on May 14, 2021, and at any adjournment, continuation or postponement thereof, for the purposes set forth in the accompanying Notice of Special Meeting of Stockholders (the “Notice”). The Special Meeting will be held virtually via a live webcast on the Internet on May 14, 2021 at 10:00 a.m. Eastern time. This proxy statement and accompanying form of proxy are dated April ___, 2021 and are expected to be first sent or given to stockholders on or about April ___, 2021.
If you held shares of our Common Stock at the close of business on April 8, 2021 (the “Record Date”), you are invited to attend the Special Meeting virtually at www.virtualshareholdermeeting.com/ENVB2021SM and if you held shares of our Common Stock at the close of business on the Record Date, you are invited to vote on the proposals described in this proxy statement.
The executive offices of the Company are located at, and the mailing address of the Company is, 4851 Tamiami Trail N., Suite 200, Naples, FL 34103.
The Company will pay the costs of soliciting proxies from stockholders. We have retained Kingsdale Advisors to assist in the solicitation of proxies for a fee of $_____ plus reimbursement of expenses. In addition to solicitation by mail and by Kingsdale Advisors, our directors, officers and employees may solicit proxies on behalf of the Company, without additional compensation, by telephone, facsimile, mail, on the Internet or in person.
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting of Stockholders to be Held on May 14, 2021: Pursuant to SEC rules, with respect to the Special Meeting, we have elected to utilize the “full set delivery” option of providing paper copies of all of our proxy materials by mail. The Notice of Special Meeting and Proxy Statement are also available at www.proxyvote.com.
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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING
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.”
What is a proxy statement?
A proxy statement is a document that regulations of the SEC require that we give to you when we ask you to sign a proxy card to vote your stock at the Special Meeting.
What is the purpose of the Special Meeting?
At the Special Meeting, stockholders will act upon the following proposals:
| ● | The ratification of the filing and effectiveness of the certificate of amendment to the Company’s amended and restated certificate of incorporation filed with the Secretary of State of the State of Delaware on December 30, 2020 (the “Reverse Stock Split Amendment”) and the one-for-four reverse stock split of the Company’s Common Stock (the “2020 Reverse Stock Split”) that was effected thereby and became effective on December 30, 2020 (the “Reverse Stock Split Amendment Ratification”); and | |
| ● | The approval of an adjournment of the Special Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event there are not sufficient votes in favor of the Reverse Stock Split Amendment Ratification (the “Adjournment Proposal”). |
As further described in this proxy statement, we have determined that there may be uncertainty regarding the validity and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split and are submitting the Reverse Stock Split Amendment Ratification to the Company’s stockholders in order to eliminate such uncertainty. The Reverse Stock Split Amendment Ratification is being submitted to our stockholders pursuant to Section 204 of the Delaware General Corporation Law, or DGCL, and Delaware common law. Under Section 204 of the DGCL, stockholders of record as of December 30, 2020 (both voting and non-voting), other than holders whose identities or addresses cannot be determined from our records, are being given notice of the Special Meeting but are not entitled to attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were also holders of our Common Stock as of April 8, 2021, the record date for the Special Meeting (the “Record Date”).
This proxy statement (including the resolutions adopted by the Company’s Board attached to this proxy statement as Appendix A and the text of Sections 204 and 205 of the DGCL attached to this proxy statement as Appendix B) and the accompanying Notice constitute the notice required to be given to our stockholders under Section 204 of the DGCL in connection with the Reverse Stock Split Amendment Ratification and is being given to our stockholders of record (including holders of our non-voting preferred stock) as of the Record Date and to stockholders of record as of December 30, 2020 (both voting and non-voting), other than holders whose identities or addresses cannot be determined from our records. However, such holders of our stock (both voting and non-voting) of record as of December 30, 2020 are not entitled to virtually attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were also holders of such stock as of the Record Date.
Under Sections 204 and 205 of the DGCL, when a matter is submitted for ratification at a stockholders meeting, any claim that a defective corporate act ratified under Section 204 is void or voidable due to the failure of authorization, or that the Delaware Court of Chancery should declare, in its discretion, that a ratification in accordance with Section 204 of the DGCL not be effective or be effective only on certain conditions, must, in either case, be brought within 120 days from the time a certificate of validation is filed with the secretary of state of the State of Delaware and becomes effective in accordance with the DGCL. The Company expects to file a certificate of validation for the Reverse Stock Split Amendment Ratification that is approved by our stockholders promptly after the Special Meeting. Accordingly, if the Reverse Stock Split Amendment Ratification is approved at the Special Meeting, any claim that the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split, as applicable, are void or voidable due to the failure to receive the requisite stockholder approval at the Company’s Special Meeting of Stockholders held on December 29, 2020 (the “December 29 Meeting”), or that the Delaware Court of Chancery should declare, in its discretion, that the Reverse Stock Split Amendment Ratification not be effective or be effective only on certain conditions, must, in either case, be brought within 120 days from the time at which a certificate of validation filed with respect to such Reverse Stock Amendment Ratification becomes effective under the DGCL (which, with respect to the Reverse Stock Split Amendment Ratification, will be the applicable “validation effective time” as set forth in the Reserve Stock Split Amendment Ratification).
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What is the record date and what does it mean?
The Record Date to determine the stockholders entitled to notice of and to vote at the Special Meeting is the close of business on April 8, 2021. The Record Date is established by the Board as required by Delaware law. On the Record Date, _________ shares of Common Stock were issued and outstanding.
Who is entitled to vote at the Special Meeting?
Holders of Common Stock at the close of business on the Record Date may vote at the Special Meeting.
In connection with the Reverse Stock Split Amendment Ratification, stockholders of record (both voting and non-voting) as of December 30, 2020, other than holders whose identities or addresses cannot be determined from our records, are being given notice of the Special Meeting under Section 204 of the DGCL. However, such holders of our stock as of December 30, 2020 are not entitled to virtually attend the Special Meeting or vote on any matter presented at the Special Meeting unless they were a stockholder of record as of the Record Date.
What are the voting rights of the stockholders?
Each share of our Common Stock entitles the holder to one vote on all matters to come before the Special Meeting.
When and where is the Special Meeting and what do I need to be able to attend online?
The Special Meeting will be held on May 14, 2021, at 10:00 a.m. Eastern time at www.virtualshareholdermeeting.com/ENVB2021SM. Any stockholder who owns our Common Stock on the Record Date can attend the Special Meeting online.
You will be able to attend the Special Meeting online, vote, view the list of stockholders entitled to vote at the Special Meeting and submit your questions during the Special Meeting by visiting www.virtualshareholdermeeting.com/ENVB2021SM. To participate in the virtual meeting, you will need a 16-digit control number included on your proxy card or voting instruction form, as applicable. The meeting webcast will begin promptly at 10:00 a.m. Eastern time. We encourage you to access the meeting prior to the start time and you should allow ample time for the check-in procedures. Because the Special Meeting will be a completely virtual meeting, there will be no physical location for stockholders to attend.
How do I cast my vote?
If you are a stockholder of record, there are four ways to vote:
| (1) | By Internet at www.proxyvote.com 24 hours a day, seven days a week, until 11:59 p.m. Eastern time on May 13, 2021 (have your 16-digit stockholder control number, which can be found on your proxy card, in hand when you access the website); |
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| (2) | By toll-free telephone at [1-800-______], until 11:59 p.m. Eastern time on May 13, 2021 (have your 16-digit stockholder control number, which can be found on your proxy card, in hand when you call); | |
| (3) | By completing, signing, dating and mailing your proxy card in the postage-paid envelope we have provided or returning it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717; or | |
| (4) | Online during the Special Meeting at www.virtualshareholdermeeting.com/ENVB2021SM. You will need your 16-digit stockholder control number, which can be found on your proxy card, in hand when you vote online during the Special Meeting. |
By completing and submitting a proxy, you will direct the designated persons (known as “proxies”) to vote your stock at the Special Meeting in accordance with your instructions. The Board has appointed David Johnson, our Chief Executive Officer and Chairman of the Board of Directors, and John Van Buiten, our Chief Financial Officer, to serve as the proxies for the Special Meeting.
In order to be counted, proxies submitted by telephone or Internet must be received by 11:59 p.m. Eastern time on May 13, 2021. Proxies submitted by U.S. mail must be received before the start of the Special Meeting.
Your proxy will be voted according to your instructions. If you are a stockholder of record and do not vote via the Internet or telephone or by returning a signed proxy card, your shares will not be voted unless you virtually attend the Special Meeting and vote your shares online. If you vote via the Internet or telephone and do not specify contrary voting instructions, your shares will be voted in accordance with the recommendations of our Board on all matters, and in the discretion of proxy holders as to any other matters that may properly come before the meeting or any adjournment, continuation or postponement thereof. Similarly, if you sign and submit your proxy card or voting instruction card with no instructions, your shares will be voted in accordance with the recommendations of our Board on all matters, and in the discretion of proxy holders as to any other matters that may properly come before the meeting or any adjournment, continuation or postponement thereof. We know of no other business to be considered at the Special Meeting.
If your shares are registered in the name of a broker, bank or other nominee (typically referred to as being held in “street name”), there are four ways to vote:
| (1) | By Internet at www.proxyvote.com 24 hours a day, seven days a week, until 11;59 p.m. Eastern time on May 13, 2021 (have your 16-digit stockholder control number, which can be found on your voting instruction form, in hand when you access the website); | |
| (2) | By toll-free telephone at 1-800-[________], until 11:59 p.m. Eastern time on May 13, 2021 (have your 16-digit stockholder control number, which can be found on your voting instruction form, in hand when you call); | |
| (3) | By completing, signing, dating and mailing your voting instruction form in the postage-paid envelope provided to you; or | |
| (4) | Online during the Special Meeting at www.virtualshareholdermeeting.com/ENVB2021SM. You will need your 16-digit shareholder control number, which can be found on your voting instruction form, in hand when you vote online during the Special Meeting. |
In the event you do not provide instructions on how to vote, your broker will have authority to vote your shares. Under the rules that govern brokers who are voting with respect to shares that are held in street name, brokers have the discretion to vote such shares on “routine” matters, but not on “non-routine” matters. The NYSE has informed us that each of the Reverse Stock Split Amendment Ratification and the Adjournment Proposal is a “routine” matter. Accordingly, your broker, bank or other nominee may vote your shares without receiving instructions from you on Proposal 1 (Reverse Stock Split Amendment Ratification) and Proposal 2 (Adjournment Proposal). A failure to instruct your broker, bank or other nominee on how to vote your shares will not necessarily count as a vote against the proposal.
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What are my choices when voting?
| When you cast your vote on: | |||
| Proposal 1: | You may vote FOR the proposal, AGAINST the proposal or ABSTAIN. | ||
| Proposal 2: | You may vote FOR the proposal, AGAINST the proposal or ABSTAIN. | ||
How does the Board recommend I vote on the proposals?
The Board recommends you vote:
● “FOR” the Reverse Stock Split Amendment Ratification; and
● “FOR” the Adjournment Proposal.
What is a “quorum?”
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 a majority 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, withheld votes, 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; however, as discussed above, all proposals currently scheduled to be considered at the Special Meeting are “routine,” and accordingly, we do not expect any broker non-votes.
What vote is required to approve each item?
| The following table sets forth the voting requirement with respect to each of the proposals: | ||
| Proposal 1 — Reverse Stock Split Amendment Ratification. | To be approved by stockholders, this proposal must receive the affirmative “FOR” vote of the holders of a majority of the shares of Common Stock outstanding. | |
| Proposal 2 – Adjournment Proposal. | To be approved by stockholders, this proposal must receive the affirmative “FOR” vote of a majority of shares of the Common Stock present in person (which would include voting online at the virtual Special Meeting) or represented by proxy at the Special Meeting and entitled to vote on the proposal. | |
How are abstentions and broker non-votes treated?
Each of the failure to vote by proxy or to vote in person (which would include voting online at the virtual Special Meeting), an abstention and a broker non-vote will have the same practical effect as a vote against the Reverse Stock Split Amendment Ratification. Each of the failure to vote by proxy or to vote in person (which would include voting online at the virtual Special Meeting) and a broker non-vote will have no effect on the Adjournment Proposal. An abstention will have the same practical effect as a vote against the Adjournment Proposal. As described above, the NYSE has informed us that each of the Reverse Stock Split Amendment Ratification and the Adjournment Proposal is a “routine” matter. Accordingly, your broker, bank or other nominee may vote your shares without receiving instructions from you on Proposal 1 (Reverse Stock Split Amendment Ratification) and Proposal 2 (Adjournment Proposal) and we do not expect any broker non-votes. A failure to instruct your broker, bank or other nominee on how to vote your shares will not necessarily count as a vote against the proposal.
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Can I revoke or change my proxy?
You may revoke your proxy and change your vote at any time before the final vote at the Special Meeting. You may vote again on a later date via the Internet or by telephone (only your latest Internet or telephone proxy submitted prior to the Special Meeting will be counted), by signing and returning a proxy card or voting instructions form with a later date, or by attending the Special Meeting and voting via the virtual meeting website. However, your attendance at the Special Meeting will not automatically revoke your proxy unless you vote again at the Special Meeting or specifically request that your prior proxy is revoked by delivering to the Company’s corporate secretary at 4851 Tamiami Trail N., Suite 200, Naples, Florida 34103 a written notice of revocation prior to the Special Meeting.
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.
What does it mean if I get more than one set of voting materials?
Your shares are probably registered in more than one account. Please provide voting instructions for all proxy and voting instruction cards you receive.
Whom do I call if I have questions?
If you have any questions, need additional material, or need assistance in voting your shares, please feel free to contact the firm assisting us in the solicitation of proxies, Kingsdale Advisors. Brokers, banks and other nominees may call 416-867-2272. Stockholders may call toll free at 1-866-851-2468. Or you may contact Kingsdale Advisors by email at contactus@kingsdaleadvisors.com.
Where can I find the voting results of the Special Meeting?
The preliminary voting results will be announced at the Special Meeting. The final results will be published in a Current Report on Form 8-K to be filed by us with the SEC within four business days of the meeting.
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PROPOSAL 1
RATIFICATION
OF THE FILING AND EFFECTIVENESS OF THE CERTIFICATE OF
AMENDMENT TO OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION FILED WITH THE SECRETARY OF STATE OF THE STATE OF DELAWARE
ON DECEMBER 30, 2020 AND THE REVERSE STOCK SPLIT EFFECTED THEREBY
Our Board has determined that it is in the best interests of the Company and our stockholders to ratify, pursuant to Section 204 of the DGCL and Delaware common law, the filing and effectiveness of the Certificate of Amendment to our Amended and Restated Certificate of Incorporation filed with the Secretary of State of the State of Delaware on December 30, 2020 (the “Reverse Stock Split Amendment”) and the one-for-four reverse stock split that was effected thereby (the “2020 Reverse Stock Split”) and became effective on December 30, 2020. This ratification shall be retroactive to the effectiveness of the filing of the Reverse Stock Split Amendment and of the 2020 Reverse Stock Split.
Background
As described in the Proxy Statement/Prospectus of our predecessor, AMERI Holdings, Inc. (“Ameri”), filed with the SEC on November 13, 2020, Ameri, Jay Pharma Inc. (“Jay Pharma”) and certain other parties entered into a Tender Offer Support Agreement and Termination of Amalgamation Agreement (the “Tender Agreement”) dated effective as of August 12, 2020. The Tender Agreement provided that, among other things, Ameri will make a tender offer (the “Offer”) to purchase all of the outstanding shares of Jay Pharma in exchange for shares of Ameri. On December 30, 2020, the Offer was completed, which resulted in the pre-Offer stockholders of Jay Pharma owning approximately 82.3% of Ameri (which changed its name to “Enveric Biosciences, Inc.” in connection with the consummation of the Offer), and with Jay Pharma continuing as our wholly-owned subsidiary. As a condition to the completion of the Offer, the Company was required to effect a reverse stock split with a ratio between 1-for-2 and 1-for-25 to take effect immediately following the Offer, with the purpose of raising the per-share market price of the Company’s common stock above $6.00 per share so that the listing of the Company’s common stock on Nasdaq would be approved.
At the Special Meeting of Stockholders held on December 29, 2020 (the “December 29 Meeting”), we sought stockholder approval of an amendment to our Amended and Restated Certificate of Incorporation pursuant to the Reverse Stock Split Amendment to effect the 2020 Reverse Stock Split, which stockholder approval included the authorization of our Board to file such Reverse Stock Split Amendment to implement a reverse stock split of our Common Stock at a ratio of not less than 1-for-2 and not greater than 1-for-25, immediately following the effective time of the Offer, with the exact ratio to be determined by our Board of Directors (the “Reverse Stock Split Proposal”). The reasons that we sought approval of the 2020 Reverse Stock Split included a determination by the Ameri board of directors that it was in the Company’s best interest and in the best interests of our stockholders to increase the price of the Company’s Common Stock above $6.00 per share so that the Common Stock could meet the listing requirements on Nasdaq.
At the December 29 Meeting, our inspector of elections determined that the Reverse Stock Split Proposal received the requisite stockholder approval and certified that the proposal passed. As part of this determination, votes cast by brokers, banks or other nominees without instruction from the beneficial owners of certain of our outstanding shares were counted in favor of the Reverse Stock Split Proposal in what was considered to be in accordance with the rules of the New York Stock Exchange (“NYSE) that govern how brokers may cast such votes. These NYSE rules are applicable to brokers, banks and other nominees regardless of whether the issuer is listed on the NYSE or Nasdaq. Therefore, these rules apply to us as a Nasdaq listed company. Had such votes not been counted in favor of the proposal, the proposal would have failed. Certain statements made in the definitive proxy statement and prospectus for the December 29 Meeting, which was filed by Ameri with the SEC on November 13, 2020 (the “Proxy Statement/Prospectus”), are inconsistent with allowing brokers, banks and other nominees to cast votes without instruction. The Proxy Statement/Prospectus stated that brokers would not have discretion to vote for the Reverse Stock Split Proposal without instruction, and that broker non-votes would be counted “against” the proposal.
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Our inspector of elections for the December 29 Meeting certified that the Reverse Stock Split Proposal passed. Following the December 29 Meeting, our Board approved a ratio of one-for-four for the 2020 Reverse Stock Split and we subsequently filed the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware on December 30, 2020. A question has been raised regarding the validity of the vote on the Reverse Stock Split Proposal due to, among other things, the disclosures in the Proxy Statement/Prospectus regarding the authority of brokers to vote on the Reverse Stock Split Proposal without instruction.
Our Board, in consultation with counsel, has determined that the description of the authority of brokers, banks and other nominees to vote on Reverse Stock Split Proposal without instruction in the Proxy Statement/Prospectus may create some uncertainty as to the effect of the vote obtained on the Reverse Stock Split Proposal at the December 29 Meeting. As a result, although our Board believes that the Reverse Stock Split Amendment and the 2020 Reverse Stock Split have been properly approved and are effective, our Board has determined that it is in the best interests of the Company and our stockholders to ratify the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split pursuant to Section 204 of the DGCL and Delaware common law in order to eliminate any uncertainty related to the effectiveness of these corporate acts. If the ratification of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split (the “Reverse Stock Split Amendment Ratification”) is approved by the stockholders and becomes effective, the ratification will be retroactive to December 30, 2020, which was the date of the filing of the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware and the date on which the 2020 Reverse Stock Split became effective.
Our Board of Directors Has Approved the Ratification of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split
Section 204 of the DGCL allows a Delaware corporation, by following specified procedures, to ratify a corporate act retroactive to the date the corporate act was originally taken. The Company does not believe that it is clear that the filing and effectiveness of the Reverse Stock Split Amendment and 2020 Reverse Stock Split are invalid and ineffective. However, our Board of Directors has determined that it would be advisable and in the best interests of the Company and its stockholders to ratify the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split pursuant to Section 204 of the DGCL and Delaware common law in order to eliminate any uncertainty related to their validity or effectiveness and unanimously adopted the resolutions attached hereto as Appendix A (such resolutions are incorporated herein by reference) approving the Reverse Stock Split Amendment Ratification. Our Board also recommended that our stockholders approve the Reverse Stock Split Amendment Ratification for purposes of Section 204 of the DGCL and Delaware common law, and directed that the Reverse Stock Split Amendment Ratification be submitted to our stockholders for approval.
The text of sections 204 and 205 of the DGCL are attached hereto as Appendix B.
Filing of a Certificate of Validation
Upon the receipt of the required vote of the stockholders to approve the Reverse Stock Split Amendment Ratification, we intend to file a certificate of validation with respect to the Reverse Stock Split Amendment and the 2020 Reverse Stock Split with the Secretary of State of the State of Delaware (the “Certificate of Validation”). The time that the filing of the Certificate of Validation with the Secretary of State of the State of Delaware becomes effective in accordance with the DGCL will be the validation effective time of the Reverse Stock Split Amendment Ratification within the meaning of Section 204 of the DGCL.
Retroactive Ratification of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split
Subject to the 120-day period for bringing claims discussed below, when the Certificate of Validation becomes effective in accordance with the DGCL, it should eliminate any possible uncertainty as to whether the Reverse Stock Split Amendment and the 2020 Reverse Stock Split are void or voidable as a result of the potential failure of authorization described above, and the effect of the ratification will be retroactive to December 30, 2020, which was the date of the filing of the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware and the date on which the 2020 Reverse Stock Split became effective.
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Time Limitations on Legal Challenges to the Ratification of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split
If the Reverse Stock Split Amendment Ratification becomes effective, under the DGCL, any claim that the Reverse Stock Split Amendment or the 2020 Reverse Stock Split ratified pursuant to the Reverse Stock Split Amendment Ratification is void or voidable due to a failure of authorization, or that the Delaware Court of Chancery should declare, in its discretion, that the Reverse Stock Split Amendment Ratification not be effective or be effective only on certain conditions, must be brought within 120 days from the time that the filing of the Certificate of Validation with the Secretary of State of the State of Delaware becomes effective in accordance with the DGCL.
The Consequences if the Reverse Stock Split Amendment Ratification is Not Approved by the Stockholders
If the Reverse Stock Split Amendment Ratification is not approved by the requisite vote of stockholders, we will not be able to file the Certificate of Validation with the Secretary of State of the State of Delaware and the Reverse Stock Split Amendment Ratification will not become effective, in accordance with Section 204 of the DGCL. While our Board believes that the Reverse Stock Split Amendment and the 2020 Reverse Stock Split have been properly approved and are effective, the failure to approve the Reverse Stock Split Amendment Ratification may leave us exposed to potential claims that (i) the vote on the Reverse Stock Split Proposal did not receive requisite stockholder approval, (ii) the Reverse Stock Split Amendment therefore was not validly adopted and the 2020 Reverse Stock Split was not validly effected, and (iii) actions taken by us in reliance on the 2020 Reverse Stock Split (such as stock issuances) were improperly effected.
Vote Required
The affirmative “FOR” vote of the holders of a majority of the outstanding shares of our Common Stock is required to approve this proposal. Each of the failure to vote by proxy or to vote in person (which would include voting online at the virtual Special Meeting), an abstention and a broker non-vote will have the same practical effect as shares voted against this proposal. The NYSE has informed us that a vote on this proposal will be a “routine” matter. Therefore, we do not expect any broker non-votes on this proposal and a failure to instruct your broker, bank or other nominee on how to vote your shares will not necessarily count as a vote against this proposal.
Board Recommendation
Our Board recommends a vote “FOR” the Reverse Stock Split Amendment Ratification.
PROPOSAL 2
THE ADJOURNMENT PROPOSAL
Proposal
The Company is asking its stockholders to approve an adjournment of the Special Meeting from time to time, if necessary or appropriate, to permit further solicitation of proxies and vote of proxies in the event there are not sufficient votes in favor of Proposal 1 (Reverse Stock Split Amendment Ratification) (the “Adjournment Proposal”).
Vote Required
The affirmative “FOR” vote of a majority of the shares of Common Stock present in person (which would include voting online at the virtual Special Meeting) or represented by proxy at the Special Meeting and entitled to vote on this proposal is required to approve this proposal. Each of the failure to vote by proxy or to vote in person (which would include voting online at the virtual Special Meeting) and a broker non-vote will have no effect on the Adjournment Proposal. An abstention will have the same practical effect as a vote against this proposal. As described above, the NYSE has informed us that the Adjournment Proposal is a “routine” matter. Therefore, your broker, bank or other nominee may vote your shares without receiving instructions from you on this proposal and accordingly, we do not expect any broker non-votes on this proposal. A failure to instruct your broker, bank or other nominee on how to vote your shares will not necessarily count as a vote against this proposal.
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Board Recommendation
Our Board recommends that you vote “FOR” the Adjournment Proposal.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information with respect to the beneficial ownership of our Common Stock as of March 17, 2021, by:
| ● | each person known by us to be the beneficial owner of more than five percent of our outstanding shares of Common Stock;
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| ● | each director;
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| ● | each of the named executive officers identified in the “Summary Compensation Table” under Executive Compensation in the Company’s Proxy Statement filed with the SEC on November 4, 2020 as well as the executive officers of the Company as of March 17, 2021 ; and
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| ● | all directors and executive officers of the Company as a group. |
The percentages of Common Stock beneficially owned are reported on the basis of regulations of the SEC governing the determination of beneficial ownership of securities. Under the rules of the SEC, a person is deemed to be 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.
Except as indicated in the footnotes to this table, each beneficial owner named in the table below has sole voting and sole investment power with respect to all shares beneficially owned and each person’s address is c/o Enveric Biosciences, Inc. 4851 Tamiami Trail N., Suite 200, Naples, FL 34103. As of March 17, 2021, we had 19,449,975 shares of Common Stock outstanding.
| Name of Beneficial Owner | Number of Shares Beneficially Owned | Percentage of Shares Outstanding | ||||||
| 5% Owners | ||||||||
| Alpha Capital Anstalt (1) | 2,159,220 | 9.99 | % | |||||
| David Stefansky (2) | 1,288,816 | 6.56 | % | |||||
| TO Pharmaceuticals (3) | 2,299,001 | 11.82 | % | |||||
| Officers and Directors | ||||||||
| Brent Kelton (4) | 44,486 | * | ||||||
| Barry Kostiner (5) | 28,486 | * | ||||||
| Srinidhi (Dev) Devanur (6) | 130,044 | * | ||||||
| David Ian Johnson | — | — | ||||||
| Avani Kanubaddi | — | — | ||||||
| John Van Buiten | — | — | ||||||
| Robert G. Wilkins | — | — | ||||||
| George Kegler | — | — | ||||||
| Sol Mayer | — | — | ||||||
| Marcus Schabacker | — | — | ||||||
| Douglas Lind | — | — | ||||||
| All current directors and executive officers as a group (8 persons)) | — | — | ||||||
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* Represents less than 1%
| (1) | The address of Alpha Capital Anstalt is Lettstrasse 32, FL-9490 Vaduz, Furstentums, Liechtenstein. Alpha Capital Anstalt is the beneficial owner of 2,159,220 shares of Common Stock including (i) 513 shares of Common Stock and (ii) 2,158,707 shares of Common Stock underlying warrants that are currently exercisable. Alpha Capital Anstalt has sole voting power and sole dispositive power over such shares of Common Stock. As of March 17, 2021, Alpha Capital Anstalt owns additional warrants that would be exercisable up to 1,500,440 additional shares of Common Stock, except for a limitation set forth in the warrant agreements that restricts Alpha Capital Anstalt’s ability to exercise the warrants if such exercise would result in Alpha Capital Anstalt (including its affiliates) owning more than 9.99% of the Company’s currently outstanding number of shares of Common Stock. Thus, the number of shares of the Company’s Common Stock beneficially owned by Alpha Capital Anstalt as of March 17, 2021 was 2,159,220, which represents 9.99% beneficial ownership of the 19,449,975 shares of the Common Stock of the Company that were outstanding as of March 17, 2021. | |
| (2) | The address of David Stefansky and Bezalel Partners, LLC is 265 E. 66th St., Apt. 6C, New York, NY 10065. Includes (i) 931,855 shares of Common Stock held through Bezalel Partners, LLC (“Bezalel”), (ii) 150,836 shares of Common Stock held by Mr. Stefansky, and (iii) options held by Mr. Stefansky to purchase up to 206,125 shares of Common Stock that are currently exercisable. Mr. Stefansky is the natural person with voting and dispositive power over shares of Bezalel and is deemed to have beneficial ownership of the shares held by Bezalel. | |
| (3) | Based on a Schedule 13G filed February 10, 2021 by TO Pharmaceuticals LLC and TOP Invest LLC. The address of TO Pharmaceuticals and TOP Invest LLC is TO Pharmaceuticals, 77 Water St., 8th Floor, New York, New York 10005. According to the Schedule 13G, TO Pharmaceuticals LLC and TOP Invest LLC each have sole voting power and sole dispositive power with respect to 2,299,001 shares of Common . | |
| (4) | Former Chief Executive Officer resigned December 30, 2020. | |
| (5) | Former Chief Financial Officer resigned December 30, 2020. | |
| (6) | Former Executive Chairman resigned December 30, 2020. |
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OTHER MATTERS
The persons designated to vote shares covered by our proxies intend to exercise their judgment in voting such shares on other matters that may properly come before the Special Meeting or any adjournment, continuation or postponements thereof. Management does not expect that any matters other than those referred to in this proxy statement will be presented for action at the Special Meeting or any adjournment, continuation or postponements thereof.
DEADLINE FOR RECEIPT OF STOCKHOLDER PROPOSALS
If you want us to consider including a proposal in our proxy statement for our 2021 Annual Meeting of Stockholders you must deliver a copy of your proposal to Enveric’s Secretary at our corporate office at 4851 Tamiami Trail N, Suite 200, Naples, Florida 34103 no later than July 8, 2021, or, if the date of our 2021 Annual Meeting of Stockholders is more than 30 days from the anniversary date of the 2020 Annual Meeting of Stockholders, then the deadline is a reasonable time before we begin to print and send our proxy materials for our 2021 Annual Meeting of Stockholders.
If you intend to present a proposal at our 2021 Annual Meeting of Stockholders, including director nominations, but you do not intend to have it included in our 2021 Proxy Statement, you must deliver a copy of your proposal to Enveric’s Secretary at our corporate office listed above no earlier than August 24, 2021 and no later than the close of business on September 25, 2021. The proposal must contain certain information specified in our Bylaws; provided, however, that in the event that the date of our 2021 Annual Meeting of Stockholders is advanced by more than 30 days or delayed by more than 60 days from the anniversary date of the 2020 Annual Meeting of Stockholders, your notice will be timely if we receive it no earlier than the close of business on the 120th day prior to the 2021 Annual Meeting and no later than the close of business on the later of (i) the 90th day prior to such annual meeting, or (ii) the tenth day following the earlier of the date on which a public announcement setting forth the date of such meeting is first made.
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STOCKHOLDERS SHARING THE SAME ADDRESS
The SEC has adopted rules that permit companies and intermediaries, such as brokers, to satisfy delivery requirements for Special Meeting materials with respect to two or more stockholders sharing the same address by delivering a single set of Special Meeting materials addressed to those stockholders. This process, commonly referred to as “householding,” potentially provides extra convenience for stockholders and cost savings for companies. Because we utilize the “householding” rules for Special Meeting materials, stockholders who share the same address will receive only one copy of the Special Meeting materials, unless we receive contrary instructions from any stockholder at that address. If you prefer to receive multiple copies of the Special Meeting materials at the same address you share with other stockholders, additional copies will be provided to you promptly upon request. If you are a stockholder of record, you may obtain additional copies at the same address you share with other stockholders by contacting Broadridge Financial Solutions, Inc., either by calling (866) 540-7095, or by writing to Broadridge Householding Department, 51 Mercedes Way, Edgewood, New York 11717. Eligible stockholders of record receiving multiple copies of the Special Meeting materials can request householding by contacting Broadridge Financial Solutions, Inc. in the same manner. If you are a beneficial owner and hold your shares in a brokerage or custody account, you can request additional copies of the Special Meeting materials at the same address you share with other stockholders or you can request householding by notifying your broker, bank or other nominee.
| Sincerely, | |
| David Ian Johnson | |
| Chief Executive Officer and Chairman of the Board of Directors | |
|
Naples, Florida |
|
| _______, 2021 |
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APPENDIX A
Ratification Resolutions
WHEREAS, in connection with the approval of the Tender Offer Support Agreement and Termination of Amalgamation Agreement (the “Tender Agreement”) to be entered into by Ameri Holdings, Inc. (“Ameri”), predecessor to Enveric Biosciences, Inc. (the “Company” or the “Resulting Issuer”), Jay Pharma Inc. and certain other parties, the Board of Directors of Ameri approved: (i) a 1-for-2 to a 1-for-25 reverse stock split subject to stockholder approval and (ii) inclusion of a proposal (the “Reverse Stock Split Proposal”) in Ameri’s Proxy Statement/Prospectus filed with the SEC on November 13, 2020 (the “Proxy Statement/Prospectus”) for a special meeting of the Ameri stockholders to seek approval, among other things, of the Reverse Stock Split Proposal and an amendment to the Resulting Issuer’s Amended and Restated Certificate of Incorporation (the “Reverse Stock Split Amendment”) to effect the proposed reverse stock split immediately following the consummation of the tender offer contemplated by the Tender Agreement;
WHEREAS, at Ameri’s special meeting of stockholders held on December 29, 2020 (the “December 29, 2020 Meeting”), the Ameri stockholders approved the Reverse Stock Split Proposal, the Reverse Stock Split Amendment and the proposed reverse stock split to be effected thereby;
WHEREAS, on December 30, 2020, the Resulting Issuer filed the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware (the “Secretary of State”), which became effective at 4:02 p.m. (New York time) on December 30, 2020, which effected a 1-for-4 reverse stock split (the “2020 Reverse Stock Split”) as selected by the Board of Directors of the Resulting Issuer;
WHEREAS, the validity of the filing and effectiveness of the Reverse Stock Split Amendment and the resulting 2020 Reverse Stock Split has been challenged in a stockholder demand letter, dated January 21, 2021, due to statements in the Proxy Statement/Prospectus with respect to the authority of brokers, banks or other nominees to vote shares held in “street name” on the Reverse Stock Split Proposal and the Reverse Stock Split Amendment without instructions from the beneficial owner of such shares, and the fact that the votes cast by brokers, banks or other nominees were not tabulated consistent with such disclosure;
WHEREAS, in order to eliminate any uncertainty regarding the effectiveness of the Reserve Stock Split Amendment and the 2020 Reverse Stock Split effected thereby, the Board of Directors of the Company has determined that it is advisable and in the best interests of the Company and its stockholders to ratify the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split pursuant to and in accordance with Section 204 of the Delaware General Corporation Law (the “DGCL”) and Delaware common law;
WHEREAS, any claim that the ratification of a defective corporate act under Section 204 of the DGCL is void or voidable as a defective corporate act (as defined in Section 204(h) of the DGCL) due to the failure(s) of authorization, or that the Delaware Court of Chancery should declare, in its discretion, that the ratification thereof in accordance with Section 204 of the DGCL not be effective or be effective only on certain conditions, must be brought within the later of 120 days from the relevant validation effective time (which in the case of the ratification of the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split shall be the date on which the certificate of validation with respect to the Reverse Stock Split Amendment and 2020 Reverse Stock Split is filed with the Secretary of State and becomes effective in accordance with the DGCL).
NOW, THEREFORE, BE IT RESOLVED, that the potentially defective corporate acts to be ratified by these resolutions are (i) the filing of, and the amendment effected by, the Reverse Stock Split Amendment filed with the Secretary of State on December 30, 2020, and (ii) the combination and conversion of each four outstanding shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”), into one share of Common Stock pursuant to the 2020 Reverse Stock Split (with fractional shares rounded up to the nearest whole share), which resulted in the combination of all of the shares of Common Stock outstanding immediately prior to the effectiveness of the 2020 Reverse Stock Split into a total of approximately 9.85 million shares of Common Stock upon the effectiveness of the 2020 Reverse Stock Split;
| A-i |
RESOLVED FURTHER, that the date of the filing of the Reverse Stock Split Amendment with the Secretary of State is December 30, 2020, and the date of the effectiveness of the 2020 Reverse Stock Split, and the combination and conversion of shares of Common Stock referenced above that was effected by the 2020 Reverse Stock Split, is December 30, 2020;
RESOLVED FURTHER, the nature of the alleged failures of authorization in respect of the potentially defective corporate acts are:
| (i) | the Reverse Stock Split Amendment was submitted to Ameri’s stockholders for their approval at the December 29 Meeting, at which meeting the inspector of elections determined that the Reverse Stock Split Proposal received the requisite stockholder approval and, based on that determination, the Resulting Issuer filed the Reverse Stock Split Amendment with the Secretary of State on December 30, 2020 and effected the 2020 Reverse Stock Split on December 30, 2020; | |
| (ii) | as part of the determination that the Reverse Stock Split Amendment received the requisite stockholder approval, votes cast by brokers, banks or other nominees without instruction from the beneficial owners of certain of Ameri’s outstanding shares of Common Stock were counted as votes in favor of the adoption of the Reverse Stock Split Amendment (the “Broker Votes”) and the voting of these shares by the brokers, banks or other nominees without instruction from the beneficial owners was inconsistent with certain statements made in the Proxy Statement/Prospectus for the December 29 Meeting, which stated that brokers, banks or other nominees would not have discretion to vote on the Reverse Stock Split Proposal to approve the Reverse Stock Split Amendment without instruction from the respective beneficial owner and that the failure of a beneficial owner to provide his, her or its brokers, banks or other nominees with instruction regarding how to vote on the Reverse Stock Split Amendment would have the same effect as casting a vote “against” the Reverse Stock Split Amendment; and | |
| (iii) | if the Broker Votes were counted as votes “against” the Reverse Stock Split Proposal, the Reverse Stock Split Amendment would not have been approved by the holders of a majority of the outstanding shares of the Common Stock, as required by Section 242 of the DGCL. |
RESOLVED FURTHER, that the Board of Directors hereby approves, adopts and authorizes, in all respects, the ratification of the potentially defective corporate acts identified above, those being the filing and effectiveness of the Reverse Stock Split Amendment and the 2020 Reverse Stock Split (collectively, the “Potentially Defective Corporate Acts”), pursuant to Section 204 of the DGCL.
Submission to Stockholders for Ratification
RESOLVED FURTHER, that the Board of Directors hereby directs that the Potentially Defective Corporate Acts shall be submitted to the stockholders of the Company at a special meeting of the stockholders (the “Special Meeting”) to ratify such acts under Section 204 of the DGCL and under common law, and the Board of Directors hereby recommends that the stockholders ratify the Potentially Defective Corporate Acts; and
RESOLVED FURTHER, that the record date for determining the stockholders entitled to notice of and to vote at the Special Meeting shall be the close of business on April 8, 2021 (unless the Special Meeting Committee of the Board of Directors subsequently fixes a different record date for such purposes); and
| A-ii |
RESOLVED FURTHER, that in connection with submitting the Potentially Defective Corporate Acts to the stockholders of the Company for ratification, the Board of Directors hereby authorizes and directs each officer of the Company (acting alone) to provide notice to the Company’s stockholders (and all other persons entitled thereto) in accordance with Section 204(d) of the DGCL and, in connection therewith, each such officer is authorized to (among other things) include (i) proposals relating to such ratification by the stockholders in the Company’s Notice of Meeting for the Special Meeting, and in any proxy statement, proxy card, other proxy materials or voting instruction forms related thereto, and (ii) include in such Notice of Meeting (and related proxy materials) any other matter that is required by Section 204 of the DGCL.
Abandonment
RESOLVED FURTHER, that at any time before the “validation effective time,” as such term in used in Section 204 of the DGCL, in respect of the Potentially Defective Corporate Acts, notwithstanding approval of the ratification of such Potentially Defective Corporate Acts by stockholders of the Company, the Board of Directors may abandon the ratification of such Potentially Defective Corporate Acts without further action of the stockholders of the Company.
Authorization to Prepare and File Certificates of Validation
RESOLVED FURTHER, that, following the ratification by the stockholders of the Company of the Potentially Defective Corporate Acts, each officer of the Company (acting alone) is hereby authorized to execute one or more certificates of validation in respect of such Potentially Defective Corporate Acts and to cause such certificate(s) of validation to be filed with the Secretary of State, with such certificate(s) of validation to be in such form and filed at such time as any such officer may deem advisable (the advisability of which shall be conclusively evidenced by the execution and filing of such certificate(s) of validation).
Common Law Ratification
RESOLVED FURTHER, that in addition to the ratification permitted by Section 204 of the DGCL, the Board of Directors hereby approves, adopts, confirms and ratifies the Potentially Defective Corporate Acts for all purposes of, and to the fullest extent permitted by, the common law of Delaware or any other applicable law.
General Enabling Resolution
RESOLVED FURTHER, that the officers of the Company are hereby authorized, empowered and directed in the name and on behalf of the Company, to do and cause to be done all such acts and things and to execute, deliver and perform obligations under all instruments, certificates, agreements and documents, and take whatever action is deemed necessary or advisable to comply with all applicable state and federal laws and to take such other action deemed necessary to carry out the intent of the above-listed resolutions.
| A-iii |
APPENDIX B
§ 204 Ratification of defective corporate acts and stock
(a) Subject to subsection (f) of this section, no defective corporate act or putative stock shall be void or voidable solely as a result of a failure of authorization if ratified as provided in this section or validated by the Court of Chancery in a proceeding brought under § 205 of this title.
(b) (1) In order to ratify 1 or more defective corporate acts pursuant to this section (other than the ratification of an election of the initial board of directors pursuant to paragraph (b)(2) of this section), the board of directors of the corporation shall adopt resolutions stating:
(A) The defective corporate act or acts to be ratified;
(B) The date of each defective corporate act or acts;
(C) If such defective corporate act or acts involved the issuance of shares of putative stock, the number and type of shares of putative stock issued and the date or dates upon which such putative shares were purported to have been issued;
(D) The nature of the failure of authorization in respect of each defective corporate act to be ratified; and
(E) That the board of directors approves the ratification of the defective corporate act or acts.
Such resolutions may also provide that, at any time before the validation effective time in respect of any defective corporate act set forth therein, notwithstanding the approval of the ratification of such defective corporate act by stockholders, the board of directors may abandon the ratification of such defective corporate act without further action of the stockholders. The quorum and voting requirements applicable to the ratification by the board of directors of any defective corporate act shall be the quorum and voting requirements applicable to the type of defective corporate act proposed to be ratified at the time the board adopts the resolutions ratifying the defective corporate act; provided that if the certificate of incorporation or bylaws of the corporation, any plan or agreement to which the corporation was a party or any provision of this title, in each case as in effect as of the time of the defective corporate act, would have required a larger number or portion of directors or of specified directors for a quorum to be present or to approve the defective corporate act, such larger number or portion of such directors or such specified directors shall be required for a quorum to be present or to adopt the resolutions to ratify the defective corporate act, as applicable, except that the presence or approval of any director elected, appointed or nominated by holders of any class or series of which no shares are then outstanding, or by any person that is no longer a stockholder, shall not be required.
(2) In order to ratify a defective corporate act in respect of the election of the initial board of directors of the corporation pursuant to § 108 of this title, a majority of the persons who, at the time the resolutions required by this paragraph (b)(2) of this section are adopted, are exercising the powers of directors under claim and color of an election or appointment as such may adopt resolutions stating:
(A) The name of the person or persons who first took action in the name of the corporation as the initial board of directors of the corporation;
(B) The earlier of the date on which such persons first took such action or were purported to have been elected as the initial board of directors; and
(C) That the ratification of the election of such person or persons as the initial board of directors is approved.
(c) Each defective corporate act ratified pursuant to paragraph (b)(1) of this section shall be submitted to stockholders for approval as provided in subsection (d) of this section, unless:
(1) (A) No other provision of this title, and no provision of the certificate of incorporation or bylaws of the corporation, or of any plan or agreement to which the corporation is a party, would have required stockholder approval of such defective corporate act to be ratified, either at the time of such defective corporate act or at the time the board of directors adopts the resolutions ratifying such defective corporate act pursuant to paragraph (b)(1) of this section; and
| B-i |
(B) Such defective corporate act did not result from a failure to comply with § 203 of this title; or
(2) As of the record date for determining the stockholders entitled to vote on the ratification of such defective corporate act, there are no shares of valid stock outstanding and entitled to vote thereon, regardless of whether there then exist any shares of putative stock.
(d) If the ratification of a defective corporate act is required to be submitted to stockholders for approval pursuant to subsection (c) of this section, due notice of the time, place, if any, and purpose of the meeting shall be given at least 20 days before the date of the meeting to each holder of valid stock and putative stock, whether voting or nonvoting, at the address of such holder as it appears or most recently appeared, as appropriate, on the records of the corporation. The notice shall also be given to the holders of record of valid stock and putative stock, whether voting or nonvoting, as of the time of the defective corporate act (or, in the case of any defective corporate act that involved the establishment of a record date for notice of or voting at any meeting of stockholders, for action by written consent of stockholders in lieu of a meeting, or for any other purpose, the record date for notice of or voting at such meeting, the record date for action by written consent, or the record date for such other action, as the case may be), other than holders whose identities or addresses cannot be determined from the records of the corporation. The notice shall contain a copy of the resolutions adopted by the board of directors pursuant to paragraph (b)(1) of this section or the information required by paragraphs (b)(1)(A) through (E) of this section and a statement that any claim that the defective corporate act or putative stock ratified hereunder is void or voidable due to the failure of authorization, or that the Court of Chancery should declare in its discretion that a ratification in accordance with this section not be effective or be effective only on certain conditions must be brought within 120 days from the applicable validation effective time. At such meeting, the quorum and voting requirements applicable to ratification of such defective corporate act shall be the quorum and voting requirements applicable to the type of defective corporate act proposed to be ratified at the time of the approval of the ratification, except that:
(1) If the certificate of incorporation or bylaws of the corporation, any plan or agreement to which the corporation was a party or any provision of this title in effect as of the time of the defective corporate act would have required a larger number or portion of stock or of any class or series thereof or of specified stockholders for a quorum to be present or to approve the defective corporate act, the presence or approval of such larger number or portion of stock or of such class or series thereof or of such specified stockholders shall be required for a quorum to be present or to approve the ratification of the defective corporate act, as applicable, except that the presence or approval of shares of any class or series of which no shares are then outstanding, or of any person that is no longer a stockholder, shall not be required;
(2) The approval by stockholders of the ratification of the election of a director shall require the affirmative vote of the majority of shares present at the meeting and entitled to vote on the election of such director, except that if the certificate of incorporation or bylaws of the corporation then in effect or in effect at the time of the defective election require or required a larger number or portion of stock or of any class or series thereof or of specified stockholders to elect such director, the affirmative vote of such larger number or portion of stock or of any class or series thereof or of such specified stockholders shall be required to ratify the election of such director, except that the presence or approval of shares of any class or series of which no shares are then outstanding, or of any person that is no longer a stockholder, shall not be required; and
(3) In the event of a failure of authorization resulting from failure to comply with the provisions of § 203 of this title, the ratification of the defective corporate act shall require the vote set forth in § 203(a)(3) of this title, regardless of whether such vote would have otherwise been required.
Shares of putative stock on the record date for determining stockholders entitled to vote on any matter submitted to stockholders pursuant to subsection (c) of this section (and without giving effect to any ratification that becomes effective after such record date) shall neither be entitled to vote nor counted for quorum purposes in any vote to ratify any defective corporate act.
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(e) If a defective corporate act ratified pursuant to this section would have required under any other section of this title the filing of a certificate in accordance with § 103 of this title, then, whether or not a certificate was previously filed in respect of such defective corporate act and in lieu of filing the certificate otherwise required by this title, the corporation shall file a certificate of validation with respect to such defective corporate act in accordance with § 103 of this title. A separate certificate of validation shall be required for each defective corporate act requiring the filing of a certificate of validation under this section, except that (i) 2 or more defective corporate acts may be included in a single certificate of validation if the corporation filed, or to comply with this title would have filed, a single certificate under another provision of this title to effect such acts, and (ii) 2 or more overissues of shares of any class, classes or series of stock may be included in a single certificate of validation, provided that the increase in the number of authorized shares of each such class or series set forth in the certificate of validation shall be effective as of the date of the first such overissue. The certificate of validation shall set forth:
(1) Each defective corporate act that is the subject of the certificate of validation (including, in the case of any defective corporate act involving the issuance of shares of putative stock, the number and type of shares of putative stock issued and the date or dates upon which such putative shares were purported to have been issued), the date of such defective corporate act, and the nature of the failure of authorization in respect of such defective corporate act;
(2) A statement that such defective corporate act was ratified in accordance with this section, including the date on which the board of directors ratified such defective corporate act and the date, if any, on which the stockholders approved the ratification of such defective corporate act; and
(3) Information required by 1 of the following paragraphs:
a. If a certificate was previously filed under § 103 of this title in respect of such defective corporate act and no changes to such certificate are required to give effect to such defective corporate act in accordance with this section, the certificate of validation shall set forth (x) the name, title and filing date of the certificate previously filed and of any certificate of correction thereto and (y) a statement that a copy of the certificate previously filed, together with any certificate of correction thereto, is attached as an exhibit to the certificate of validation;
b. If a certificate was previously filed under § 103 of this title in respect of the defective corporate act and such certificate requires any change to give effect to the defective corporate act in accordance with this section (including a change to the date and time of the effectiveness of such certificate), the certificate of validation shall set forth (x) the name, title and filing date of the certificate so previously filed and of any certificate of correction thereto, (y) a statement that a certificate containing all of the information required to be included under the applicable section or sections of this title to give effect to the defective corporate act is attached as an exhibit to the certificate of validation, and (z) the date and time that such certificate shall be deemed to have become effective pursuant to this section; or
c. If a certificate was not previously filed under § 103 of this title in respect of the defective corporate act and the defective corporate act ratified pursuant to this section would have required under any other section of this title the filing of a certificate in accordance with § 103 of this title, the certificate of validation shall set forth (x) a statement that a certificate containing all of the information required to be included under the applicable section or sections of this title to give effect to the defective corporate act is attached as an exhibit to the certificate of validation, and (y) the date and time that such certificate shall be deemed to have become effective pursuant to this section.
A certificate attached to a certificate of validation pursuant to paragraph (e)(3)b. or c. of this section need not be separately executed and acknowledged and need not include any statement required by any other section of this title that such instrument has been approved and adopted in accordance with the provisions of such other section.
(f) From and after the validation effective time, unless otherwise determined in an action brought pursuant to § 205 of this title:
(1) Subject to the last sentence of subsection (d) of this section, each defective corporate act ratified in accordance with this section shall no longer be deemed void or voidable as a result of the failure of authorization described in the resolutions adopted pursuant to subsection (b) of this section and such effect shall be retroactive to the time of the defective corporate act; and
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(2) Subject to the last sentence of subsection (d) of this section, each share or fraction of a share of putative stock issued or purportedly issued pursuant to any such defective corporate act shall no longer be deemed void or voidable and shall be deemed to be an identical share or fraction of a share of outstanding stock as of the time it was purportedly issued.
(g) In respect of each defective corporate act ratified by the board of directors pursuant to subsection (b) of this section, prompt notice of the ratification shall be given to all holders of valid stock and putative stock, whether voting or nonvoting, as of the date the board of directors adopts the resolutions approving such defective corporate act, or as of a date within 60 days after such date of adoption, as established by the board of directors, at the address of such holder as it appears or most recently appeared, as appropriate, on the records of the corporation. The notice shall also be given to the holders of record of valid stock and putative stock, whether voting or nonvoting, as of the time of the defective corporate act, other than holders whose identities or addresses cannot be determined from the records of the corporation. The notice shall contain a copy of the resolutions adopted pursuant to subsection (b) of this section or the information specified in paragraphs (b)(1)(A) through (E) or paragraphs (b)(2)(A) through (C) of this section, as applicable, and a statement that any claim that the defective corporate act or putative stock ratified hereunder is void or voidable due to the failure of authorization, or that the Court of Chancery should declare in its discretion that a ratification in accordance with this section not be effective or be effective only on certain conditions must be brought within 120 days from the later of the validation effective time or the time at which the notice required by this subsection is given. Notwithstanding the foregoing, (i) no such notice shall be required if notice of the ratification of the defective corporate act is to be given in accordance with subsection (d) of this section, and (ii) in the case of a corporation that has a class of stock listed on a national securities exchange, the notice required by this subsection and the second sentence of subsection (d) of this section may be deemed given if disclosed in a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to § 13, § 14 or § 15(d) (15 U.S.C. § 78m, § 77n or § 78o(d)) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, or the corresponding provisions of any subsequent United States federal securities laws, rules or regulations. If any defective corporate act has been approved by stockholders acting pursuant to § 228 of this title, the notice required by this subsection may be included in any notice required to be given pursuant to § 228(e) of this title and, if so given, shall be sent to the stockholders entitled thereto under § 228(e) and to all holders of valid and putative stock to whom notice would be required under this subsection if the defective corporate act had been approved at a meeting other than any stockholder who approved the action by consent in lieu of a meeting pursuant to § 228 of this title or any holder of putative stock who otherwise consented thereto in writing. Solely for purposes of subsection (d) of this section and this subsection, notice to holders of putative stock, and notice to holders of valid stock and putative stock as of the time of the defective corporate act, shall be treated as notice to holders of valid stock for purposes of §§ 222 and 228, 229, 230, 232 and 233 of this title.
(h) As used in this section and in § 205 of this title only, the term:
(1) “Defective corporate act” means an overissue, an election or appointment of directors that is void or voidable due to a failure of authorization, or any act or transaction purportedly taken by or on behalf of the corporation that is, and at the time such act or transaction was purportedly taken would have been, within the power of a corporation under subchapter II of this chapter (without regard to the failure of authorization identified in § 204(b)(1)(D) of this title), but is void or voidable due to a failure of authorization;
(2) “Failure of authorization” means: (i) the failure to authorize or effect an act or transaction in compliance with (A) the provisions of this title, (B) the certificate of incorporation or bylaws of the corporation, or (C) any plan or agreement to which the corporation is a party or the disclosure set forth in any proxy or consent solicitation statement, if and to the extent such failure would render such act or transaction void or voidable; or (ii) the failure of the board of directors or any officer of the corporation to authorize or approve any act or transaction taken by or on behalf of the corporation that would have required for its due authorization the approval of the board of directors or such officer;
(3) “Overissue” means the purported issuance of:
a. Shares of capital stock of a class or series in excess of the number of shares of such class or series the corporation has the power to issue under § 161 of this title at the time of such issuance; or
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b. Shares of any class or series of capital stock that is not then authorized for issuance by the certificate of incorporation of the corporation;
(4) “Putative stock” means the shares of any class or series of capital stock of the corporation (including shares issued upon exercise of options, rights, warrants or other securities convertible into shares of capital stock of the corporation, or interests with respect thereto that were created or issued pursuant to a defective corporate act) that:
a. But for any failure of authorization, would constitute valid stock; or
b. Cannot be determined by the board of directors to be valid stock;
(5) “Time of the defective corporate act” means the date and time the defective corporate act was purported to have been taken;
(6) “Validation effective time” with respect to any defective corporate act ratified pursuant to this section means the latest of:
a. The time at which the defective corporate act submitted to the stockholders for approval pursuant to subsection (c) of this section is approved by such stockholders or if no such vote of stockholders is required to approve the ratification of the defective corporate act, the time at which the board of directors adopts the resolutions required by paragraph (b)(1) or (b)(2) of this section;
b. Where no certificate of validation is required to be filed pursuant to subsection (e) of this section, the time, if any, specified by the board of directors in the resolutions adopted pursuant to paragraph (b)(1) or (b)(2) of this section, which time shall not precede the time at which such resolutions are adopted; and
c. The time at which any certificate of validation filed pursuant to subsection (e) of this section shall become effective in accordance with § 103 of this title.
(7) “Valid stock” means the shares of any class or series of capital stock of the corporation that have been duly authorized and validly issued in accordance with this title.
In the absence of actual fraud in the transaction, the judgment of the board of directors that shares of stock are valid stock or putative stock shall be conclusive, unless otherwise determined by the Court of Chancery in a proceeding brought pursuant to § 205 of this title.
(i) Ratification under this section or validation under § 205 of this title shall not be deemed to be the exclusive means of ratifying or validating any act or transaction taken by or on behalf of the corporation, including any defective corporate act, or any issuance of stock, including any putative stock, or of adopting or endorsing any act or transaction taken by or in the name of the corporation prior to the commencement of its existence, and the absence or failure of ratification in accordance with either this section or validation under § 205 of this title shall not, of itself, affect the validity or effectiveness of any act or transaction or the issuance of any stock properly ratified under common law or otherwise, nor shall it create a presumption that any such act or transaction is or was a defective corporate act or that such stock is void or voidable.
§ 205 Proceedings regarding validity of defective corporate acts and stock
(a) Subject to subsection (f) of this section, upon application by the corporation, any successor entity to the corporation, any member of the board of directors, any record or beneficial holder of valid stock or putative stock, any record or beneficial holder of valid or putative stock as of the time of a defective corporate act ratified pursuant to § 204 of this title, or any other person claiming to be substantially and adversely affected by a ratification pursuant to § 204 of this title, the Court of Chancery may:
(1) Determine the validity and effectiveness of any defective corporate act ratified pursuant to § 204 of this title;
(2) Determine the validity and effectiveness of the ratification of any defective corporate act pursuant to § 204 of this title;
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(3) Determine the validity and effectiveness of any defective corporate act not ratified or not ratified effectively pursuant to § 204 of this title;
(4) Determine the validity of any corporate act or transaction and any stock, rights or options to acquire stock; and
(5) Modify or waive any of the procedures set forth in § 204 of this title to ratify a defective corporate act.
(b) In connection with an action under this section, the Court of Chancery may:
(1) Declare that a ratification in accordance with and pursuant to § 204 of this title is not effective or shall only be effective at a time or upon conditions established by the Court;
(2) Validate and declare effective any defective corporate act or putative stock and impose conditions upon such validation by the Court;
(3) Require measures to remedy or avoid harm to any person substantially and adversely affected by a ratification pursuant to § 204 of this title or from any order of the Court pursuant to this section, excluding any harm that would have resulted if the defective corporate act had been valid when approved or effectuated;
(4) Order the Secretary of State to accept an instrument for filing with an effective time specified by the Court, which effective time may be prior or subsequent to the time of such order, provided that the filing date of such instrument shall be determined in accordance with § 103(c)(3) of this title;
(5) Approve a stock ledger for the corporation that includes any stock ratified or validated in accordance with this section or with § 204 of this title;
(6) Declare that shares of putative stock are shares of valid stock or require a corporation to issue and deliver shares of valid stock in place of any shares of putative stock;
(7) Order that a meeting of holders of valid stock or putative stock be held and exercise the powers provided to the Court under § 227 of this title with respect to such a meeting;
(8) Declare that a defective corporate act validated by the Court shall be effective as of the time of the defective corporate act or at such other time as the Court shall determine;
(9) Declare that putative stock validated by the Court shall be deemed to be an identical share or fraction of a share of valid stock as of the time originally issued or purportedly issued or at such other time as the Court shall determine; and
(10) Make such other orders regarding such matters as it deems proper under the circumstances.
(c) Service of the application under subsection (a) of this section upon the registered agent of the corporation shall be deemed to be service upon the corporation, and no other party need be joined in order for the Court of Chancery to adjudicate the matter. In an action filed by the corporation, the Court may require notice of the action be provided to other persons specified by the Court and permit such other persons to intervene in the action.
(d) In connection with the resolution of matters pursuant to subsections (a) and (b) of this section, the Court of Chancery may consider the following:
(1) Whether the defective corporate act was originally approved or effectuated with the belief that the approval or effectuation was in compliance with the provisions of this title, the certificate of incorporation or bylaws of the corporation;
(2) Whether the corporation and board of directors has treated the defective corporate act as a valid act or transaction and whether any person has acted in reliance on the public record that such defective corporate act was valid;
(3) Whether any person will be or was harmed by the ratification or validation of the defective corporate act, excluding any harm that would have resulted if the defective corporate act had been valid when approved or effectuated;
(4) Whether any person will be harmed by the failure to ratify or validate the defective corporate act; and
(5) Any other factors or considerations the Court deems just and equitable.
(e) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions brought under this section.
(f) Notwithstanding any other provision of this section, no action asserting:
(1) That a defective corporate act or putative stock ratified in accordance with § 204 of this title is void or voidable due to a failure of authorization identified in the resolution adopted in accordance with 204(b) of this title; or
(2) That the Court of Chancery should declare in its discretion that a ratification in accordance with § 204 of this title not be effective or be effective only on certain conditions,
may be brought after the expiration of 120 days from the later of the validation effective time and the time notice, if any, that is required to be given pursuant to § 204(g) of this title is given with respect to such ratification, except that this subsection shall not apply to an action asserting that a ratification was not accomplished in accordance with § 204 of this title or to any person to whom notice of the ratification was required to have been given pursuant to § 204(d) or (g) of this title, but to whom such notice was not given.
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