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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 ☒
Filed by a Party other than the Registrant  ☐
Check the appropriate box:
☐☒
Preliminary Proxy Statement
 ☐
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☒
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Definitive Proxy Statement
 ☐
Definitive Additional Materials
 ☐
Soliciting Material under §240.14a-12
NeuroBo Pharmaceuticals, Inc.
(Name of Registrant as Specified In Its Charter)
N/A
 
N/A
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
☒
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No fee required
 ☐
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Fee paid previously with preliminary materials
 ☐
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

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November 28, 2022May   , 2023
Dear Stockholder:
You are cordially invited to attend a Specialthe 2023 annual meeting of stockholders (the “Annual Meeting of Stockholders (the “Special Meeting””) of NeuroBo Pharmaceuticals, Inc. (the “Company”) to be held on Thursday, December 22, 2022Wednesday, June 28, 2023 at 10:3:00 a.m.p.m. Eastern time.Time.
We invite you to attend the SpecialAnnual Meeting and request that you vote on the proposals described in this proxy statement. However, you do not need to attend the Special Meetingmeeting to vote your shares. Instead, you may vote by proxy, via the Internet, or by mail by following the instructions provided on the proxy card or voting instruction card, and we encourage you to vote before the SpecialAnnual Meeting.
The enclosed Notice of Special2023 Annual Meeting of Stockholders and the Proxy Statement contain details of the business to be conducted at the SpecialAnnual Meeting and information you should consider when you vote your shares.
At the SpecialAnnual Meeting, the agenda includes:
Proposal 1 –- to elect two Class I directors, each to serve three-year terms until the 2026 annual meeting of stockholders and until the election and qualification of his or her successor, or such director’s earlier death, resignation, or removal;
Proposal 2 - to ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023;
Proposal 3 - to approve pursuantan amendment to Nasdaq Listing Rules 5635(a), (b)our Certificate of Incorporation to effect a reverse split of our outstanding common stock at a ratio in the range of 1-for-5 to 1-for-8 to be determined at the discretion of our Board of Directors, whereby each outstanding 5 to 8 shares would be combined, converted and (d), the issuance of shareschanged into 1 share of our common stock, in respect ofto enable us to comply with the License Agreement, dated September 14, 2022, entered into by and between Dong-A ST Co. Ltd. (“Dong-A”) and the Company (the “License Agreement”), and pursuant to the Securities Purchase Agreement, dated September 14, 2022, entered into by and between Dong-A and the Company (the “Securities Purchase Agreement”), including upon the conversion of shares of the Company’s Series A Convertible PreferredNasdaq Stock issued to Dong-A pursuant to the terms and conditions of the License Agreement and the Securities Purchase Agreement, the exercise of warrants issued to Dong-A pursuant to the terms and conditions of the Securities Purchase Agreement and in respect of various commercial and regulatory milestone payments that may become payable in the future to Dong-A under the terms and conditions of the License Agreement that the Company may elect to pay to Dong-A in shares of the Company’s common stock;
Proposal 2 – to approve pursuant to Nasdaq Listing Rule 5635(d) and Nasdaq’s interpretations and guidance thereunder, the issuance of shares of our common stock upon the exercise of our Series A Warrants and Series B Warrants issued to investors in our underwritten offering that closed on November 8, 2022;
Proposal 3 – to approve the NeuroBo Pharmaceuticals, Inc. 2022 Equity Incentive Plan;Market’s continued listing requirements; and
Proposal 4 –- to authorize one or more adjournments of the SpecialAnnual Meeting to solicit additional proxies in the event there are insufficient votes to approve Proposals 1, 2 orProposal 3 described above.
The Board of Directors unanimously recommends that you vote FOR the election of each director nominee, and FOR each of the Proposals.Proposals 2, 3 and 4. Your vote is important.
We are not seeking stockholder approval or ratification of (i) the license from Dong-A under the License Agreement, (ii) the sale of securities under the Securities Purchase Agreement or (iii) the sale of the Series A Warrants and Series B Warrants to the investors in our underwritten offering because such license and sales of securities have been consummated and none of the issuance of the Series A Convertible Preferred Stock and warrants paid at the closing of the transactions with Dong-A, the issuance of the Series A Warrants and Series B Warrants to the investors in our underwritten offering or the performance of our future obligations under the License Agreement requires stockholder approval under the rules of the Nasdaq Capital Market, Delaware law, or our Third Amended and Restated Certificate of Incorporation, as amended.
To protect the health and well-being of our stockholders and employees, the SpecialAnnual Meeting will be a completely virtual meeting conducted via live webcast. You will be able to attend the SpecialAnnual Meeting online, vote electronically and submit your questions during the SpecialAnnual Meeting by visiting www.virtualshareholdermeeting.com/NRBO2022SMNRBO2023 and entering your 16-digit control number. You will not be able to attend the SpecialAnnual Meeting in person.

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Even if you are planning on attending the SpecialAnnual Meeting online, please promptly submit your proxy vote via the Internet or by completing, dating, signing and returning the enclosed proxy card or voting instruction card, so your shares will be represented at the SpecialAnnual Meeting. Instructions on voting your shares are on the proxy materials you received for the SpecialAnnual Meeting.
Sincerely,
Andrew Koven
Chair of the Board of Directors
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Sincerely,
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/s/ Gil Price, M.D.
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Gil Price, M.D.
President and Chief Executive Officer

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NeuroBo Pharmaceuticals, Inc.
200 Berkeley Street, 19th Floor
Boston, Massachusetts 02116
NOTICE OF SPECIAL2023 ANNUAL MEETING OF STOCKHOLDERS
To Be Held December 22, 2022
June 28, 2023
To Our Stockholders:
NOTICE IS HEREBY GIVEN that a Special Meetingthe 2023 annual meeting of Stockholders (the “Special Meeting”)stockholders of NeuroBo Pharmaceuticals, Inc. will be held as a virtual meeting at www.virtualshareholdermeeting.com/NRBO2022SM,NRBO2023 on Thursday December 22, 2022June 28, 2023 at 10:3:00 a.m.p.m. Eastern time.Time.
We are holding the Special Meetingmeeting to consider and vote upon the following proposals, which are more fully described in the accompanying proxy statement:
Proposal 1 –- to elect two Class I directors, each to serve three-year terms until the 2026 annual meeting of stockholders and until the election and qualification of his or her successor, or such director’s earlier death, resignation, or removal;
Proposal 2 - to ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023;
Proposal 3 - to approve pursuantan amendment to Nasdaq Listing Rules 5635(a), (b)our Certificate of Incorporation to effect a reverse split of our outstanding common stock at a ratio in the range of 1-for-5 to 1-for-8 to be determined at the discretion of our Board of Directors, whereby each outstanding 5 to 8 shares would be combined, converted and (d), the issuance of shareschanged into 1 share of our common stock, in respect ofto enable us to comply with the License Agreement, dated September 14, 2022, entered into by and between Dong-A ST Co. Ltd. (“Dong-A”) and the Company (the “License Agreement”), and pursuant to the Securities Purchase Agreement, dated September 14, 2022, entered into by and between Dong-A and the Company (the “Securities Purchase Agreement”), including upon the conversion of shares of the Company’s Series A Convertible PreferredNasdaq Stock issued to Dong-A pursuant to the terms and conditions of the License Agreement and the Securities Purchase Agreement, the exercise of warrants issued to Dong-A pursuant to the terms and conditions of the Securities Purchase Agreement and in respect of various commercial and regulatory milestone payments that may become payable in the future to Dong-A under the terms and conditions of the License Agreement that the Company may elect to pay to Dong-A in shares of the Company’s common stock;
Proposal 2 – to approve pursuant to Nasdaq Listing Rule 5635(d) and Nasdaq’s interpretations and guidance thereunder, the issuance of shares of our common stock upon the exercise of our Series A Warrants and Series B Warrants issued to investors in our underwritten offering that closed on November 8, 2022;
Proposal 3 – to approve the NeuroBo Pharmaceuticals, Inc. 2022 Equity Incentive Plan;Market’s continued listing requirements; and
Proposal 4 –- to authorize one or more adjournments of the SpecialAnnual Meeting to solicit additional proxies in the event there are insufficient votes to approve Proposals 1, 2 orProposal 3 described above.
In addition, stockholders may be asked to consider and vote upon such other business as may properly come before the meeting or any adjournment or postponement thereof.
The Board of Directors unanimously recommends that you vote FOR the election of each director nominee, and FOReach of the Proposals. Proposals 2, 3 and 4.
Only stockholders of record at the close of business on November 3, 2022May 15, 2023 are entitled to notice of, and to vote at, the Special Meetingmeeting and any adjournments thereof. For ten days prior to the Special Meeting,meeting, a complete list of the stockholders entitled to vote at the Special Meetingmeeting will be available for examination by any stockholder for any purpose relating to the Special Meetingmeeting during ordinary business hours at our headquarters.
Your vote as a NeuroBo Pharmaceuticals, Inc. stockholder is very important. Each share of stock that you own represents one vote.
For questions regarding your stock ownership, you may contact Adam Perlish at (857)-702-9600 or via email at info@neurobopharma.com or, if you are a registered holder, our transfer agent, American Stock Transfer & Trust Company, LLC, by telephoneemail at 800-937-5449.help@astfinancial.com or by phone at (800) 937-5449.
Whether or not you expect to virtually attend the Special Meeting,meeting, we encourage you to read the proxy statement and vote through the Internet, or request, sign and return your proxy card or voting instruction card as soon as possible, so that your shares may be represented at the Special Meeting.meeting. For specific instructions on how to vote your shares, please refer to the section entitled “Voting“Attending the Annual Meeting; Voting Instructions; Voting of Proxies” in the proxy statement.
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By Order of the Board of Directors
Andrew Koven
Chair of the Board of Directors
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/s/ Gil Price, M.D.
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Gil Price, M.D.
President and Chief Executive Officer
Boston, Massachusetts
November 28, 2022May   , 2023

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NEUROBO PHARMACEUTICALS, INC.

PROXY STATEMENT FOR SPECIAL2023 ANNUAL MEETING OF STOCKHOLDERS

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GENERAL INFORMATION ABOUT THE MEETING
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1
GENERAL PROXY INFORMATION
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2
CAUTIONARY INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
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4
PROPOSALSCORPORATE GOVERNANCE STANDARDS AND DIRECTOR INDEPENDENCE
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PROPOSAL 1 – APPROVALELECTION OF THE ISSUANCE OF SHARES OF OUR COMMON STOCK UPON CONVERSION OF OUR SERIES A CONVERTIBLE PREFERRED STOCK AND EXERCISE OF WARRANTS ISSUED IN CONNECTION WITH OUR LICENSE OF CERTAIN ASSETS FROM DONG-A ST CO. LTD. AND ISSUANCE OF SHARES IN RESPECT OF REGULATORY AND COMMERCIAL MILESTONES PURSUANT TO NASDAQ LISTING RULES 5635(A), 5635(B) AND 5635(D).CLASS I DIRECTORS
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PROPOSAL 2 – APPROVAL OF THE ISSUANCE OF SHARES OF OUR COMMON STOCK UPON EXERCISE OF WARRANTS ISSUED TO INVESTORS IN OUR UNDERWRITTEN OFFERING PURSUANT TO NASDAQ LISTING RULE 5635(D) AND NASDAQ’S INTERPRETATION AND GUIDANCE THEREUNDER.
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PROPOSAL 3 – APPROVAL OF THE NEUROBO PHARMACEUTICALS, INC. 2022 EQUITY INCENTIVE PLAN
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PROPOSAL 4 – ADJOURNMENT OF SPECIAL MEETING
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
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EXECUTIVE OFFICERS
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EXECUTIVE COMPENSATION
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STOCKHOLDER PROPOSALSCERTAIN RELATIONSHIPS AND RELATED-PARTY TRANSACTIONS
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HOUSEHOLDINGPROPOSAL 2 RATIFICATION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
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PROPOSAL 3 APPROVAL OF A PROPOSED AMENDMENT TO OUR CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE SPLIT OF OUR OUTSTANDING COMMON STOCK
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PROPOSAL 4 ADJOURNMENT OF ANNUAL MEETING
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ADDITIONAL INFORMATION
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OTHER MATTERS
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INCORPORATION BY REFERENCE; WHERE YOU CAN FIND ADDITIONAL INFORMATIONAPPENDIX A
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NeuroBo Pharmaceuticals, Inc.
200 Berkeley Street, 19th Floor
Boston, Massachusetts 02116
PROXY STATEMENT FOR THE SPECIAL2023 ANNUAL MEETING OF STOCKHOLDERS
GENERAL INFORMATION ABOUT THE MEETING
Our Board of Directors (the ““Board”Board”) solicits your proxy on our behalf for the Special2023 annual meeting of stockholders (the “Annual Meeting of Stockholders (the “Special Meeting””) and at any postponement or adjournment of the SpecialAnnual Meeting for the purposes set forth in this Proxy Statement and the accompanying Notice of Special2023 Annual Meeting of Stockholders (the ““Notice”Notice”). The SpecialAnnual Meeting will be held on June 28, 2023 at 3:00 p.m. Eastern Time, as a virtual meeting at www.virtualshareholdermeeting.com/NRBO2022SM, on Thursday, December 22, 2022 at 10:00 a.m. Eastern time. Whenever we refer in this Proxy Statement to the “Special Meeting,” we are also referring to any meeting that results from any postponement or adjournment of the December 22, 2022 meeting.NRBO2023.
This Proxy Statement is first being sent to stockholders on or about November 28, 2022.May    , 2023.
References in this Proxy Statement to “we,“we,” “us,” “the Company” and “our”“our” refer to NeuroBo Pharmaceuticals, Inc.
We encourage you to vote your shares, either by attending the virtual Special Meeting or by granting a proxy (i.e., authorizing someone to vote your shares). If you vote via the Internet or telephone or execute the attached paper proxy card, the individuals designated will vote your shares according to your instructions.
Purpose of the Meeting
At the meeting, stockholders will act upon the proposals described in this proxy statement. In addition, we will consider any other matters that are properly presented for a vote at the meeting. We are holdingnot aware of any other matters to be submitted for consideration at the Special Meetingmeeting. If any other matters are properly presented for a vote at the meeting, the persons named in order to (a) seek stockholder approval, in accordance with applicable Nasdaq rules,the proxy, who are officers of the issuance ofCompany, have the authority in their discretion to vote the shares of our common stock in respect ofrepresented by the License Agreement, dated September 14, 2022, entered into by and between Dong-A ST Co. Ltd. (“Dong-A”) and the Company (the “License Agreement”), and pursuant to the Securities Purchase Agreement, dated September 14, 2022, entered into by and between Dong-A and the Company (the “Securities Purchase Agreement”), including upon the conversion of shares of our Series A Convertible Preferred Stock issued to Dong-A pursuant to the terms and conditions of the License Agreement and the Securities Purchase Agreement, the exercise of warrants issued to Dong-A pursuant to the terms and conditions of the Securities Purchase Agreement and in respect of various commercial and regulatory milestone payments that may become payable in the future to Dong-A under the terms and conditions of the License Agreement that the Company may elect to pay to Dong-A in shares of the Company’s common stock, (b) to approve pursuant to Nasdaq Listing Rule 5635(d) and Nasdaq’s interpretations and guidance thereunder, the issuance of shares of our common stock upon the exercise of our Series A Warrants and Series B Warrants issued to investors in our underwritten offering that closed on November 8, 2022 and (c) seek stockholder approval for NeuroBo Pharmaceuticals, Inc. 2022 Equity Incentive Plan.proxy.
Record Date; Quorum
Only holders of record of the Company’s common stock (“Common Stock”) at the close of business on November 3, 2022May 15, 2023 (the ““Record Date”Date”) will be entitled to vote at the SpecialAnnual Meeting. At the close of business on the Record Date,    888,693 shares of common stockCommon Stock were outstanding and entitled to vote.
The holders of a one-third of the voting power of the outstanding shares of stockCommon Stock entitled to vote at the Special Meetingmeeting as of the Record Date must be present in person, by remote communication if applicable, or by proxy duly authorized at the Special Meetingmeeting in order to hold the Special Meetingmeeting and conduct business. This presence is called a quorum. Your shares are counted as present at the Special Meetingmeeting if you are present and vote in person at the Special Meetingmeeting or if you have properly submitted a proxy. See “General Proxy Information – Voting Rights; Required Vote” below for additional information.
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GENERAL PROXY INFORMATION
Voting Rights; Required Vote
Each holder of shares of common stockCommon Stock is entitled to one vote for each share of common stockCommon Stock held as of the close of business on the Record Date. You may vote all shares owned by you at such date, including (1) shares held directly in your name as the stockholder of record and (2) shares held for you as the beneficial owner in street name through a broker, bank, trustee or other nominee. Appraisal rights are not applicable to any of the matters being voted on.
Stockholder of Record: Shares Registered in Your Name. If, on the Record Date, your shares of Common Stock were registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, then you are considered the stockholder of record with respect to those shares. As a stockholder of record, you may vote at the Special Meeting,meeting, or vote in advance through the Internet or by mail.
Beneficial Owner: Shares Registered in the Name of a Broker or Nominee. If, on the Record Date, your shares of Common Stock were held in an account with a brokerage firm, bank or other nominee, then you are the beneficial owner of the shares of Common Stock held in street name. As a beneficial owner, you have the right to direct your broker on how to vote the shares of Common Stock held in your account, and your broker has enclosed or provided voting instructions for you to use in directing it on how to vote your shares.shares of Common Stock. Because the brokerage firm, bank or other nominee that holds your shares is the stockholder of record, if you wish to attend the Special Meetingvirtual meeting and vote your shares you must obtain a valid proxy from the firm that holds your shares of Common Stock giving you the right to vote the shares of Common Stock at the Special Meeting.meeting. Please refer to the section entitled “Voting“Attending the Annual Meeting; Voting Instructions; Voting of Proxies” below.
Votes Required to Adopt Proposals. Approval of eachEach director will be elected by a plurality of the proposals will be obtained if holders of a majorityvotes of shares of Common Stock present in person by remote communication, if applicable, or represented by proxy at the Specialmeeting and entitled to vote on the election of directors. This means that the two individuals nominated for election to the Board at the Annual Meeting receiving the highest number of “FOR” votes will be elected. You may either vote “FOR” all or any of the nominees or “WITHHOLD” your vote with respect to all or any of the nominees. You may not cumulate votes in the election of directors. Approval of Proposals 2 and 4 will be obtained if the holders of a majority of the shares of Common Stock present in person or represented by proxy at the Annual Meeting and entitled to vote at the SpecialAnnual Meeting vote “FOR” suchthe proposal. Approval of Proposal 3 will be obtained if the holders of a majority of the outstanding shares of Common Stock entitled to vote at the Annual Meeting vote “FOR” the proposal.
Broker Non-Votes and Abstentions. Because all ofA proxy submitted by a stockholder may indicate that the proposalsshares represented by the proxy are not being voted (stockholder withholding) with respect to a particular matter. In addition, a broker may not be voted on at the Special Meeting are “non-routine” matters, banks, brokers and other nominees will not have authoritypermitted to vote on any proposals unless instructed, so we do not expect there to be any broker non-votes atshares held in street name on a particular matter in the Special Meeting. For each proposal, abstentions will haveabsence of instructions from the same effect as a vote “against” such proposal.beneficial owner of the stock (broker non-vote).
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How Votes Impact Approval of Proposal
Proposal
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Required
Approval
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For
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Withhold /
Against
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Abstention
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Broker Non-
Votes2
1
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Election of Directors
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Plurality of votes cast
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For the proposal
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Against the proposal
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Not applicable1
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No effect. Not a vote cast
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2
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Ratification of the Appointment of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023
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Majority of the voting power present in person or represented by proxy and entitled to vote
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For the proposal
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Against the proposal
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Against the proposal
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Not applicable- the organization that holds shares of beneficial owners may vote in their discretion
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3
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Approval of an amendment to our Certificate of Incorporation to effect a reverse split of our
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Majority of the voting power entitled to vote
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For the proposal
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Against the proposal
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Against the proposal
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Against the proposal
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How Votes Impact Approval of Proposal
Proposal
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Required
Approval
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For
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Withhold /
Against
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Abstention
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Broker Non-
Votes2
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outstanding common stock at a ratio in the range of 1-for-5 to 1-for-8 to be determined at the discretion of the Board
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4
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To authorize one or more adjournments of the Annual Meeting to solicit additional proxies in the event there are insufficient votes to approve Proposal 3 described above
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Majority of the voting power present in person or represented by proxy and entitled to vote
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For the proposal
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Against the proposal
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Against the proposal
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No effect. Not a vote cast
1
Abstain votes and proxies containing broker non-votes are counted for purposes of establishing a quorum, but are not counted in the election of directors and therefore have no effect on the election.
2
A broker non-vote occurs when a broker or other nominee submits a proxy card with respect to shares of Common Stock held in a fiduciary capacity (typically referred to as being held in “street name”), but declines to vote on a particular matter because the broker or nominee has not received voting instructions from the beneficial owner or the persons entitled to vote those shares and for which the broker or nominee does not have discretionary voting power under rules applicable to broker-dealers.
Recommendations of the Board on Each of the Proposals Scheduled to be Voted on at the SpecialAnnual Meeting
The Board of Directorsunanimously recommends that you vote FOR the election of each director nominee in Proposal 1 and FOReach of Proposals 2, 3 and 4.
Attending the Proposals.
Annual Meeting; Voting Instructions; Voting of Proxies
If you are a stockholder of record, you may:
Vote at the virtual SpecialAnnual Meeting —- to vote duringparticipate in the virtual SpecialAnnual Meeting, register and log intoyou will need the meeting per16-digit control number included on the instructions above. Youthat accompanied your proxy materials. Submitting a proxy will havenot prevent a stockholder from attending the opportunity to vote during the virtual Special Meeting.Annual Meeting, revoking their earlier submitted proxy, and voting in person.
Vote through the Internet —- you may vote through the Internet. To vote by Internet, you will need to use a control number provided to you in the materials with this proxy statement and follow the additional steps when prompted. The steps have been designed to authenticate your identity, allow you to give voting instructions, and confirm that those instructions have been recorded properly.
Vote by mail —- complete, sign and date the accompanying proxy card and return it as soon as possible before the SpecialAnnual Meeting in the envelope provided. If the postage-paid envelope is missing, please mail your completed proxy card to the attention of our Secretary, NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, 19th Floor, Boston, Massachusetts 02116.
If you are a beneficial owner of shares registered in the name of your broker, bank or other agent, you should have received a proxy card and voting instructions from that organization, rather than from the Company. Simply complete and mail the proxy card to ensure that your vote is counted. Alternatively, you may vote on the Internet as instructed by your broker or bank.
To vote online duringparticipate in the SpecialAnnual Meeting, you must obtainwill need the 16-digit control number included on the instructions that accompanied your proxy materials. If your shares of Common Stock are held in street name and you did not receive a valid proxy from16-digit control number, you may gain access to and vote at the Annual Meeting by logging into your broker, bank or other agentbrokerage firm’s website and register forselecting the virtual Specialstockholder communications mailbox to access the meeting. The control number will automatically populate. If you lose your 16-digit control number, you may join the Annual Meeting as described above. Followa “Guest,” but you will not be able to vote, ask questions or access the instructions from your broker or bank included with these proxy materials, or contact your broker or bank to request a proxy card.list of stockholders as of the Record Date.
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Votes submitted through the Internet must be received by 11:59 p.m., Eastern Time, on December 21, 2022.June 27, 2023. Submitting ayour proxy, whether through the Internet or by mail, will not prevent a stockholder from attending the SpecialAnnual Meeting, revoking their earlier-submitted proxy, and voting electronically at the virtual Special Meeting.in person. If you are not the stockholder of record, please refer to the voting instructions provided by your nominee to direct it on how to vote your shares. For allYou may either vote “FOR” both or any of the proposals,nominees to the Board, or you may withhold your vote from any nominee you specify. For Proposals 2, 3 and 4, you may vote “FOR” or “AGAINST” or “ABSTAIN” from voting. Your vote is important. Whether or not you plan to attend the SpecialAnnual Meeting, we urge you to vote by proxy to ensure that your vote is counted.
All proxies will be voted in accordance with the instructions specified on the proxy card. If you sign a physical proxy card and return it without instructions as to how your shares of Common Stock should be voted on a particular proposal at the SpecialAnnual Meeting, your shares of Common Stock will be voted in accordance with the recommendations of ourthe Board stated above.
If you do not vote and you hold your shares of Common Stock in street name, and your broker does not have discretionary power to vote your shares, your shares may constitute “broker non-votes” (as described above).
If you receive more than one proxy card, your shares of Common Stock are registered in more than one name or are registered in different accounts. To make certain all of your shares of Common Stock are voted, please complete, sign and return each proxy card to ensure that all of your shares are voted.
Your virtual attendance at the Annual Meeting will not cause your previously granted proxy to be revoked unless you electronically vote again or file the proper documentation for it to be so revoked.
Expenses of Soliciting Proxies
We will pay the expenses associated with soliciting proxies. Following the original distribution and mailing of the solicitation materials, we or our agents may solicit proxies by mail, electronic mail, telephone, facsimile, by other similar means, or in person. Our directors, officers and other employees, without additional compensation, may solicit proxies personally or in writing, by telephone, e-mail or otherwise. Following the original distribution and mailing of the solicitation materials, we will request brokers, custodians, nominees and other record holders to forward copies of those materials to persons for whom they hold shares and to request authority for the exercise of proxies. In such cases, we, upon the request of the record holders, will reimburse such holders for their reasonable expenses.
Revocability of Proxies
A stockholder of record who has given a proxy may revoke it at any time before the closing of the polls by the inspector of elections at the SpecialAnnual Meeting by:
delivering to our Secretary (by any means, including email)facsimile) a written notice stating that the proxy is revoked;
signing and delivering a proxy bearing a later date;
voting again through the Internet; or
attending and voting at the SpecialAnnual Meeting (although attendance at the Special Meetingmeeting will not, by itself, revoke a proxy).
Please note, however, that if your shares of Common Stock are held of record by a brokerage firm, bank or other nominee and you wish to revoke a proxy, you must contact that firm to revoke or change any prior voting instructions.
Voting Results
Voting results will be tabulated and certified by the inspector of elections appointed for the SpecialAnnual Meeting. The preliminary voting results will be announced at the SpecialAnnual Meeting and posted on our website at http:https://ir.neurobopharma.com.www.neurobopharma.com/financial-information/sec-filings. The final results will be tallied by the inspector of elections and disclosed in a current reportCurrent Report on Form 8-K, which we intend to file with the Securities and Exchange Commission (the “SEC”) within four business days of the SpecialAnnual Meeting.
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CAUTIONARY INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
This proxy statement, and the documents incorporated by reference into this proxy statement, contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, including, but not limited to, statements regarding: the Company’s strategy, anticipated clinical development milestones, future operations, future financial position, future revenue, projected expenses, prospects, plans and objectives of management or the expected features of or potential indications for the Company’s product candidates; uses of proceeds; projected cash runways; and stockholder approval of the conversion rights of the Series A Preferred Stock. The use of words such as, but not limited to, “anticipate,” “believe,” “continue,” “could,” “estimate,” “expect,” “intend,” “may,” “might,” “plan,” “potential,” “predict,” “project,” “should,” “target,” “will,” or “would” and similar words expressions are intended to identify forward-looking statements. Forward-looking statements are neither historical facts nor assurances of future performance. Instead, they are based on our current beliefs, expectations and assumptions regarding the future of our business, future plans and strategies, our clinical results and other future conditions. New risks and uncertainties may emerge from time to time, and it is not possible to predict all risks and uncertainties. No representations or warranties (expressed or implied) are made about the accuracy of any such forward-looking statements. We may not actually achieve the forecasts disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking statements. Such forward-looking statements are subject to a number of material risks and uncertainties including but not limited to those set forth under the caption “Risk Factors” in this Proxy Statement and in the Company’s most recent Quarterly Report on Form 10-Q filed with the SEC, as well as discussions of potential risks, uncertainties, and other important factors in our subsequent filings with the SEC. Any forward-looking statement speaks only as of the date on which it was made. Neither we, nor our affiliates, advisors or representatives, undertake any obligation to publicly update or revise any forward-looking statement, whether as result of new information, future events or otherwise, except as required by law. These forward-looking statements should not be relied upon as representing our views as of any date subsequent to the date hereof.
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PROPOSALSCORPORATE GOVERNANCE STANDARDS AND DIRECTOR INDEPENDENCE
PROPOSAL 1 – APPROVAL OF THE ISSUANCE OF SHARES OF OUR COMMON STOCK
We are committed to good corporate governance practices. These practices provide an important framework within which the Board and management pursue our strategic objectives for the benefit of our stockholders.
UPON CONVERSION OF OUR SERIES A CONVERTIBLE PREFERRED STOCK AND
Corporate Governance Guidelines
EXERCISE OF WARRANTS ISSUED IN CONNECTION WITH OUR LICENSE OF
CERTAIN ASSETS FROM DONG-A ST CO. LTD. AND ISSUANCE OF SHARES IN RESPECT
OF REGULATORY AND COMMERCIAL MILESTONES PURSUANT TO NASDAQ LISTING
RULES 5635(A), 5635(B) AND 5635(D)The Board has adopted Corporate Governance Guidelines that set forth expectations for directors, director independence standards, Board committee structure and functions and other policies for the governance of the Company. Our Corporate Governance Guidelines are available without charge on the investor relations section of our website at http://neurobopharma.com under “Investors & News-Corporate Governance-Highlights”.
Transactions with Dong-A ST Co. Ltd.Board Leadership Structure
On September 14, 2022, we entered intoThe Board is currently chaired by Andrew Koven, who has authority, among other things, to call and preside over meetings of the Board, to set meeting agendas and to determine materials to be distributed to the Board and, accordingly, has substantial ability to shape the work of the Board.
The positions of our chairman of the Board and Chief Executive Officer are presently separated. Separating these positions allows our Interim Chief Executive Officer, Joseph Hooker, to focus on our day-to-day business, while allowing Mr. Koven to lead the Board.
Role of the Board in Risk Oversight
One of the key functions of the Board is informed oversight of our risk management process. The Board does not have a seriesstanding risk management committee, but rather administers this oversight function directly through the Board as a whole, as well as through various standing committees of agreements with Dong-A described below, including the License Agreement,Board that address risks inherent in their respective areas of oversight. This risk management process allows the Shared Services Agreement,Board to play an active role in understanding and overseeing the Securities Purchase Agreement,management of risks that our Company faces and ensures that management has the Registration Rights Agreementframework and processes in place to effectively and adequately monitor and manage these risks. In particular, the Board is responsible for monitoring and assessing strategic risk exposure and our audit committee has the responsibility to consider and discuss our major financial risk exposures and the Investor Rights Agreement (the steps our management has taken to monitor and control these exposures, including guidelines and policies to govern the process by which risk assessment and management is undertaken. The audit committee also monitors compliance with legal and regulatory requirements. Our nominating and corporate governance committee monitors the effectiveness of our corporate governance practices, including whether they are successful in preventing illegal or improper liability-creating conduct. Our compensation committee assesses and monitors whether any of our compensation policies and programs has the potential to encourage excessive risk-taking.
Director Independence
The Common Stock is listed on the Nasdaq Capital Market (““Dong-A Agreements”Nasdaq”). On November 8, 2022,Under the transactions contemplated byrules of Nasdaq, independent directors must comprise a majority of a listed company’s Board. In addition, the Dong-A Agreements (the “Dong-A Transactions”) were consummated and the License Agreement became effective.
License Agreement
On September 14, 2022, we entered into an exclusive license agreement (the “License Agreement”) with Dong-A pursuant to which,rules of Nasdaq require that, subject to specified exceptions, each member of a listed company’s audit, compensation and nominating and corporate governance committees be independent. Under the conditions set forth therein, we would receiverules of Nasdaq, a director will only qualify as an exclusive license (other than“independent director” if, in the Republicopinion of Korea and certain other Asian countries) to two proprietary compounds for specified indications. The License Agreement coversthat company’s board of directors, that person does not have a relationship that would interfere with the rights to a compound referred to as DA-1241 for treatmentexercise of nonalcoholic steatohepatitis (“NASH”) and a compound referred to as DA-1726 for treatment of obesity and NASH. We may also develop DA-1241 forindependent judgment in carrying out the treatment of Type 2 Diabetes Mellius.
Under the terms of the License Agreement, Dong-A (i) received an upfront payment of $22,000,000, which was paid in sharesresponsibilities of a new series of preferred stock designated as “Series A Convertible Preferred Stock”, par value $0.001 per share (the “Series A Convertible Preferred Stock”) under the terms of the Securities Purchase Agreement (as defined below) (the “Upfront License Payment”), which would be converted into shares of our common stock upon approval of this Proposal 1; (ii)director. Additionally, compensation committee members must not have a relationship with us that is eligible to receive single digit royalties on net sales received by the Company from the commercial sale of products covering DA-1241 or DA-1726; (iii) is eligible to receive commercial-based milestone payments, dependent upon the achievement of specific commercial developments, which commercial milestone payments may be paid in shares of our common stock (the “Commercial Milestone Shares”), with the price per share determined based on the VWAP (as defined in the License Agreement) for the 30 trading days ending on the trading day priormaterial to the date on which achievement of such milestone is announced (the “30-day VWAP”); and (iv)director’s ability to be eligible to receive regulatory milestone payments of up to $178 million for DA-1726 and $138 million for DA-1241, dependent upon the achievement of specific regulatory developments, which regulatory milestone payments may be paid in shares of our common stock (together with the Commercial Milestone Shares, the “Milestone Shares”), based on the 30-day VWAP.
The term of the License Agreement will continue on a product-by-product and country-by-country basis until the later of (i) the fifth anniversary of the first commercial sale of such product in such country, (ii) the expiration or termination of the last valid patent claim that covers a product in such country and (iii) the loss of regulatory exclusivity for such product in such jurisdiction. Either we or Dong-A may terminate the License Agreement (i) if the other party is in material breach of the agreement and has not cured or started to cure the breach within 60 days of notice of such breach; provided that if the breach cannot be cured within the 60-day period and the breaching party started to remedy the breach, if such breach is not cured within 90 days of receipt of written notice or (ii) if the other party is subject to a bankruptcy or insolvency event (subject to a 30-day cure period in the case of a petition for bankruptcy).
The foregoing description of the License Agreement is a summary and is qualified in its entirety by reference to the provisions of the License Agreement, which was included as Exhibit 10.1 to our Current Report on Form 8-K filed on September 14, 2022.
Shared Services Agreement
On September 14, 2022,independent from management in connection with the License Agreement, weduties of a compensation committee member.
Audit committee members must also satisfy the independence criteria set forth in Rule 10A-3 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). In order to be considered independent for purposes of Rule 10A-3, a member of an audit committee of a listed company may not, other than in his or her capacity as a member of the audit committee, the board of directors or any other board of directors committee: (i) accept, directly or indirectly, any consulting, advisory or other compensatory fee from the listed company or any of its subsidiaries; or (ii) be an affiliated person of the listed company or any of its subsidiaries.
The Board has undertaken a review of the independence of each director and Dong-A entered intoconsidered whether each director has a shared services agreement (the “Shared Services Agreement”). The Shared Services Agreement providesmaterial relationship with us that Dong-A willcould compromise his or her ability to exercise independent judgment in carrying out his or her responsibilities. As a result of this review, the Board affirmatively determined that Mark A.
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provide technical support, pre-clinical development,Glickman, Na Yeon (Irene) Kim, Jason Groves, Michael Salsbury, Andrew Koven, Hyung Heon Kim, D. Gordon Strickland and clinical trials support services in exchange for payment to Dong-ADouglas Swirsky, who was a member of the board through January 2022, are “independent directors” as set forth therein. In addition, the Shared Services Agreement provides that Dong-A will manufacture all of our clinical requirements of DA-1241 and DA-1726defined under the terms providedapplicable rules and regulations of the SEC and the listing requirements and rules of Nasdaq. The Board determined that Richard Kang, our former Chief Executive Officer, President, Interim Chief Financial Officer, Secretary and Treasurer, who served as a director until his resignation on March 29, 2023, was not independent. In making this determination, the Board considered the current and prior relationships that each non-employee director has with us and all other facts and circumstances that the Board deemed relevant in determining each non-employee director’s independence, including the Shared Services Agreement.participation by our non-employee directors, or their affiliates, in certain financing transactions by the Company and the beneficial ownership of the Common Stock by each non-employee director. See “Certain Relationships and Related-Party Transactions” and “Security Ownership of Certain Beneficial Owners and Management.”
Either party may terminateCommittees of the Shared Services Agreement for the other party’s material breach that is not cured within 30 days of notice. Dong-A may also terminate the Shared Services Agreement in part on a service-by-service or product-by-product basis upon a breach by us which is not cured within 30 days.Board
The foregoing descriptionBoard has established an audit committee, a compensation committee, and a nominating and corporate governance committee, each of which has the composition and responsibilities described below. In September 2021, the Board formed the transaction committee, consisting of four members of the Shared Services Agreement is a summary and is qualified in its entirety by referenceBoard to the provisions of the Shared Services Agreement, which was included as Exhibit 10.2 to our Current Report on Form 8-K filed on September 14, 2022.
Securities Purchase Agreement
On September 14, 2022, in connection with the License Agreement, we entered into a Securities Purchase Agreement with Dong-A (the “Securities Purchase Agreement”). Pursuant to the Securities Purchase Agreement, upon the consummation of the License Agreement and our raising at least $15 million from outside investors, (i) Dong-A received the Upfront License Payment and (ii) Dong-A purchased from us $15 million in value of shares of Series A Convertible Preferred Stock and 10,000,000 warrants to purchase shares of our common stock (the “Private Offering Warrants”), of which 5,000,000 were substantially equivalent to the Series A Warrants and 5,000,000 were substantially equivalent to the Series B Warrants issued to investors in our underwritten public offering that closed on November 8, 2022.
As a condition to the execution of the Securities Purchase Agreement, we obtained support agreements from holders of approximately 28% of the outstanding shares of the Company, pursuant to which such holders agreed to vote in favor of this Proposal 1. We anticipate that Dong-A, which holds approximately 10.6% of the outstanding shares of the Company on the Record Date, will vote in favor of Proposal 1.
The terms of the Series A Convertible Preferred Stock are set forth in the Series A Certificate of Designation (as defined below) and described in greater detail below. Underreview the terms of our Series A Convertible Preferred Stock, at such time as we obtainlicense and financing agreements with Dong-A ST Co. Ltd., which were consummated in November 2022. Members serve on these committees until their resignation or until otherwise determined by the requisite stockholder approvalBoard.
Copies of the charters for the issuanceaudit, compensation and nominating and corporate governance committees are available without charge on the investor relations section of our website at http://neurobopharma.com under “Investors & News-Corporate Governance-Highlights”.
Audit Committee
Our audit committee is comprised of Jason Groves, Andrew Koven and D. Gordon Strickland, with Mr. Strickland serving as chair of the common stock underlyingcommittee. Each member of our audit committee meets the Series A Convertible Preferred Stock (the “Stockholder Approval”),requirements for independence under the sharescurrent Nasdaq and SEC rules and regulations and is financially literate. Our audit committee is directly responsible for, among other things:
our accounting and financial reporting processes, including our financial statement audits and the integrity of our financial statements;
our compliance with legal and regulatory requirements;
the qualifications, independence and performance of our independent auditors; and
the preparation of the Series A Convertible Preferred Stock will automatically convert into sharesaudit committee report to be included in our annual proxy statement.
The responsibilities and activities of our common stock at a conversion price equal to the price per shareaudit committee are described further in its charter.
Report of the Audit Committee
The information contained in the Qualified Financing (as defined in the Securities Purchase Agreement), which was $3.00 per share. Furthermore, the Private Offering Warrants may not be exercised by Dong-A prior to our receiptfollowing report of the Stockholder Approval.
Pursuantaudit committee is not considered to the Securities Purchase Agreement, we have agreed to call a special meeting of stockholders not later than 60 days after the closingbe “soliciting material,” “filed” or incorporated by reference in any past or future filing by us under the Securities Purchase Agreement to obtain the Stockholder Approval, with respect to the shares of our common stock issuable upon the conversion of the Series A Convertible Preferred Stock and the exercise of the Private Offering Warrants issued under the Securities Purchase Agreement. We agreed to prepare and file a proxy statement with respect to such special meeting of stockholders within 10 days after the closing under the Securities Purchase Agreement. In the event that we do not obtain the Stockholder Approval at the first stockholder meeting, we are obligated to hold a meeting every four months thereafter.
The foregoing description of the Securities Purchase Agreement is a summary and is qualified in its entirety by reference to the provisions of the Securities Purchase Agreement, which was included as Exhibit 10.1 to our Current Report on Form 8-K filed on September 14, 2022.
Registration Rights Agreement
In connection with the Securities Purchase Agreement, on September 14, 2022, we entered into a registration rights agreement with Dong-A and certain other stockholders (the “Registration Rights Agreement”). The Registration Rights Agreement provides Dong-A with demand and piggyback registration rights, including the right to two long-form registration statements. In addition, we agreed to file, within 30 days following the Stockholder Approval, a registration statement to (i) register the shares of common stock issuable upon the conversion of the Series A Convertible Preferred Stock; (ii) shares of our common stock issuable upon the exercise of the Private Offering Warrants; and (iii) any other common stock held by the parties to the Registration Rights Agreement (the “Registrable Securities”); and to use commercially reasonable efforts to cause each registration statement to be declared effective underExchange Act or the Securities Act of 1933, as amended (the “Securities Act”), unless and only to the extent that we specifically incorporate it by reference.
The audit committee has reviewed and discussed with our management and BDO USA, LLP our audited financial statements as promptly as possible afterof and for the year ended December 31, 2022. The audit committee has also discussed with BDO USA, LLP the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (United States) (“PCAOB”) and the SEC.
The audit committee has received and reviewed the written disclosures and the letter from BDO USA, LLP required by applicable requirements of the PCAOB regarding the independent accountant’s communications with the audit committee concerning independence, and has discussed with BDO USA, LLP its independence.
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Based on the filing thereof, but in any event no later thanreview and discussions referred to above, the 60th day after Stockholder Approval (or in caseaudit committee recommended to the SEC reviews the registration statement, the 90th date after Stockholder Approval); provided that if we are notifiedBoard that the registration statementaudited financial statements as of and for the year ended December 31, 2022 be included in our annual report on Form 10-K for the year ended December 31, 2022 for filing with the SEC.
Audit Committee
D. Gordon Strickland (Chair)
Jason Groves
Andrew Koven
Compensation Committee
Our compensation committee is not being reviewed orcurrently comprised of Hyung Heon Kim, Na Yeon (Irene) Kim and Michael Salsbury, with Mr. Salsbury serving as chair of the committee. Each member of our compensation committee meets the requirements for independence under the current Nasdaq and SEC rules and regulations. Our compensation committee is no longer subjectresponsible for, among other things:
evaluating, recommending, approving and reviewing executive officer and director compensation arrangements, plans, policies and programs;
administering our cash-based and equity-based compensation plans; and
making recommendations to comment, we are requiredthe Board regarding any other Board responsibilities relating to make the registration statement effectiveexecutive compensation.
The executive officer compensation program is substantially based on decisions made by the fourth trading day after such date. We agreed to use our commercially reasonable efforts to keep such registration statement continuously effective undercompensation committee, in consultation with certain members of management. Compensation determinations for the Securities Act until the date that all Registrable Securities covered by such registration statement have been sold orexecutive officers are otherwise able to be sold pursuant to Rule 144.made based on historical practice, Company and individual performance and benchmarking compensation of similar positions at peer group companies.
The foregoing descriptioncompensation committee may form and delegate its authority to subcommittees as appropriate. The responsibilities and activities of the Registration Rights Agreement is a summary and is qualifiedcompensation committee are described further in its entirety by reference to the provisions of the Registration Rights Agreement, which was included as Exhibit 10.3 to our Current Report on Form 8-K filed on September 14, 2022.charter.
Investor Rights Agreement
On September 14, 2022, we entered into an investor rights agreement with Dong-A (the “Investor Rights Agreement”) pursuant to which, following our receipt of the Stockholder Approval and the conversion of the Series A Convertible Preferred Stock into common stock, Dong-A will have the right, subject to the terms thereof, to designate for appointment to our Board that number of directors commensurate with Dong-A’s and its affiliates’ beneficial ownership of our common stock, with the number of directors that Dong-A is entitled to designate rounded up to the nearest whole number (the “DA Designees”). Upon obtaining the Stockholder Approval, to the extent necessary to permit the designation of the DA Designees, the size of our Board shall be increased to that number of directors that would permit Dong-A to designate a number of directors to fill the vacancies created thereby that is commensurate with Dong-A’s and its affiliates’ collective beneficial ownership of the common stock outstanding at such time (taking into account any DA Designees already serving on our Board of Directors at such time). The compensation (including equity-based compensation) and rights to indemnity of, and reimbursement of expenses incurred by, the DA Designees that are members of our Board will be the same as those provided to other non-employee directors generally. When evaluating a prospective DA Designee for membership on our Board, our Board and the Nominating and Corporate Governance Committee shall apply
Our nominating and corporate governance committee is comprised of Jason Groves, Hyung Heon Kim and Andrew Koven, with Mr. Kim serving as chair of the same review processescommittee. Each member of our nominating and standards as eachcorporate governance committee meets the requirements for independence under the current Nasdaq and SEC rules and regulations. Our nominating and corporate governance committee is responsible for, among other things:
identifying, considering and recommending candidates for membership on the Board;
overseeing the process of them, respectively,evaluating the performance of the Board; and
advising the Board on other corporate governance matters.
The responsibilities and activities of the nominating and corporate governance committee are described further in its charter.
Code of Business Conduct and Ethics
The Board has adopted a code of business conduct and ethics that applies to other prospective non-employee directors generally.
In addition, the Investor Rights Agreement provides for a customary standstill for nine (9) months following our receipt of the Stockholder Approval. Furthermore, for so long as Dong-A has the right to designate any DA Designee to our Board, Dong-A will vote their sharesall of our common stock in favoremployees, officers and directors, including our Chief Executive Officer, Chief Financial Officer and other executive officers, as applicable. We intend to disclose future amendments to certain provisions of any Company Director (as defined inour code of business conduct and ethics, or waivers of these provisions, on our website. The full text of our code of conduct is posted on the Investor Rights Agreement) or any nominee designated byinvestor relations section of our website at http://neurobopharma.com under “Investors & News-Corporate Governance-Highlights”.
Board and Committee Meetings and Attendance
The Board and some of its committees meet throughout the Nominatingyear and Corporate Governance Committee ofalso hold special meetings. During 2022, the Board held four meetings; the audit committee held four meetings; the transaction committee held 32 meetings; and againstneither the removal ofcompensation committee nor the nominating and corporate governance committee held any Company Director,meetings, in each case, at any meeting of the stockholders.
including telephonic meetings. The foregoing description of the Investor Rights Agreement is a summaryBoard and is qualified in its entiretycommittees also act by referencewritten consent from time to the provisions of the Investor Rights Agreement, which was included as Exhibit 10.4 to our Current Report on Form 8-K filed on September 14, 2022.
Terms of Series A Preferred Stock
We have designated 3,700 shares of our authorized and unissued preferred stock as Series A Convertible Preferred Stock by filing the Series A Certificate of Designation of Preferences, Rights and Limitations of Series A Convertible Preferred Stock (the “Series A Certificate of Designation”) with the Delaware Secretary of State. Upon the closing of the Dong-A Transaction, we issued 3,700 shares of Series A Convertible Preferred Stock to Dong-A.
Each share of Series A Convertible Preferred Stock will be convertible into 3,333.33 shares of our common stock, subject to adjustment as provided in the Series A Certificate of Designation. Each share of Series A Convertible Preferred Stock will be automatically converted into shares of common stock on the day following Stockholder Approval. We will not undertake any conversion of the Series A Convertible Preferred Stock, and no stockholder will have the right to convert any portion of its Series A Convertible Preferred Stock, until after we obtain Stockholder Approval. The holder of Series A Convertible Preferred Stock may elect to exchange the Series A Convertible Preferred Stock following the nine-month anniversary of the issuance thereof for the cash value of such shares as calculated based on the volume-weighted average price per share of our common stock on the day immediately prior to the date of conversion, in lieu of delivery of shares of common stock (if the shares deliverable upon conversion would otherwise violate listing rules of the Nasdaq Stock Market).
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The Series A Convertible Preferred Stock is seniortime. During 2022, none of the directors serving attended fewer than 75% of the aggregate of the total number of meetings held by the Board during his or her tenure and the total number of meetings held by all committees of the Board on which such director served during his or her tenure.
Board Attendance at Annual Stockholders’ Meeting
Directors are requested to allattend the Annual Meeting, either in person or telephonically. All of the directors then serving attended the 2022 Annual Meeting.
Communication with Directors
Stockholders and interested parties who wish to communicate with the Board, non-management members of the Board as a group, a committee of the Board or a specific member of the Board (including our Chairman) may do so by letters addressed to the attention of our other equity securities andSecretary, NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, 19th Floor, Boston, Massachusetts 02116.
All communications by letter addressed to the liquidation preference per shareattention of Series A Convertible Preferred Stockour Secretary will be reviewed by the amountSecretary and provided to the members of the Board unless such holders would receive if such holders had convertedcommunications are unsolicited items, sales materials and other routine items and items unrelated to the Series A Convertible Preferred Stock into sharesduties and responsibilities of common stock immediately prior to such liquidation.the Board.
Considerations in Evaluating Director Nominees
The Series A Convertible Preferred Stock will have no voting rights, except asnominating and corporate governance committee reviews and makes recommendations to the Board, from time to time, regarding the appropriate skills and characteristics required by law and except thatof Board members in the consentcontext of the holders of a majoritycurrent make-up of the then outstanding Series A Convertible Preferred Stock is required to amendBoard, the terms of the Series A Certificate of Designation. The holders of the Series A Convertible Preferred Stock are entitled to receive dividends on an as-converted basis with the holders of the Company’s common stock, when, as and if such dividends are paid on our common stock. In the event of any liquidation, dissolution or winding-upoperations of the Company and the holderslong-term interests of stockholders. The nominating and corporate governance committee does not have any specific minimum qualifications that director nominees must have in order to be considered to serve on the Series A Convertible Preferred Stock will participate pari passuBoard. The nominating and corporate governance committee does not have a specific diversity policy underlying its nomination process, although it seeks to ensure the Board includes directors with the holders of our common stock, on an as-converted basis.
The foregoing description of the Series A Certificate of Designation is a summarydiverse backgrounds, qualifications, skills and is qualified in its entirety by referenceexperience relevant to the provisionsCompany’s business.
In the case of an incumbent director whose term of office is set to expire, the Series A Certificate of Designation, which was included as Exhibit 3.1 to our Current Report on Form 8-K filed on November 8, 2022.
Terms of Private Offering Warrants
The Private Offering Warrants, ifnominating and when this Proposal 1 is approved, will have an initial exercise price per share equal to $3.00. Warrants to purchase 5,000,000 shares, which are substantially equivalentcorporate governance committee considers such director’s overall service to the Series A Warrants issued in our underwritten public offering, will be exercisable upon Stockholder Approval and will expire on the first anniversary of Stockholder Approval and warrants to purchase 5,000,000 shares, which are substantially equivalent to the Series B Warrants issued in our underwritten public offering, will be exercisable upon Stockholder Approval and expire on the fifth anniversary of Stockholder Approval. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizationsCompany during his or similar events affecting our shares of common stock and the exercise price.
The Private Offering Warrants will be exercisable, at the option of the holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full forher term, including the number of sharesmeetings attended, level of common stock purchased uponparticipation, quality of performance, and any other relationships and transactions that might impair such exercise (except indirector’s independence. Generally, the case of a cashless exercise, as discussed below). A holder (together with its affiliates) may not exercise any portion ofcommittee will re-nominate incumbent directors who continue to satisfy the Private Offering Warrantscommittee’s criteria for membership on the Board, continue to make important contributions to the extentBoard and consent to continue their service on the Board.
If a vacancy on the Board occurs or the Board increases in size, the nominating and corporate governance committee will actively seek individuals that satisfy the holder would own more than 4.99% (or, atcommittee’s criteria for membership on the election ofBoard, and the holder, 9.99%) of the outstanding shares of common stock immediately after exercise. However, upon noticecommittee may rely on multiple sources for identifying and evaluating potential nominees, including referrals from the holder to us, the holderour current directors and management. The Board may decreaseengage search firms or increase the holder’s beneficial ownership limitation, which may not exceed 9.99% of the number of outstanding shares of common stock immediately after giving effect to the exercise, as such percentage ownership is determined in accordance with the terms of the Private Offering Warrants, provided that any increase in the beneficial ownership limitation will not take effect until 61 days following notice to us. Dong-A elected to have the initial exercise limitation set at 9.99% of our outstanding shares of common stock. No fractional shares will be issuedother third parties in connection with the exercise of Private Offering Warrant. In lieu of fractional shares, we will either pay the holder an amount in cash equal to the fractional amount multiplied by the exercise price or round down to the next whole share.
If, at the time a holder exercises its Private Offering Warrants, a registration statement registering the issuance of the shares of common stock underlying the Private Offering Warrants under the Securities Act is not then effective or availableidentifying and an exemption from registration under the Securities Act is not available for the issuance of such shares, then in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the common warrants.
Additionally, the Private Offering Warrants may be exercised on a “cashless” basis after the initial exercise date. In such event, the aggregate number of shares of common stock issuable in such cashless exercise shall equal the product of (x) the aggregate number of shares of common stock that would be issuable upon exercise of the Private Offering Warrants in accordance with their terms if such exercise were by means of a cash exercise rather than a cashless exercise and (y) 1.00.
Except as otherwise provided in the Private Offering Warrants or by virtue of such holder’s ownership of our shares of common stock, the holders of the Private Offering Warrants do not have the rights or privileges of holders of our shares of common stock, including any voting rights, until they exercise their warrants.evaluating Board nominee candidates.
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InBoard Diversity Matrix (as of May 16, 2023)
The following matrix is provided in accordance with applicable Nasdaq listing requirements and includes all directors as of May 16, 2023.
Total Number of Directors
​​
7
 
​​
Female
​​
Male
​​
Non-
Binary
​​
Did Not
Disclose
Gender
Part I: Gender Identity
​​
 
​​
 
​​
 
​​
 
Directors
​​
1
​​
5
​​
—
​​
—
Part II: Demographic Background
​​
 
​​
 
​​
 
​​
 
African American or Black
​​
—
​​
1
​​
—
​​
—
Alaskan Native or American Indian
​​
—
​​
—
​​
—
​​
—
Asian
​​
1
​​
1
​​
—
​​
—
Hispanic or Latinx
​​
—
​​
—
​​
—
​​
—
Native Hawaiian or Pacific Islander
​​
—
​​
—
​​
—
​​
—
White
​​
—
​​
4
​​
—
​​
—
Two or More Races or Ethnicities
​​
—
​​
—
​​
—
​​
—
LGBTQ+
​​
—
​​
—
​​
—
​​
—
Did Not Disclose Demographic Background
​​
—
​​
—
​​
—
​​
—
Stockholder Recommendations for Nominations to the eventBoard of Directors
The nominating and corporate governance committee will consider properly submitted stockholder recommendations for candidates for the Board so long as such recommendations are sent on a fundamental transaction, as describedtimely basis and are otherwise in accordance with our Third Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”), our Second Amended and Restated Bylaws and applicable law. A stockholder of record can nominate a candidate for election to the Board by complying with the procedures in Article I, Section 5 of our Second Amended and Restated Bylaws and applicable law. Any eligible stockholder who wishes to submit a nomination should review the requirements in the Private Offering WarrantsSecond Amended and generally including any reorganization, recapitalization or reclassification ofRestated Bylaws on nominations by stockholders. Any nomination should be sent in writing to our shares of common stock,Secretary, NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, 19th Floor, Boston, Massachusetts, 02116.
See “Additional Information-Stockholder Proposals to be Presented at Next Annual Meeting” for additional information. The committee will evaluate nominees recommended by stockholders against the sale, transfer orsame criteria that it uses to evaluate other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding shares of common stock, or any person or group becoming the beneficial owner of more than 50% of the voting power represented by our outstanding shares of common stock, the holders of the warrants will be entitled to receive upon exercise of the Private Offering Warrants the kindnominees.
Employee, Officer, and amount of securities, cash or other property that the holders would have received had they exercised the Private Offering Warrants immediately prior to such fundamental transaction. Additionally, as more fully described in the Private Offering Warrants, in the event of certain fundamental transactions, the holders of the Private Offering Warrants will be entitled to receive consideration in an amount equal to the Black-Scholes value of the Private Offering Warrants on the date of consummation of the transaction.Director Hedging
The Private Offering Warrants are callable by us in certain circumstances. Subject to certain exceptions, in the event that the Private Offering Warrants are outstanding, if, after the closing date, (i) the volume weighted average price of our common stock for any 20 consecutive trading days (the “Measurement Period”), which Measurement Period will commence no sooner than the date the Stockholder Approval is obtained, exceeds 300% of the exercise price (subject to adjustment for forward and reverse stock splits, recapitalizations, stock dividends and similar transactions after the initial exercise date), (ii) the average daily trading volume for such Measurement Period exceeds $500,000 per trading day, and (iii) the warrant holder is not in possession of any information that constitutes or might constitute, material non-public information which was provided by the Company, and subject to the applicable beneficial ownership limitation, then we may, within one trading day of the end of such Measurement Period, upon notice (a “Call Notice”), call for cancellation of all or any portion of the warrants for which a notice of exercise has not yet been delivered for consideration equal to $0.001 per warrant share. Any portion of a Purchaser Warrant subject to such Call Notice for which a notice of exercise shallWe do not have been received by the date specified in the Call Notice will be canceleda hedging policy for our employees, officers, and directors at 6:30 p.m. (New York City time) on the tenth trading day after the date the Call Notice is sent by the Company. Our right to call the Private Offering Warrants shall be exercised ratably among the holders based on the then outstanding warrants.
The foregoing description of the Private Offering Warrants, which would become exercisable upon approval of this Proposal 1, is a summary and is qualified in its entirety by reference to the provisions of the Private Offering Warrants, the forms of which were included as Exhibit 4.1 and 4.2 to our Current Report on Form 8-K filed on November 8, 2022.
Reasons for Seeking Stockholder Approval
Nasdaq Listing Rule 5635(a)(2)
Our common stock is listed on the Nasdaq Capital Market and, as such, it is subject to the Nasdaq Listing Rules. Nasdaq Listing Rule 5635(a)(2) requires that an issuer obtain stockholder approval prior to the issuance of common stock in certain circumstances, including in connection with the acquisition of stock or assets of another company if any director, officer or “substantial shareholder” has a 5% or greater interest directly or indirectly in the assets to be acquired or in the consideration to be paid in the transaction and the present or potential issuance of common stock, or securities convertible into or exercisable for common stock, could result in an increase in outstanding common shares or voting power of 5% or more.
As of the Record Date, Dong-A owned approximately 10.6% of our outstanding shares of common stock, making Dong-A a “substantial shareholder” of our company. If Dong-A were to receive common stock upon conversion of the Series A Convertible Preferred Stock issued for the Upfront License Payment or under the Securities Purchase Agreement or Milestone Shares, Dong-A’s holding of common stock would increase by 5% or more. Therefore, stockholder approval of the issuance of common stock underlying the Series A Convertible Preferred Stock and the Private Offering Warrants and the issuance of Milestone Shares is required.
Nasdaq Listing Rule 5635(b)
Nasdaq Listing Rule 5635(b) requires that an issuer obtain stockholder approval prior to the issuance of common stock in case there is a change of control, which for purposes of Nasdaq Listing Rule 5635(b) is generally considered to occur when an investor or investor group acquires or has the right to acquire 20% or more of a company’s outstanding common stock or voting power and such ownership or voting power would be the largest ownership position. As described above, subject to other conversion restrictions, the Series A Convertible Preferred Stock is nottime.
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convertiblePROPOSAL 1
ELECTION OF CLASS I DIRECTORS
The Board is divided into sharesthree classes. Members of common stockeach class serve staggered three-year terms. Directors in Class I will stand for election at the Annual Meeting. The terms of office of directors in Class II and Class III do not expire until the Private Offering Warrants are not exercisable for sharesannual meetings of common stock until stockholder approval is received throughstockholders to be held in 2024 and 2025, respectively. The Board currently consists of seven members. Based on the approval of this Proposal 1.
If Dong-A were to receive common stock upon conversionrecommendation of the Series A Convertible Preferred Stock issuednominating and corporate governance committee of the Board, the Board has re-nominated Na Yeon (Irene) Kim and D. Gordon Strickland for election as Class I directors to serve for three-year terms ending at the 2026 annual meeting or until their successors are elected and qualified.
Each of Ms. Kim and Mr. Strickland has consented to serve if elected. If either of them should become unavailable, the Board may designate a substitute nominee. In that case, the proxy holder named as proxy in the accompanying proxy card will vote for the Upfront License Payment or underBoard’s substitute nominee and make appropriate disclosures. Alternatively, the Securities Purchase Agreement, exerciseBoard may leave the position vacant.
Each director will be elected by a plurality of the Private Offering Warrantsvotes present in person or as Milestone Shares, werepresented by proxy at the meeting and entitled to vote. This means that the two individuals nominated for election to the Board at the Annual Meeting receiving the highest number of “FOR” votes will issue 20%be elected. You may either vote “FOR” all or moreany of the common stock outstanding,nominees or 20%“WITHHOLD” your vote with respect to all or moreany of the voting power and would havenominees. You may not cumulate votes in the largest ownership position, and therefore, we are seeking shareholder approvalelection of directors. Shares represented by proxies will be voted “FOR” the election of each of the issuanceClass I nominees, unless the proxy is marked to withhold authority to so vote. If any nominee is unable or unwilling to serve at the time of the underlying common stock.
Nasdaq Listing Rule 5635(d)
Nasdaq Listing Rule 5635(d) requires stockholder approval in connection withAnnual Meeting, the persons named as proxies may vote for a transaction other than a public offering involving the sale, issuance, or potential issuancesubstitute nominee chosen by the issuer of common stock (or securities convertible intopresent Board. In the alternative, the proxies may vote only for the remaining nominees, leaving a vacancy on the Board. The Board may fill such vacancy at a later date or exercisable for common stock) equal to 20% or morereduce the size of the common stock or 20% or moreBoard. We have no reason to believe that any of the voting power outstanding beforenominees will be unwilling or unable to serve if elected as a director. Additional information regarding the issuance for a price that is less than the lower of: (i) the closing price (as reflected on Nasdaq.com) immediately preceding the signingdirectors and director nominees of the binding agreement; or (ii)Company is set forth below.
Nominees to the average closing priceBoard of Directors
The nominees of the common stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signingCompany are as follows:
NAME
​​
AGE
​​
TITLE
​​
CLASS
Na Yeon (Irene) Kim(1)
​​
48
​​
Director
​​
Class I
D. Gordon Strickland(2)
​​
76
​​
Director
​​
Class I
(1)
Member of the compensation committee.
(2)
Chair of the audit committee.
Ms. Na Yeon (“Irene”) Kim has served as a member of the binding agreement.
If Dong-A were to receive common stock upon conversionBoard since December 2019 and served as the Chair of the Series A Convertible Preferred Stock issuedBoard from December 2019 to January 2021. Prior to December 2019, she had served on the board or directors of NeuroBo Pharmaceuticals, Inc., which was the private company that merged into the Company, since April 2018. Ms. Kim also currently serves as the Chief Executive Officer of E&Investment, Inc., a South Korean venture capital firm specializing in investments in life sciences companies, a position she has held since March 2018. From October 2015 until March 2018, Ms. Kim was a Representative Director for the Upfront License Payment or under the Securities Purchase Agreement, or exerciseThe SEED Investment Co., Ltd. (formerly known as OST Investment Co., Ltd.), a South Korean investment and fund manager specializing in investments in life sciences companies, and from January 2015 until December 2017, Ms. Kim served as member of the Private Offering Warrants orboard of directors of Macrogen, Inc., a South Korean, publicly-traded biotechnology company specializing in precision medicine and biotechnology. Ms. Kim also served as Milestone Shares, we will issue 20% oran officer of AJUIB Investment, Inc., a venture capital firm headquartered in South Korea specializing in investments in life-science companies from August 2014 until September 2015. Ms. Kim focuses on investment opportunities in a number of industries, particularly in the field of biopharma, and has more than 15 years of accumulated experience of investment in private equity/venture capital markets. As an investor representative, Ms. Kim has successfully managed more than $400 million in private equity and venture capital funds. Ms. Kim holds an M.S. and B.S. in biomolecular engineering, as well as an M.B.A. from Yonsei University in Korea. The Board believes that Ms. Kim’s specialized knowledge in building value in life sciences companies and her extensive investment management experience qualify her to serve as a director.
Mr. D. Gordon Strickland has served as a member of the common stock outstanding, or 20% or moreBoard since January 2022. He served as Chairman of the voting power of ourAmpex Corporation, a publicly-traded technology company, at a lower price than the prices described abovefrom March 2012 until June 2019. He also served as Ampex’s Chief Executive Officer from February 2007 to March 2012. Prior to Ampex, he served as President and therefore, we are seeking shareholder approval of the issuance of the underlying common stock.
Consequences of Not Approving this Proposal
If we do not obtain stockholder approval for this Proposal 1, Dong-A will not be able convert the Series A Convertible Preferred Stock into shares of our common stock or the exercise of the Private Offering Warrants and we will not have the option to pay milestone payments under the License Agreement in Milestone Shares. As described above, if Stockholder Approval is not obtained by the nine-month anniversary of the issuance thereof, the holder of Series A Convertible Preferred Stock may elect to exchange the Series A Convertible Preferred Stock for the cash value of such shares as calculated based on the volume-weighted average price per share of our common stock on the day immediately prior to the date of conversion, in lieu of delivery of shares of common stock. Furthermore, we will not be able to elect to make payments to Dong-A when we achieve commercial and regulatory milestones in Milestone Shares and will have to make such payments in cash. Under our agreement with Dong-A, we are required to submit the proposal for conversion of the Series A Convertible Preferred Stock and exercise of the Private Offering Warrants to stockholders and, if such approval is not obtained, to hold a meeting of the Company’s stockholders every four (4) months thereafter to seek such approval until the earlier of the date such approval is obtained or the Series A Convertible Preferred Stock and the Private Offering Warrants are no longer outstanding.
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ConsequencesChief Executive Officer of ApprovingCardiff Holdings, a privately held producer of credit, debit, loyalty and other cards by Brookside Equity Partners from March 2012 to August 2013. Prior to Cardiff Holdings, Mr. Strickland was the Proposal
Ifchairman of Medical Resources, a public operator of diagnostic imaging centers. Mr. Strickland was also president and CEO of MCSi, Inc, a technical integrator of audio visual products, from March 2003 until March 2004. Prior to MCSi, Mr. Strickland was the Company’s stockholders approve this Proposal 1, Dong-A’s Series A Convertible Preferred Stock will be automatically converted into 12,333,333 sharespresident and CEO of common stock. In addition,Capitol Wire, Inc, an internet based news and information service provider from September 1999 until August 2002 and had leadership roles with Kerr Group, a manufacturer of glass containers and plastic packaging, from June 1986 until August 1997, including serving as the Private Offering Warrants will be exercisable for 10,000,000 sharespresident and CEO, and as Senior Vice President, Finance and Chief Financial Officer. Mr. Strickland has over 35 years of common stock atexperience as a senior executive and board member with public and private companies. Mr. Strickland received an exercise price of $3.00 per share, subject to a “cashless” exercise provision pursuant to which each such Purchaser Warrant may be exercised by exchanging it for one share of our common stock. UponM.B.A. from the conversion of allWharton School of the sharesUniversity of Series A Convertible Preferred Stock, the relative ownership interestsPennsylvania and voting powera B.A from Yale University. The Board believes that Mr. Strickland’s experience serving as Chairman and Chief Executive Officer of the current holders of common stock would be reduced,a publicly-traded company, Ampex, qualifies him to serve as described in the following table, based on shares of common stock outstanding as of November 8, 2022, immediatelya director.
Continuing Directors
The directors who are serving for terms that end following the consummation of the Public Offering (as defined below) and assuming conversion in full of our Series B Convertible Preferred Stock issued in the Public Offering:Annual Meeting are as follows:
 
​​
Prior to Conversion of Series A
Convertible Preferred Stock:
​​
After Conversion of Series A
Convertible Preferred Stock:
 
​​
Number of
Shares of
Common Stock
Held(*)
​​
Common Stock
Ownership
Interest
and Voting
Power(*)
​​
Number of
Shares of
Common Stock
Held
​​
Common Stock
Ownership
Interest
and Voting
Power
Current Holders of Common Stock (Excluding affiliates and holders of 5% or more of the Company’s common stock)
​​
6,340,660
​​
96%
​​
6,340,660
​​
33%
Current Holders of Common Stock (Including only affiliates and holders of 5% or more of the Company’s common stock)(*)
​​
202,013
​​
3%
​​
202,013
​​
1%
Dong-A
​​
96,020
​​
1%
​​
12,429,353
​​
66%
Total
​​
6,638,693
​​
100%
​​
18,972,026
​​
 
NAME
​​
AGE
​​
TITLE
​​
CLASS
Andrew Koven(1)
​​
65
​​
Chair of the Board of Directors
​​
Class II
Hyung Heon Kim(2)
​​
46
​​
Director
​​
Class II
Jason L. Groves(3)
​​
51
​​
Director
​​
Class II
Michael Salsbury(4)
​​
73
​​
Director
​​
Class III
Mark A. Glickman(5)
​​
57
​​
Director
​​
Class III
(*)(1)
Excludes (i) 3,700 sharesMember of Series A Convertible Preferred Stock held by Dong-A,the audit committee and (ii) warrants held by Dong-Athe nominating and corporate governance committee.
(2)
Chair of the nominating and corporate governance committee and member of the compensation committee.
(3)
Member of the audit committee and the nominating and corporate governance committee.
(4)
Chair of the compensation committee
(5)
Mr. Glickman was appointed to purchase 10,000,000 shares of common stock.the Board on May 11, 2023.
What control will Dong-A have over the Company if this Proposal 1 is Approved?
If this Proposal 1 is approved, Dong-A will own approximately 66% of the outstanding shares of our common stock. As a result, Dong-A will control a majority of our shares and, under the terms of the Investor Rights Agreement, will have the right to appoint a majority of the members of our Board. As such, Dong-A will control any vote of the Company’s stockholders.
Will stockholders have the ability to unwind the Dong-A Transactions if they do not approve this Proposal 1?
No, the Dong-A Transactions closed on November 8, 2022 and stockholder approval of this Proposal 1 was not a condition to the Dong-A Transactions. If we do not receive stockholder approval for this Proposal 1, the Series A Convertible Preferred Stock will not convert into common stock but this will not have the effect of unwinding the Dong-A Transactions.
Will the common stock issuable upon the conversion of the Series A Convertible Preferred Stock have preemptive rights?
No, if this Proposal 1 is approved, the additional shares of common stock issuable upon the conversion of the Series A Convertible Preferred Stock will not have preemptive rights.
Interests of Directors and Executive Officers
In considering the recommendation of the Company’s board of directors with respect to this Proposal 1, the Company’s stockholders should be aware that Mr. Hyung Heon Kim,Andrew I. Koven has served as a member of the Board since July 2021, and Chair of the Board since January 2022. Mr. Koven is the Lead Independent Director of Kala Pharmaceuticals, Inc., a public biopharmaceutical company focused on the discovery, development and commercialization of innovative therapies for diseases of the eye. He has served as the Lead Independent Director of Kala Pharmaceuticals, Inc. since December 2018 and as a member of the Kala board of directors since September 2017. Mr. Koven serves on Kala’s nominating and corporate governance committee and compensation committee. Mr. Koven was, until his retirement in January 2019, the President and Chief Business Officer of Aralez Pharmaceuticals Inc., or Aralez, a public specialty pharmaceutical company, and served in that role with the company’s predecessor, Pozen Inc., commencing in June 2015. Prior to joining Pozen, Mr. Koven served as Executive Vice President, Chief Administrative Officer and General Counsel of Auxilium Pharmaceuticals Inc., a public specialty biopharmaceutical company, from February 2012 until January 2015, when it was acquired by Endo International plc. Mr. Koven served as President and Chief Administrative Officer and a member of the board of directors of Neurologix, Inc., a company focused on the development of multiple innovative gene therapy development programs, from September 2011 to November 2011. Before Neurologix, Mr. Koven served as Executive Vice President and Chief Administrative and Legal Officer of Inspire Pharmaceuticals, Inc., a public specialty pharmaceutical company, from July 2010 until May 2011 when it was acquired by Merck & Co., Inc. Previously, Mr. Koven served as Executive Vice President, General Counsel and Corporate Secretary of Sepracor Inc. (now Sunovion), a public specialty pharmaceutical company, from March 2007 until February 2010 when it was acquired by Dainippon Sumitomo Pharma Co., Ltd. Prior to joining Sepracor, Mr. Koven served as Executive Vice President, General Counsel and Corporate Secretary of Dong-A. Dong-A beneficially ownsKos Pharmaceuticals, Inc., a public specialty pharmaceutical company, from August 2003 until its acquisition by Abbott Laboratories (now AbbVie) in December 2006. Mr. Koven began his career in the pharmaceutical industry first as an Assistant General Counsel and then as Associate General Counsel at Warner-Lambert Company from 1993 to 2000, followed by his role as Senior Vice President and General Counsel at Lavipharm Corporation from 2000 to 2003. From 1986 to 1992, he was a corporate associate at Cahill, Gordon & Reindel in New York. From 1992 to 1993, he served as Counsel, Corporate and Investment Division, at The Equitable Life Assurance Society of the Record Date approximately 10.8%U.S. Mr. Koven holds a Master of the issuedLaws (LL.M.) Degree from Columbia University School of Law and outstanding sharesa Bachelor of our outstanding common stock.Laws (LL.B.) Degree and
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In addition,B.A. Degree in Political Science from Dalhousie University. The Board believes that Mr. Koven’s extensive experience in the Company’s stockholders should be aware that Ms. Na Yeon (Irene)pharmaceutical industry qualifies him to serve as a director.
Mr. Hyung Heon Kim has served as a member of the Board since July 2021. Mr. Kim is the ChiefGeneral Counsel and a Vice President of Dong-A ST and Dong-A Socio Group, a Korean-based group of companies mainly engaged in the research, development, production and sale of pharmaceuticals, medical devices and APis. Mr. Kim has served as General Counsel of Dong-A ST since January 2018 and as a Vice President of Dong-A ST since December 2020. Mr. Kim previously served as Executive OfficerDirector of E&Investment, Inc.Dong-A ST from January 2018 through December 2020. Prior to his roles with Dong-A ST, Mr. Kim was Head of International Legal Affairs for Dong-A Socio Holdings Co., the general partner of The E&Healthcare Investment Fund II, The E&Healthcare Investment Fund No. 6 and The E&Healthcare Investment Fund No. 7 (the “E&H Funds”). Ms. Kim beneficially owns as of the Record Date approximately 22.6% of the issued and outstanding shares of our outstanding common stock. Ms. Kim and the E&H Funds are each consideredLtd., a related party with respect to the Registration Rights Agreement.
The Dong-A Transactions were unanimously approved by a transaction committee comprised solely of disinterested members of our Board before being recommended to our BoardKorean-based holdings company for approval and were then unanimously approved by the disinterested members of our Board.
In reviewing the Dong-A Transactions, the transaction committeeSocio group of companies from 2012 to 2018. Since April 2021, Mr. Kim has served as a director of AnaPath Services GmbH, a private Swiss-based provider of scientific research and the disinterested membersdevelopment services, and STP America Research Corp, a private New Jersey-based research and development company. Prior to joining Dong-A Socio Group, Mr. Kim served as legal counsel to SK Energy Co., Ltd. and SK Innovation Co., Ltd. from 2008 to 2011. Mr. Kim received his Bachelor of ourLaw degree from Soongshil University in Korea, and obtained his Juris Doctor from Washington University School of Law. The Board considered all relevant factsbelieves that Mr. Kim's experiences gained as General Counsel and circumstances, including without limitation, whether the Dong-A Transactions were proposedHead of International Legal Affairs to be, or were, entered into on terms no less favorablean established pharmaceutical group of companies qualify him to out Company than terms that could have been reached with an unrelated third party, the commercial reasonableness of the terms, the benefit and perceived benefit (or lack thereof) to our Company, opportunity costs of alternate transactions, the materiality and character of serve as a director.
Mr. Kim’s and Dong-A’s and Ms. Kim’s and the E&H Funds’ direct or indirect interest, and Mr. Kim’s and Dong-A’s and Ms. Kim’s and the E&H Funds’ actual or apparent conflict of interest, the transaction committee and the disinterested membersJason L. Groves, Esq. has served as a member of the Board determined that upon considerationsince December 2019. Since July 2022, he has served as the Chief Legal Officer and Corporate Secretary of all relevant information,Medifast, Inc. (NYSE: MED), a publicly-held leading manufacturer and distributor of clinically-proven, healthy-living products and programs. After joining Medifast in 2009, Mr. Groves has held several executive management positions, most recently serving as Executive Vice President and General Counsel of Medifast, Inc. from 2011 to July 2022. Mr. Groves was a Medifast, Inc. director from 2009 to 2015, serving on the Dong-A Transactions wereAudit Committee from 2009 to 2011. Prior to joining Medifast, Mr. Groves was Assistant Vice President of Government Affairs for Verizon Maryland, where he was responsible for the company’s legislative policy and government affairs. A United States Army veteran, Mr. Groves was a direct-commissioned Judge Advocate in the best interestsUnited States Army Judge Advocate General’s (JAG) Corps. As a JAG officer, he practiced law and had the distinction of prosecuting criminal cases in the District Court of Maryland as a Special Assistant United States Attorney. Over the course of three years, he received two Army Achievement Medals and one Army Commendation Medal. Mr. Groves completed nine years with the Anne Arundel Medical Center Board of Trustees, chairing their international captive insurance company board for eight years. Mr. Groves received his Bachelor of Science degree, cum laude, in Hospitality Management from Bethune-Cookman University, and obtained his Juris Doctor from North Carolina Central University School of Law. The Board believes that Mr. Grove’s experience serving as an independent director, audit committee member, and chief legal officer of a large public corporation while assisting with the initial international introduction of such corporation’s products qualify him to serve as a director.
Mr. Michael Salsbury has served a member of the CompanyBoard since December 2019. He has served as Counsel to Current Health Inc., a provider of remote care management products and its stockholders.services, since May 2021. Current Health was acquired by Best Buy Co., Inc. (BBY) in November 2021. From September 2017 to May 2022, Mr. Salsbury has served as Counsel to Verisma Systems, Inc., a provider of cloud-based automated disclosure management systems; and from February 2013 to July 2017, he served as Secretary and General Counsel to Best Doctors, Inc., a provider of expert medical opinions. Best Doctors was acquired by Teladoc Health, Inc. (TDOC) in July 2017. Mr. Salsbury has more than 25 years’ experience as a senior executive with public and private companies and private law practice. Mr. Salsbury received a J.D. and M.B.A. from University of Virginia and a B.A. from Dartmouth College. The Board believes that Mr. Salsbury’s legal expertise and his experience serving as general counsel and secretary of a Fortune 100 corporation qualifies him to serve as a director.
Support Agreements
In connection with the executionMr. Mark Glickman has served as a member of the Dong-A Agreements, we and Dong-A entered into stockholder support agreements (the “Support Agreements”) withBoard since May 2023. He served as the E&H Funds and Dr. Roy Freeman. The Support Agreements provide that, among other things, eachCo-Chief Executive officer for TherapeuticsMD, Inc. (NASDAQ: TXMD) from 2022 through the sale of the stockholders has agreedassets of TXMD to vote or causeMayne Therapeutics in January 2023. Prior to be voted allthis role, Mr. Glickman served as Chief Business Officer, Commercial of TherapeuticsMD, Inc. since June 2021. Previously, Mr. Glickman served as the Chief Commercial Officer for Esperion Therapeutics, Inc. (NASDAQ: ESPR) from 2018 until December 2020, where he developed and led the commercial division in the launch of the sharescompany’s first cardiovascular prescription therapy. From June 2015 to March 2018, Mr. Glickman served as the Chief Commercial Officer for Aralez Pharmaceuticals, where he built out and lead the first commercial effort for a previously clinical organization. Prior to June 2015, Mr. Glickman was Executive Vice President of Common Stock owned by such stockholder (i) in favor of Proposals 1, 3Sales and 4; (ii) in favor of any other matter reasonably necessary to the approval of the issuance of the common stock issued or to be issued under the License Agreement and the Securities Purchase Agreement and considered and voted upon by the stockholders of NeuroBo in connection therewith; and (iii) to approve any proposal to adjourn or postpone any such meeting toMarketing for Auxilium (Endo), where he led all commercial efforts for a later date, if there are not sufficient votes present or represented at such meeting to approve Proposal 1, Proposal 3 or Proposal 4. As of the Record Date, stockholders holding an aggregate of approximately 28% of our outstanding shares have entered into Support Agreements and Dong-A currently holds 10.6% of our outstanding shares and has agreed to vote in favor of Proposal 1, Proposal 3 and Proposal 4.
No Appraisal Rights
Under Delaware law, stockholders are not entitled to appraisal rights with respect to this proposal and the Company will not independently provide stockholders with any such rights.
Vote Required
Approval of Proposal 1 requires the affirmative vote of holders of a majority of shares present in person, by remote communication, if applicable, or represented by proxy at the Special Meeting and entitled to vote at the Special Meeting. Abstentions will have the same effect as votes “against” Proposal 1.
Recommendation
Unless marked otherwise, proxies received will be voted “FOR” the approval of Proposal 1.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” PROPOSAL 1.
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PROPOSAL 2 – APPROVAL OF THE ISSUANCE OF SHARES OF OUR COMMON STOCK
portfolio of thirteen pharmaceutical products. Mr. Glickman's previous positions include Senior Vice President of Sales and Marketing and Vice President of Medical Devices for Otsuka America Pharmaceuticals Inc. and Marketing Head, Regional Sales Director and Vice President of Sales and Operations at Kos Pharmaceuticals (Abbott Labs), where he expanded his skills in the commercial products area. Mr. Glickman received a Bachelor of Arts degree in Political Science from S.U.N.Y Oswego, and a Master of Business Administration in Finance and International Management from the N.Y.U. Stern School of Business. The Board believes that Mr. Glickman’s 30 years of experience in the pharmaceutical and medical device industry qualifies him to serve as a director.
UPON EXERCISE OF WARRANTS ISSUED TO INVESTORS IN OUR UNDERWRITTEN
OFFERING PURSUANT TO NASDAQ LISTING RULE 5635(D) AND NASDAQ’S
INTERPRETATION AND GUIDANCE THEREUNDER.
General
WeThere are asking stockholders to approve the issuance of sharesno familial relationships among any of our common stock upondirectors, director nominees and executive officers.
Non-Employee Director Compensation
Our non-employee directors receive a mix of cash and share-based compensation intended to encourage non-employee directors to continue to serve on the exerciseBoard, further align the interests of their Series A Warrantsthe directors and Series B Warrants issued in our November 2022 underwritten public offering, which was completed on November 8, 2022, as contemplated by Nasdaq Listing Rule 5635, as described in more detail below.
On November 4, 2022, we entered into an Underwriting Agreement (the “Underwriting Agreement”)stockholders, and attract new non-employee directors with Ladenburg Thalmann & Co. Inc. (the “Underwriter”), pursuant to whichoutstanding qualifications. Directors who are employees or officers of the Company issued and sold, in an underwritten public offering bydo not receive any additional compensation for Board service.
The following table provides compensation information for the Company (the “Public Offering”), (a) 2,397,003 Class A Units (the “Class A Units”), withfiscal year ended December 31, 2022 for each Class A Unit consisting of (i) one share of common stock, (ii) one warrant to purchase one share of common stock exercisable following approval of our stockholders (each, a “Series A Warrant”) and (iii) one warrant to purchase one share of common stock exercisable following approvalnon-employee member of the Company’s stockholders, with each Class A Unit offered to the public at an offering price of $3.00 per Class A Unit and (b) 2,602,997 Class B Units (the “Class B Units”, and collectively with the Class A Units, the “Units”), with each Class B Unit consisting of (i) one share of the Company’s Series B Convertible Preferred Stock, par value $0.001 per share (the “Series B Preferred Stock”), convertible into one share of common stock, (ii) one Series A Warrant and (iii) one Series B Warrant, with each Class B Unit offered to the public at an offering price of $3.00 per Class B Unit (the Class A Warrants and Class B Warrants issued as part of the Class A Units and the Class B Units are referred to herein as the “Public Offering Warrants”).Board.
Name
​​
Fees Earned or
Paid in Cash
($)
​​
Option
Awards
($)(5)
​​
Total
($)
Ms. Na Yeon (Irene) Kim
​​
45,784
​​
6,663
​​
52,447
Jason Groves
​​
134,131
​​
6,663
​​
140,794
Michael Salsbury
​​
136,989
​​
6,663
​​
143,652
Andrew Koven
​​
200,267
​​
6,663
​​
206,930
D. Gordon Strickland(1)(4)
​​
123,539
​​
34,574
​​
158,113
Richard Kang(2)
​​
38,556
​​
6,663
​​
45,219
Hyung Heon Kim
​​
54,217
​​
6,663
​​
60,880
Douglas Swirsky(3)
​​
3,611
​​
—
​​
3,611
Mark A. Glickman(7)
​​
—
​​
—
​​
—
In addition, pursuant to the Underwriting Agreement, we granted the Underwriter a 45 day option (the “Overallotment Option”) to purchase up to (i) 750,000 additional shares of common stock and (ii) additional Warrants to purchase up to 1,500,000 additional shares of Common Stock, solely to cover over-allotments. The Overallotment Option was exercised in full on November 7, 2022.
On November 8, 2022, the Public Offering closed, and we issued and sold (i) 3,147,003 shares of common stock (which includes 750,000 shares of common stock sold pursuant to the exercise of the overallotment option), (ii) 2,602,997 shares of Series B Preferred Stock, and (iii) Public Offering Warrants to purchase 11,500,000 shares of common stock (which includes Public Offering Warrants to purchase 1,500,000 shares of common stock sold pursuant to the exercise of the Overallotment Option), pursuant to a Registration Statement on Form S-1 (File No.: 333-267482) and the Underwriting Agreement. The net proceeds to us, after deducting the underwriting discounts and commissions and estimated offering expenses payable by us, are expected to be approximately $15.1 million.
Description of Warrants
Under Nasdaq listing rules, the Series A Warrants and the Series B Warrants are not exercisable without stockholder approval (“Warrant Stockholder Approval”). Pursuant to the terms of the Underwriting Agreement, we agreed promptly seek, after the closing of the Public Offering, stockholder approval for issuances of shares of common stock issuable upon exercise of the Series A Warrants and the Series B Warrants.
Series A Warrants
Duration and Exercise Price.
Each Series A Warrant has an initial exercise price per share equal to $3.00. The Series A Warrant will be exercisable upon the Warrant Stockholder Approval and will expire on the first anniversary of the initial exercise date. The exercise price and number of shares of common stock issuable upon exercise is subject to appropriate adjustment in the event of stock dividends, stock splits, reorganizations or similar events affecting our shares of common stock and the exercise price. Pursuant to a warrant agency agreement between us and American Stock Transfer & Trust Company, as warrant agent, the Series A Warrants will be issued in book-entry form and shall initially be represented only by one or more global warrants deposited with the warrant agent, as custodian on behalf of the DTC, and registered in the name of Cede & Co., a nominee of DTC, or as otherwise directed by DTC.
(1)
Mr. Strickland was appointed to the Board effective January 27, 2022.
(2)
Dr. Kang resigned from the Board effective March 29, 2023.
(3)
Mr. Swirsky resigned from the Board effective January 14, 2022.
(4)
Mr. Strickland was granted an option to purchase 1,333 shares of Common Stock at an exercise price of $30.60 in January 2022. Each option vests, subject to continuing service, in 36 monthly installments beginning February 28, 2022. The amount reported reflects the aggregate grant date fair value of the option granted to Mr. Strickland during the fiscal year ended December 31, 2022, as computed in accordance with ASC 718. The assumptions used in valuing options are described in Note 8 to the Company’s audited financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
(5)
All current board members were granted an option to purchase 666 shares of Common Stock at an exercise price of $14.18 per share in June 2022. Each option vests, subject to continuing service in June 2023. The amount reported reflects the aggregate grant date fair value of the options granted during the fiscal year ended December 31, 2022, as computed in accordance with ASC 718. The assumptions used in valuing options are described in Note 8 to the Company’s audited financial statements included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2022.
(6)
As of December 31, 2022, Ms. Kim, Mr. Groves, Mr. Salsbury and Mr. Koven have options to purchase 2,666 shares of Common Stock outstanding, Mr. Strickland has options to purchase 1,999 shares of Common Stock outstanding, and Mr. Kim and Dr. Kang have options to purchase 666 shares of Common Stock outstanding.
(7)
Mr. Glickman was appointed to the Board on May 11, 2023.
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Exercisability.
The SeriesIn January 2022, the compensation committee recommended and the Board approved the Company’s Amended and Restated Non-Employee Director Compensation Policy (the “Amended Non-Employee Director Compensation Policy”). Under the Amended Non-Employee Director Compensation Policy, all of our non-employee directors receive an annual cash retainer of $40,000 for Board service except for the Chair of the Board who receives an annual cash retainer of $75,000. A Warrantslead independent director, if applicable, would receive a total of $60,000. In addition, directors receive an additional cash retainer for serving as a committee chair or member as follows:
 
​​
Audit
Committee
​​
Compensation
Committee
​​
Nominating and Corporate
Governance Committee
Committee Chair
​​
$18,000
​​
$12,000
​​
$8,000
Committee Member (other than the Chair)
​​
9,000
​​
6,000
​​
4,000
In addition, non-employee directors are not exercisable withoutentitled to an initial grant for a nonstatutory stock option to acquire 40,000 shares of the Warrant Stockholder Approval. PursuantCommon Stock pursuant to the terms and conditions of the Underwriting Agreement, we agreedCompany’s 2022 Equity Incentive Plan (the “Plan”), which will vest in a series of three successive equal annual installments over the three-year period measured from the date of grant, subject to seek promptly,the director’s service to the Company through each applicable vesting date. In accordance with the Amended Non-Employee Director Compensation Policy, each non-employee director will also be eligible to be granted, immediately following the Company’s annual meeting of stockholders, a nonstatutory stock option to purchase 20,000 shares of Common Stock (the “Annual Grant”). Each Annual Grant will vest upon the earlier of the one (1) year anniversary of the grant date or the day prior to the Company’s next annual meeting occurring after the closinggrant date, subject to such non-employee director’s service to the Company through the vesting date. Vesting will be accelerated upon a Corporate Transaction (as defined in the Plan). The nonstatutory stock options are subject to the terms and conditions of the Public Offering, stockholder approval for issuances of shares of commonPlan and its related agreements. Additionally, pursuant to the Amended Non-Employee Director Compensation Policy, non-employee directors may elect to receive a restricted stock issuable upon exerciseunit award in lieu of the Series A Warrantscash compensation payable.
The Compensation Committee is currently reviewing the compensation terms set forth in the Amended Non-Employee Director Compensation Policy with an outside compensation advisory firm. As a result, notwithstanding the terms and conditions of the Series B Warrants. The Series A WarrantsAmended Non-Employee Director Compensation Policy, Mr. Glickman was issued an initial grant upon his appointment and in lieu of such grant will be exercisable, atissued the option ofequity consideration contemplated by the holder, in whole or in part, by delivering to us a duly executed exercise notice accompanied by payment in full for the number of shares of common stock purchased upon such exercise (except in the case of a cashless exercise, as discussed below). A holder (together with its affiliates) may not exercise any portion of the Series A Warrantrevisions to the extent thatAmended Non-Employee Director Compensation Policy as modified by the holder would own more than 4.99% (or, atBoard.
Under the electionCompany’s prior Non-Employee Director Compensation Policy, which was in effect prior to the amendment in January 2022, director compensation was as follows:
Annual cash compensation of the holder, 9.99%) of the outstanding shares of common stock immediately after exercise. However, upon notice from the holder to us, the holder may decrease or increase the holder’s beneficial ownership limitation, which may not exceed 9.99%$20,000 per year;
$20,000 per year for service on a committee, irrespective of the number of outstandingcommittees;
$35,000 additional per year of service for the Chair of the Board;
$20,000 additional per year for service for each of the Chair of the nominating and corporate governance committee and the compensation committee; and
$40,000 per year additional for service for the Chair of the audit committee; and
An option to purchase 60,000 shares of common stock immediately after giving effectCommon Stock, vested monthly over 36 months upon election as a director.
In September 2021, the Board formed a transaction committee of the Board consisting of 4 members of the Board to review a licensing transaction presented to the exercise, as such percentage ownership is determined in accordance withBoard. Pursuant to the termsauthorizing resolution, the Board approved the following compensation for the members of the Series A Warrants, provided that any increaseBoard serving on such transaction committee: a monthly fee in the beneficial ownership limitation will not take effect until 61 days following notice to us. Holders were able to elect, prior toamount of $5,000 per month for members and $7,500 per month for the issuancechair (for each calendar month or portion thereof that such member serves on the transaction committee) and $800 per meeting of the Series A Warrants, to have the initial exercise limitation set at 9.99% of our outstanding shares of common stock. No fractional shares will be issued in connection with the exercise of a Series A Warrant. In lieu of fractional shares, we will either pay the holder an amount in cash equal to the fractional amount multipliedtransaction committee attended by the exercise price or round down to the next whole share.
Cashless Exercise.
If, at the time a holder exercises its Series A Warrants, a registration statement registering the issuance of the shares of common stock underlying the Series A Warrants under the Securities Act is not then effective or available and an exemption from registration under the Securities Act is not available for the issuance of such shares, then in lieu of making the cash payment otherwise contemplated to be made to us upon such exercise in payment of the aggregate exercise price, the holder may elect instead to receive upon such exercise (either in whole or in part) the net number of shares of common stock determined according to a formula set forth in the Series A Warrants.
Additionally, holders of Series A Warrants may exercise such Series A Warrants on a “cashless” basis after the initial exercise date. In such event, the aggregate number of shares of common stock issuable in such cashless exercise shall equal the product of (x) the aggregate number of shares of common stock that would be issuable upon exercise of the Series A Warrants in accordance with their terms if such exercise were by means of a cash exercise rather than a cashless exercise and (y) 1.00.
Transferability.
Subject to applicable laws, a Series A Warrant may be transferred at the option of the holder upon surrender of the Series A Warrant to us together with the appropriate instruments of transfer.
Exchange Listing.
There is no trading market available for the Series A Warrants on any securities exchange or nationally recognized trading system. The Series A Warrants are not, and we do not anticipate that we will, on any securities exchange or nationally recognized trading system.
Right as a Stockholder.
Except as otherwise provided in the Series A Warrants or by virtue of such holder’s ownership of our shares of common stock, the holders of the Series A Warrants do not have the rights or privileges of holders of our shares of common stock, including any voting rights, until they exercise their Series A Warrants, subject to the Warrant Stockholder Approval.
Fundamental Transaction.
In the event of a fundamental transaction, as described in the Series A Warrants and generally including any reorganization, recapitalization or reclassification of our shares of common stock, the sale, transfer or other disposition of all or substantially all of our properties or assets, our consolidation or merger with or into another person, the acquisition of more than 50% of our outstanding shares of common stock, or any person or group becoming the beneficial owner of more than 50% of the voting power represented by our outstanding shares of
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common stock, the holders of the Series A Warrants will be entitled to receive upon exercise of the Series A Warrants the kind and amount of securities, cash or other property that the holders would have received had they exercised the Series A Warrants immediately prior to such fundamental transaction. Additionally, as more fully described in the Series A Warrant, in the event of certain fundamental transactions, the holders of the Series A Warrants will be entitled to receive consideration in an amount equal to the Black-Scholes value of the Series A Warrants on the date of consummation of the transaction.
Call Feature.
The Series A Warrants are callable by us in certain circumstances. Subject to certain exceptions, in the event that the Series A Warrants are outstanding, if, after the closing date, (i) the volume weighted average price of our common stock for any 20 consecutive trading days, which Measurement Period will commence no sooner than the date the Stockholder Approval is obtained, exceeds 300% of the exercise price (subject to adjustment for forward and reverse stock splits, recapitalizations, stock dividends and similar transactions after the initial exercise date), (ii) the average daily trading volume for such Measurement Period exceeds $500,000 per trading day, and (iii) the Series A Warrant holder is not in possession of any information that constitutes or might constitute, material non-public information which was provided by the Company, and subject to the applicable beneficial ownership limitation, then we may, within one trading day of the end of such Measurement Period, upon notice (a “Call Notice”), call for cancellation of all or any portion of the Series A Warrants for which a notice of exercise has not yet been delivered (a “Call”) for consideration equal to $0.001 per Series A Warrant share. Any portion of a Series A Warrant subject to such Call Notice for which a notice of exercise shall not have been received by the Call Date (as hereinafter defined) will be canceled at 6:30 p.m. (New York City time) on the tenth trading day after the date the Call Notice is sent by the Company (such date and time, the “Call Date”). Our right to call the Series A Warrants shall be exercised ratably among the holders based on the then outstanding Series A Warrants.
Series B Warrants
Each Series B Warrant offered hereby will have an initial exercise price per share equal to $3.00. The Series B Warrants will be exercisable upon the Warrant Stockholder Approval and will expire on the fifth anniversary of their initial exercise date.
The terms of the Series B Warrants are otherwise identical to those of the Series A Warrants.
The foregoing description of the Public Offering Warrants, which would become exercisable upon approval of this Proposal 2, is a summary and is qualified in its entirety by reference to the provisions of the Form of Public Offering Warrants, which were included as Exhibits 4.1 and 4.2 to our Current Report on Form 8-K filed on November 8, 2022.
Reasons for Seeking Stockholder Approval
Nasdaq Listing Rule 5635(d)
Nasdaq Listing Rule 5635(d) requires stockholder approval in connection with a transaction other than a public offering involving the sale, issuance, or potential issuance by the issuer of common stock (or securities convertible into or exercisable for common stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for a price that is less than the lower of: (i) the closing price (as reflected on Nasdaq.com) immediately preceding the signing of the binding agreement; or (ii) the average closing price of the common stock (as reflected on Nasdaq.com) for the five trading days immediately preceding the signing of the binding agreement.
If the holders of Public Offering Warrants were to receive common stock upon exercise of the Public Offering Warrants, under interpretations of Nasdaq rules, the Public Offering would be considered a private offering for purposes of the Nasdaq rules and since the issuance of shares in the Public Offering would be greater than 20% or more of the common stock outstanding, or 20% or more of the voting power of our company at a lower price than the prices described above and, therefore, we are seeking stockholder approval of the issuance of the underlying common stock.
Consequences of Not Approving this Proposal
If we do not obtain the Warrant Stockholder Approval, the holders of Series A Warrants and Series B Warrants will not be able to exercise their Series A Warrants and Series B Warrants for shares of our common stock. The failure of our stockholders to approve this Proposal 2 will mean that we may incur substantial costs and expenses. In
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connection with the Public Offering and the issuance of Series A Warrants and Series B Warrants, we agreed to seek stockholder approval every 30 days until our stockholders approve the issuance of the shares underlying the Series A Warrants and Series B Warrants. We are required to seek such approval until such time as none of the Public Offering Warrants are outstanding which could result in us seeking such approval every 30 days. The costs and expenses associated with seeking such approval could adversely impact our ability to fund our operations and advance the clinical trials and related product development activities for our product candidates.
Consequences of Approving the Proposal
If our stockholders approve this Proposal 2, existing stockholders may suffer dilution in their ownership interests in the future as a result of the potential issuance of common stock upon exercise of the Series A Warrants and Series B Warrants. Assuming full exercise of the Series A Warrants and Series B Warrants, an aggregate of 11,500,000 additional shares of common stock will be outstanding and the ownership interest of our existing stockholders would be correspondingly reduced. The number of shares of common stock described above does not give effect to (i) the issuance of shares of common stock pursuant to other outstanding options and warrants or (ii) any other future issuances of our common stock. The sale into the public market of these shares also could materially and adversely affect the market price of our common stock.
Interests of Directors and Executive Officers
None of our directors and executive officers have substantial interests, directly or indirectly, in the matters set forth in this Proposal 2 except to the extent of their ownership of shares of our common stock and common stock underlying other convertible securities.
Support Agreements
We have entered into voting agreements with certain stockholders who hold an aggregate of approximately 38% of our outstanding shares of common stock whereby each such stockholder will agree to vote its shares in favor of the issuance of shares of common stock issuable upon exercise of the Series A Warrants and Series B Warrants and any other stockholder approvals recommended by our Board in connection with the Public Offering.
Vote Required
Approval of Proposal 2 requires the requires the affirmative vote of holders of a majority of shares present in person, by remote communication, if applicable, or represented by proxy at the Special Meeting and entitled to vote at the Special Meeting. Abstentions will have the same effect as votes “against” Proposal 2.
Recommendation
Unless marked otherwise, proxies received will be voted “FOR” the approval of Proposal 2.member.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOUA VOTE “FORFOR”” PROPOSAL 2. THE ELECTION OF EACH OF THE
NOMINATED CLASS I DIRECTORS.
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PROPOSAL 3 – APPROVAL OF THE NEUROBO PHARMACEUTICALS, INC.
2022 EQUITY INCENTIVE PLAN
Our stockholders are being asked to approve the NeuroBo Pharmaceuticals, Inc. 2022 Equity Incentive Plan (the “2022 Plan”).
Our Board believes that it is in the best interest of us and our stockholders for the Company to be in a position to offer equity awards to executive officers, key employees, outside directors, consultants and advisors in accordance with the terms of the 2022 Plan. We have relied upon and anticipate continuing to rely upon the equity incentive program to a disproportionate degree in lieu of cash compensation to our executive officers. We intend to recruit additional employees and consultants and retain our existing employees and consultants in connection with the development of the assets licensed from Dong-A, as described above, and the equity available under the Company’s existing incentive plans is not sufficient to support the equity compensation of such consultants and employees. This provides our Board with the discretion to pay a portion of annual bonus payments in the form of equity versus cash. Our Board believes that the structure of these agreements benefits stockholders by providing additional incentive to the executives regarding value creation. The life sciences market is highly competitive, and our results are largely attributable to the talents, expertise, efforts and dedication of our employees and consultants. Our compensation program, including the granting of equity compensation, is a crucial way to attract and recruit new employees and consultants and retain existing employees and consultants, with equity compensation serving as our primary recruitment, retention and motivational tool as opposed to cash compensation.
We are often competing for highly-skilled talent with many companies that offer aggressive equity compensation to their executive and key professional positions, with many of our competitors having evergreen plans that allow automatic replenishment of the equity share pool on an annual basis. We do not currently have enough shares in the 2019 Equity Incentive Plan (the “2019 Plan”) and the 2021 Inducement Plan (the “Inducement Plan”) to assist with recruitment and retention of the necessary talent and the evergreen provision in our 2019 Plan does not provide for a sufficient annual increase of new shares to grant. We are therefore requesting stockholder approval for a larger share pool together with an evergreen provision to provide for annual increases in the share pool that will accommodate future equity awards needed to achieve our recruiting and retention goals. Our approval of the new 2022 Plan, with a greater total share pool and evergreen provision, is intended to enable us to position our pay at a competitive opportunity level, while reducing emphasis on cash compensation.
The full text of the proposed 2022 Plan is set forth on Appendix A to this proxy statement.
Requested Shares
Subject to adjustment for certain changes in our capitalization, if this Proposal 3 is approved by our stockholders, the aggregate number of shares of our common stock that may be issued under the 2022 Plan will not exceed the sum of (1) 4,910,073, (2) the number of shares of our common stock available for grant of new awards under the 2019 Plan and (3) any shares subject to outstanding stock awards under the 2019 Plan that are forfeited or otherwise returned to the share reserve. In addition, the number of shares of common stock reserved for issuance under the 2022 Plan would automatically increase on January 1 of each calendar year, starting on January 1, 2023 through January 1, 2027, to an amount equal to (i) 5% of the fully diluted number of shares of common stock outstanding on December 31 of the fiscal year before the date of each automatic increase, or (ii) a lesser number of shares determined by our Board prior to the date of the increase.
At November 8, 2022, equity awards covering an aggregate of 36,493 shares were outstanding under the 2019 Plan and the Inducement Plan.
The following table provides certain additional information regarding our equity incentive program.
​​
As of November 11,
2022
Total number of shares of common stock subject to outstanding stock options
​​
36,493
Weighted-average exercise price of outstanding stock options
​​
$99.62
Weighted-average remaining term of outstanding stock options
​​
8.7
Total number of shares of common stock available for grant under the 2019 Plan
​​
167,748
Total number of shares of common stock available for grant under the Inducement Plan
​​
12,778
Total number of shares of common stock outstanding
​​
6,503,528
Per-share closing price of common stock as reported on Nasdaq Capital Market
​​
$1.37
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We are committed to using the shares available under the 2022 Plan prudently to advance the Company’s interests.
We continue to believe that equity awards such as stock options and other types of stock awards are a vital part of our overall compensation program. Our compensation philosophy reflects broad-based eligibility for equity incentive awards, and we grant awards to substantially all of our employees. However, we recognize that equity awards dilute existing stockholders, and, therefore, we must responsibly manage our use of equity compensation.
We are committed to effectively monitoring our equity compensation share reserve, including our burn rate, to ensure that we maximize stockholders’ value by granting the appropriate number of equity incentive awards necessary to attract, reward, and retain employees.
Summary of the 2022 Plan
The material features of the 2022 Plan are described below. The following description of the 2022 Plan is a summary only and is qualified in its entirety by reference to the complete text of the 2022 Plan. Stockholders are urged to read the actual text of the 2022 Plan in its entirety, which is attached to this proxy statement as Appendix A. If our stockholders approve the 2022 Plan, a registration statement on Form S-8 covering the shares in the share reserve of the 2022 Plan will be filed with the SEC.
Awards
The 2022 Plan provides for the grant of incentive stock options (“ISOs”), nonstatutory stock options (“NSOs”), stock appreciation rights, restricted stock awards, restricted stock unit awards, performance awards and other forms of awards to employees, directors and consultants, including employees and consultants of the Company’s affiliates.
Authorized Shares
Initially, the maximum number of shares of common stock that may be issued under the 2022 Plan after it becomes effective will not exceed (1) 4,910,073, (2) the number of shares of our common stock available for grant of new awards under the 2019 Plan and (3) any shares subject to outstanding stock awards under the 2019 Plan that are forfeited or otherwise returned to the share reserve. In addition, the number of shares of common stock reserved for issuance under the 2022 Plan would automatically increase on January 1 of each calendar year, starting on January 1, 2023 through January 1, 2027, to an amount equal to (i) 5% of the fully diluted number of shares of common stock outstanding on December 31 of the fiscal year before the date of each automatic increase, or (ii) a lesser number of shares determined by our Board prior to the date of the increase. The maximum number of shares of common stock that may be issued on the exercise of ISOs under the 2022 Plan is 15,000,000.
Shares subject to stock awards granted under the 2022 Plan that expire or terminate without being exercised in full or that are paid out in cash rather than in shares do not reduce the number of shares available for issuance under the 2022 Plan. If any shares of common stock issued pursuant to a stock award are forfeited back to or repurchased or reacquired by the Company (1) because of a failure to meet a contingency or condition required for the vesting of such shares; (2) to satisfy the exercise, strike or purchase price of an award; or (3) to satisfy a tax withholding obligation in connection with an award, the shares that are forfeited or repurchased or reacquired will revert to and again become available for issuance under the 2022 Plan.
Plan Administration
Our Board, or a duly authorized committee of our Board, will administer the 2022 Plan and is referred to as the “plan administrator”. Our Board has determined that the Compensation Committee will be the plan administrator. The plan administrator may also delegate to one or more of the Company’s officers the authority to: (1) designate employees (other than officers) to receive specified stock awards; and (2) determine the number of shares subject to such stock awards. Under the 2022 Plan, the plan administrator has the authority to determine award recipients, grant dates, the numbers and types of stock awards to be granted, the applicable fair market value, and the provisions of each stock award, including the period of exercisability and the vesting schedule applicable to a stock award.
Under the 2022 Plan, the plan administrator also generally has the authority to effect, with the consent of any materially adversely affected participant, (A) the reduction of the exercise, purchase, or strike price of any outstanding option or stock appreciation right; (B) the cancellation of any outstanding option or stock appreciation right and the grant in substitution therefore of other awards, cash, or other consideration; or (C) any other action that is treated as a repricing under U.S. GAAP.
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Eligibility and Participation
All current and prospective eligible employees and consultants and all current non-employee directors are eligible to be granted non-qualified stock options, restricted stock awards and other stock-based awards under the 2022 Plan. As of November 8, 2022, we have six non-employee directors, one executive officer, one employee and two other consultants eligible to receive awards under the 2022 Plan. Only employees of ours and our subsidiaries are eligible to be granted incentive stock options (sometimes referred to as “ISO” or “ISOs”), under the 2022 Plan. Eligibility for awards under the 2022 Plan is determined by the plan administrator in its sole discretion.
Types of Awards
Stock Options. ISOs and NSOs are granted under stock option agreements adopted by the plan administrator. The plan administrator determines the exercise price for stock options, within the terms and conditions of the 2022 Plan; provided that the exercise price of a stock option generally cannot be less than 100% of the fair market value of common stock on the date of grant. Options granted under the 2022 Plan vest at the rate specified in the stock option agreement as determined by the plan administrator.
The plan administrator determines the term of stock options granted under the 2022 Plan, up to a maximum of 10 years. Unless the terms of an optionholder’s stock option agreement provide otherwise, if an optionholder’s service relationship with the Company or any of its affiliates ceases for any reason other than disability, death, or cause, the optionholder may generally exercise any vested options for a period of three months following the cessation of service. This period may be extended in the event that exercise of the option is prohibited by applicable securities laws. If an optionholder’s service relationship with us or any of our affiliates ceases due to death, or an optionholder dies within a certain period following cessation of service, the optionholder or a beneficiary may generally exercise any vested options for a period of 18 months following the date of death. If an optionholder’s service relationship with us or any of our affiliates ceases due to disability, the optionholder may generally exercise any vested options for a period of 12 months following the cessation of service. In the event of a termination for cause, options generally terminate upon the termination date. In no event may an option be exercised beyond the expiration of its term.
Acceptable consideration for the purchase of common stock issued upon the exercise of a stock option will be determined by the plan administrator and may include: (1) cash, check, bank draft or money order; (2) a broker-assisted cashless exercise; (3) the tender of shares of common stock previously owned by the optionholder; (4) a net exercise of the option if it is an NSO; or (5) other legal consideration approved by the plan administrator. Unless the plan administrator provides otherwise, options or stock appreciation rights generally are not transferable except by will or the laws of descent and distribution. Subject to approval of the plan administrator or a duly authorized officer, an option may be transferred pursuant to a domestic relations order, official marital settlement agreement, or other divorce or separation instrument.
Tax Limitations on ISOs. The aggregate fair market value, determined at the time of grant, of common stock with respect to ISOs that are exercisable for the first time by an award holder during any calendar year under all of our stock plans may not exceed $100,000. Options or portions thereof that exceed such limit will generally be treated as NSOs. No ISO may be granted to any person who, at the time of the grant, owns or is deemed to own stock possessing more than 10% of the Company’s total combined voting power or that of any of its parent or subsidiary corporations unless: (1) the option exercise price is at least 110% of the fair market value of the stock subject to the option on the date of grant; and (2) the term of the ISO does not exceed five years from the date of grant.
Restricted Stock Unit Awards. Restricted stock unit awards are granted under restricted stock unit award agreements adopted by the plan administrator. Restricted stock unit awards may be granted in consideration for any form of legal consideration that may be acceptable to our Board and permissible under applicable law. A restricted stock unit award may be settled by cash, delivery of stock, a combination of cash and stock as deemed appropriate by the plan administrator, or in any other form of consideration set forth in the restricted stock unit award agreement. Additionally, dividend equivalents may be credited in respect of shares covered by a restricted stock unit award. Except as otherwise provided in the applicable award agreement, restricted stock unit awards that have not vested will be forfeited once the participant’s continuous service ends for any reason.
Restricted Stock Awards. Restricted stock awards are granted under restricted stock award agreements adopted by the plan administrator. A restricted stock award may be awarded in consideration for cash, check, bank draft or money order, past or future services to us, or any other form of legal consideration that may be acceptable to our Board and permissible under applicable law. The plan administrator determines the terms and conditions of restricted stock awards, including vesting and forfeiture terms. If a participant’s service relationship with the Company ends
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for any reason, it may receive any or all of the shares of common stock held by the participant that have not vested as of the date the participant terminates service with us through a forfeiture condition or a repurchase right.
Stock Appreciation Rights. Stock appreciation rights are granted under stock appreciation right agreements adopted by the plan administrator. The plan administrator determines the purchase price or strike price for a stock appreciation right, which generally cannot be less than 100% of the fair market value of common stock on the date of grant. A stock appreciation right granted under the 2022 Plan vests at the rate specified in the stock appreciation right agreement as determined by the plan administrator. Stock appreciation rights may be settled in cash or shares of common stock or in any other form of payment as determined by our Board and specified in the stock appreciation right agreement.
The plan administrator determines the term of stock appreciation rights granted under the 2022 Plan, up to a maximum of 10 years. If a participant’s service relationship with us or any of our affiliates ceases for any reason other than cause, disability, or death, the participant may generally exercise any vested stock appreciation right for a period of three months following the cessation of service. This period may be further extended in the event that exercise of the stock appreciation right following such a termination of service is prohibited by applicable securities laws. If a participant’s service relationship with us, or any of our affiliates, ceases due to disability or death, or a participant dies within a certain period following cessation of service, the participant or a beneficiary may generally exercise any vested stock appreciation right for a period of 12 months in the event of disability and 18 months in the event of death. In the event of a termination for cause, stock appreciation rights generally terminate immediately upon the occurrence of the event giving rise to the termination of the individual for cause. In no event may a stock appreciation right be exercised beyond the expiration of its term.
Performance Awards. The 2022 Plan permits the grant of performance awards that may be settled in stock, cash or other property. Performance awards may be structured so that the stock or cash will be issued or paid only following the achievement of certain pre-established performance goals during a designated performance period. Performance awards that are settled in cash or other property are not required to be valued in whole or in part by reference to, or otherwise based on, the common stock.
The performance goals may be based on any measure of performance selected by our Board. The performance goals may be based on company-wide performance or performance of one or more business units, divisions, affiliates, or business segments, and may be either absolute or relative to the performance of one or more comparable companies or the performance of one or more relevant indices. Unless specified otherwise by our Board at the time the performance award is granted, the Board will appropriately make adjustments in the method of calculating the attainment of performance goals as follows: (i) to exclude restructuring charges; (ii) to exclude exchange rate effects; (iii) to exclude the effects of changes to generally accepted accounting principles; (iv) to exclude the effects of any statutory adjustments to corporate tax rates; (v) to exclude the effects of items that are “unusual” in nature or occur “infrequently” as determined under U.S. GAAP; (vi) to exclude the dilutive effects of acquisitions or joint ventures; (vii) to assume that any portion of the Company’s business which is divested achieved performance objectives at targeted levels during the balance of a performance period following such divestiture; (viii) to exclude the effect of any change in the outstanding shares of common stock by reason of any stock dividend or split, stock repurchase, reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change, or any distributions to common stockholders other than regular cash dividends; (ix) to exclude the effects of stock based compensation and the award of bonuses under the Company’s bonus plans; (x) to exclude costs incurred in connection with potential acquisitions or divestitures that are required to be expensed under U.S. GAAP; and (xi) to exclude the goodwill and intangible asset impairment charges that are required to be recorded under U.S. GAAP.
Other Stock Awards. The plan administrator may grant other awards based in whole or in part by reference to common stock. The plan administrator will set the number of shares under the stock award (or cash equivalent) and all other terms and conditions of such awards.
Non-Employee Director Compensation Limit. The aggregate value of all compensation granted or paid to any non-employee director with respect to any calendar year, including awards granted and cash fees paid by the Company to such non-employee director, will not exceed $750,000 in total value or, in the event such non-employee director is first appointed or elected to the Board during such calendar year, $1,000,000 in total value.
Changes to Capital Structure
In the event there is a specified type of change in our capital structure, such as a stock split, reverse stock split, or recapitalization, appropriate adjustments will be made to: (1) the class and maximum number of shares reserved
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for issuance under the 2022 Plan; (2) the class and maximum number of shares by which the share reserve may increase automatically each year; (3) the class and maximum number of shares that may be issued on the exercise of ISOs; and (4) the class and number of shares and exercise price, strike price, or purchase price, if applicable, of all outstanding stock awards.
Corporate Transactions
The following applies to stock awards under the 2022 Plan in the event of a corporate transaction (as defined in the 2022 Plan), unless otherwise provided in a participant’s stock award agreement or other written agreement with us or one of our affiliates or unless otherwise expressly provided by the plan administrator at the time of grant.
In the event of a corporate transaction, any stock awards outstanding under the 2022 Plan may be assumed, continued or substituted for by any surviving or acquiring corporation (or its parent company), and any reacquisition or repurchase rights held by us with respect to the stock award may be assigned to the successor (or its parent company). If the surviving or acquiring corporation (or its parent company) does not assume, continue or substitute for such stock awards, then (i) with respect to any such stock awards that are held by participants whose continuous service has not terminated prior to the effective time of the corporate transaction, or current participants, the vesting (and exercisability, if applicable) of such stock awards will be accelerated in full to a date prior to the effective time of the corporate transaction (contingent upon the effectiveness of the corporate transaction), and such stock awards will terminate if not exercised (if applicable) at or prior to the effective time of the corporate transaction, and any reacquisition or repurchase rights held by us with respect to such stock awards will lapse (contingent upon the effectiveness of the corporate transaction), and (ii) any such stock awards that are held by persons other than current participants will terminate if not exercised (if applicable) prior to the effective time of the corporate transaction, except that any reacquisition or repurchase rights held by us with respect to such stock awards will not terminate and may continue to be exercised notwithstanding the corporate transaction.
In the event a stock award will terminate if not exercised prior to the effective time of a corporate transaction, the plan administrator may provide, in its sole discretion, that the holder of such stock award may not exercise such stock award but instead will receive a payment equal in value to the excess (if any) of (i) value of the property that Participant would have received upon the exercise of the award, over (ii) any per share exercise price payable by such holder, if applicable. In addition, any escrow, holdback, earn out or similar provisions in the definitive agreement for the corporate transaction may apply to such payment to the same extent and in the same manner as such provisions apply to the holders of common stock.
Change in Control. Awards granted under the 2022 Plan may be subject to acceleration of vesting and exercisability upon or after a change in control (as defined in the 2022 Plan) as may be provided in the applicable stock award agreement or in any other written agreement between us or any affiliate and the participant, but in the absence of such provision, no such acceleration will automatically occur.
Term
Awards under the 2022 Plan may not be made after November 9, 2032, but awards granted prior to such date may extend beyond that date.
The terms of each stock option shall be decided by the plan administrator provided that no stock options shall be exercisable more than ten years after the date such stock option is granted (or in the case of an incentive stock option granted to a 10% stockholder, no more than five years after the date such stock option is granted.)
Amendment and Termination
Subject to the rules referred to in the balance of this paragraph, our Board may, without stockholder approval, at any time amend, in whole or in part, any or all of the provisions of the 2022 Plan, or suspend or terminate it entirely, retroactively or otherwise. Except as required to comply with applicable law, no such amendment may materially reduce the rights of a participant with respect to awards previously granted without the consent of such participant.
United States Federal Income Tax Consequences
The following discussion of the principal U.S. federal income tax consequences with respect to stock options granted under the 2022 Plan is based on statutory authority and judicial and administrative interpretations as of the date of this proxy statement, which are subject to change at any time (possibly with retroactive effect) and may vary
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in individual circumstances. The discussion is limited to the U.S. federal income tax consequences (state, local and other tax consequences are not addressed below) to individuals who are citizens or residents of the U.S., other than those individuals who are taxed on a residence basis in a foreign country. In addition, the following discussion does not set forth any gift, estate, social security or state or local tax consequences that may be applicable.
The U.S. federal income tax law is technical and complex and the discussion below represents only a general summary. The following summary is included for general information only and does not purport to address all the tax considerations that may be relevant. Each recipient of a grant is urged to consult his or her own tax advisor as to the specific tax consequences to such grantee and the disposition of common stock.
Incentive Stock Options. The grant or exercise of an ISO generally has no income tax consequences for the optionee or us. No taxable income results to the optionee upon the grant or exercise of an ISO. However, the amount by which the fair market value of the stock acquired pursuant to the exercise of an ISO exceeds the exercise price is an adjustment item and will be considered income for purposes of alternative minimum tax.
The aggregate fair market value of common stock (determined at the time of grant) with respect to which ISOs can be exercisable for the first time by an optionee during any calendar year cannot exceed $100,000. In such case, the ISOs will be treated as a non-qualified stock option.
The sale of common stock received pursuant to the exercise of an option that satisfied all of the ISO requirements, as well as the holding period requirement described below, will result in a long-term capital gain or loss equal to the difference between the amount realized on the sale and the exercise price. To receive ISO treatment, an optionee must be an employee of the Company (or certain affiliates) at all times during the period beginning on the date of the grant of the ISO and ending on the day three months before the date of exercise, and the optionee must not dispose of the common stock purchased pursuant to the exercise of an option either (i) within two years from the date the ISO was granted, or (ii) within one year from the date of exercise of the ISO. Any gain or loss realized upon a subsequent disposition of the shares of common stock will be treated as a long-term capital gain or loss to the optionee (depending on the applicable holding period). The Company will not be entitled to a tax deduction upon such exercise of an ISO, or upon a subsequent disposition of the shares of common stock, unless such disposition occurs prior to the expiration of the holding period described above.
In general, if the optionee does not satisfy the foregoing holding periods, any gain (in an amount equal to the lesser of the fair market value of the common stock on the date of exercise (or, with respect to officers subject to Section 16(b) of the Exchange Act, the date that sale of such common stock would not create liability, referred to as Section 16(b) liability, under Section 16(b) of the Exchange Act) minus the exercise price, or the amount realized on the disposition minus the exercise price) will constitute ordinary income. In the event of such a disposition before the expiration of the holding periods described above, subject to the limitations under Code Sections 162(m) and 280G, the Company is generally entitled to a deduction at that time equal to the amount of ordinary income recognized by the optionee and any gain in excess of the amount recognized by the optionee as ordinary income would be taxed to the optionee as short-term or long-term capital gain (depending on the applicable holding period).
Non-Qualified Stock Options. In general, an optionee will realize no taxable income upon the grant of an NSO and the Company will not receive a deduction at the time of such grant unless the option has a readily ascertainable fair market value (as determined under applicable tax law) at the time of grant. Upon exercise of an NSO, an optionee generally will recognize ordinary income in an amount equal to the excess of the fair market value of the stock on the date of exercise over the exercise price. Upon a subsequent sale of the stock by the optionee, the optionee will recognize short-term or long-term capital gain or loss depending upon his or her holding period for the stock. Subject to the limitations under Code Sections 162(m) and 280G, the Company will generally be allowed a deduction equal to the amount recognized by the optionee as ordinary income.
Code Section 162(m). Compensation of persons who are “covered employees” of the Company is subject to the tax deduction limits of Section 162(m) of the Code. The exemption from Section 162(m)’s deduction limit for performance-based compensation has been repealed, effective for taxable years beginning after December 31, 2017, such that compensation paid to our covered employees in excess of $1 million will not be deductible unless it qualifies for transition relief applicable to certain arrangements in place as of November 2, 2017.
Parachute Payments. In the event that the payment or vesting of any award under the 2022 Plan is accelerated because of a change in ownership (as defined in Code Section 280G(b)(2)) and such payment of an award, either
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alone or together with any other payments made to certain participants, constitute parachute payments under Code Section 280G, then subject to certain exceptions, a portion of such payments would be nondeductible to the Company and the participant would be subject to a 20% excise tax on such portion of the payment.
Code Section 409A. Code Section 409A provides that all amounts deferred under a nonqualified deferred compensation plan are includible in a participant’s gross income to the extent such amounts are not subject to a substantial risk of forfeiture, unless certain requirements are satisfied. If the requirements are not satisfied, in addition to current income inclusion, interest at the underpayment rate plus 1% will be imposed on the participant’s underpayments that would have occurred had the deferred compensation been includible in gross income for the taxable year in which first deferred or, if later, the first taxable year in which such deferred compensation is not subject to a substantial risk of forfeiture. The amount required to be included in income is also subject to an additional 20% tax. While most awards under the 2022 Plan are anticipated to be exempt from the requirements of Code Section 409A, awards that are not exempt are intended to comply with Code Section 409A.
Securities Authorized for Issuance Under Equity Compensation Plans
The following table sets forth certain information as of December 31, 2021 concerning our equity compensation plans:
Plan category
​​
Number of securities
to be issued upon
exercise of
outstanding options,
warrants and rights
(a)
​​
Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)
​​
Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in
column (a))
(c)
Equity compensation plans approved by security holders
​​
15,938(1)
​​
$149.16
​​
167,748(2)
Equity compensation plans not approved by security holders
​​
20,555(3)
​​
61.20
​​
12,778(4)
Total
​​
36,493
​​
$99.62
​​
189,245
(1)
Consists of outstanding Options under the 2019 Plan.
(2)
Consists of shares of common stock that may be issued pursuant to Options, SARs, restricted stock, RSUs, PSUs and Other Stock-Based Awards under the 2019 Plan.
(3)
Consists of outstanding Options under the Inducement Plan.
(4)
Consists of shares of common stock that may be issued pursuant to Options, SARs, restricted stock, RSUs, PSUs and Other Stock-Based Awards under the Inducement Plan.
New Plan Benefits
Under the 2022 Plan, the terms and number of options or other awards to be granted in the future are to be determined in the discretion of the plan administrator.
Support Agreements
In connection with the execution of the Dong-A Agreements, we and Dong-A entered into the Support Agreements with the E&H Funds and Roy Lester Freeman. Please see Proposal 1 – Support Agreements for additional details regarding the Support Agreement.
Vote Required
Approval of Proposal 3 requires the affirmative vote of holders of a majority of shares present in person, by remote communication, if applicable, or represented by proxy at the Special Meeting and entitled to vote at the Special Meeting. Abstentions will have the same effect as votes “against” Proposal 3.
Unless marked otherwise, proxies received will be voted “FOR” the approval of Proposal 3.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” PROPOSAL 3.
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PROPOSAL 4

ADJOURNMENT OF SPECIAL MEETING
The Proposal
The Board has approved the submission to the stockholders of a proposal to approve one or more adjournments of the Special Meeting in the event that there is not a sufficient number of votes at the Special Meeting to approve Proposal 1, Proposal 2 or Proposal 3. In order to permit proxies that have been timely received to be voted for such adjournments, we are submitting this proposal as a separate matter for your consideration. If it is necessary to adjourn the Special Meeting, the adjournment is for a period of less than 30 days and the record date remains unchanged, no notice of the time and place of the reconvened meeting will be given to stockholders, other than an announcement made at the Special Meeting.
Vote Required
Approval of Proposal 4 requires the affirmative vote of holders of a majority of shares present in person, by remote communication, if applicable, or represented by proxy at the Special Meeting and entitled to vote at the Special Meeting. Abstentions will have the same effect as votes “against” Proposal 4.
Unless marked otherwise, proxies received will be voted “FOR” the approval of Proposal 4.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” PROPOSAL 4.
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding beneficial ownership of our common stock,the Common Stock, as of the Record Date by:
each person, or group of affiliated persons, known by us to beneficially own more than 5% of our common stock;the Common Stock;
each of our named executive officers;
each of our directors and nominees for director; and
all of our current executive officers and directors as a group.
The table lists applicable percentage ownership based on 888,69327,241,685 shares of common stockCommon Stock outstanding as of the Record Date. In addition, the rules include shares of our common stockthe Common Stock issuable pursuant to the exercise of stock options and warrants that are either immediately exercisable or exercisable within 60 days of the Record Date. These shares are deemed to be outstanding and beneficially owned by the person holding those options or warrants for the purpose of computing the percentage ownership of that person, but they are not treated as outstanding for the purpose of computing the percentage ownership of any other person.
We have determined beneficial ownership in accordance with the rules of the SEC. These rules generally attribute beneficial ownership of securities to persons who possess sole or shared voting power or investment power with respect to those securities. Unless otherwise indicated, the persons or entities identified in this table have sole voting and investment power with respect to all shares shown as beneficially owned by them, subject to applicable community property laws. Except as otherwise noted below, the address for each person or entity listed in the table is c/o NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, 19th Floor, Boston, Massachusetts, 02116.
 
​​
SHARES
BENEFICIALLY
OWNED
NAME OF BENEFICIAL OWNER
​​
NUMBER
​​
PERCENT
Greater than 5% stockholders
​​
 
​​
 
Dong-A ST Co., Ltd.(1)
​​
96,020
​​
10.6%
E&Investment, Inc.(2)
​​
200,554
​​
22.6%
Roy Lester Freeman(3)
​​
48,538
​​
5.5%
 
​​
 
​​
 
Directors and Named Executive Officers
​​
 
​​
 
Andrew Koven, Chair of the Board of Directors(4)
​​
833
​​
*
Na Yeon (Irene) Kim, Director(2)(5)
​​
203,957
​​
23.0%
Jason Groves, Director(6)
​​
1,944
​​
*
Michael Salsbury, Director(7)
​​
1,944
​​
*
Hyung Heon Kim, Director
​​
—
​​
—
Richard Kang, Director
​​
—
​​
—
D. Gordon Strickland, Director(8)
​​
407
​​
*
Gil Price, M.D., President and Chief Executive Officer(9)
​​
8,888
​​
1.0%
All current executive officers and directors as a group (8 persons)
​​
218,940
​​
24.5%
 
​​
SHARES
BENEFICIALLY
OWNED
​​
 
NAME OF BENEFICIAL OWNER
​​
NUMBER
​​
PERCENT
Greater than 5% stockholders
​​
 
​​
 
Dong-A ST Co., Ltd.(1)
​​
22,429,353
​​
60.3%
Directors and Named Executive Officers
​​
 
​​
 
Andrew Koven, Chair of the Board of Directors(3)
​​
1,832
​​
*
Na Yeon (Irene) Kim, Director(2)
​​
204,679
​​
*
Jason Groves, Director(3)
​​
2,666
​​
*
Michael Salsbury, Director(3)
​​
2,666
​​
*
Hyung Heon Kim, Director
​​
666
​​
—
D. Gordon Strickland, Director(3)
​​
1,295
​​
*
Joseph Hooker, Interim Chief Executive Officer and President
​​
—
​​
—
Gil Price, Former President and Chief Executive Officer
​​
—
​​
—
Mark A. Glickman(4)
​​
—
​​
—
All current executive officers and directors as a group (8 persons)
​​
213,804
​​
*
*
Represents beneficial ownership of less than one percent.
(1)
Represents 12,429,353 shares of Common Stock and warrants to purchase 10,000,000 shares of Common Stock convertible within 60 days of the Record Date. Based solely on the Company's review of a filing made on aan amendment to Schedule 13D on September 23,December 30, 2022 with the SEC. Dong-A ST Co., Ltd. is a South Korean corporation. The address of Dong-A ST Co., Ltd. Is 64, Cheonho-daero, Dongdaemun-gu, Seoul, Republic of Korea.
(2)
Based solely on the Company’s review of a filing made on an amendment to Schedule 13D on August 5,July 25, 2022 with the SEC. The amendment to the Schedule 13D was filed by The E&Healthcare Investment Fund II (“Fund II”), The E&Healthcare Investment Fund No. 6 (“Fund 6”), The E&Healthcare Investment Fund No. 7 (“Fund 7”), E&Investment, Inc. (“GP”), and Na Yeon Kim. Fund II beneficially owns 96,351 shares of common stock,Common Stock, Fund 6 beneficially owns 37,373 shares of common stock,Common Stock, Fund 7 beneficially owns 62,159 shares of common stockCommon Stock and GP, as the general partner of each of Fund II, Fund 6 and Fund 7, owns 1,459 shares of Common Stock and may be deemed to beneficially own 202,387200,554 shares of common stock.Common Stock. Ms. Kim has been granted stock options to purchase up to 2,6662,000 shares of common stockCommon Stock in respect of her service on the Board, all of which 1,833 are exercisable within 60 days of the Record Date.May 15, 2023. Ms. Kim, as the Chief Executive Officer of GP, may be deemed to hold shared voting and dispositive power over a total of 203,846204,013 shares of common stock.Common Stock. The business address of Ms. Kim and the address of the principal office of the person and entities noted in this footnote is 16th floor, Yeoksam I-Tower, 326, Teheran-ro, Gangnam-gu, Seoul, Republic of Korea 06211.
(3)
Represents shares held by Roy Lester Freeman. The addressunderlying outstanding stock options that are vested or will become vested within 60 days of May 15, 2023.
(4)
Mr. Freeman is 200 Berkeley Street, 19th Floor, Boston, Massachusetts, 02116.Glickman was appointed to the Board on May 11, 2023.
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(4)
Includes 833 shares of common stock issuable upon the exercise of stock options.
(5)
Includes 202,013 shares of common stock and 1,944 shares of common stock issuable upon the exercise of stock options.
(6)
Includes 1,944 shares of common stock issuable upon the exercise of stock options.
(7)
Includes 1,944 shares of common stock issuable upon the exercise of stock options.
(8)
Includes 407 shares of common stock issuable upon the exercise of stock options.
(9)
Includes 8,888 shares of common stock issuable upon the exercise of stock options.
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EXECUTIVE OFFICERS
The following table provides information regarding our executive officers as of the Record Date:
NAME
​​
AGE
​​
POSITION(S)
Joseph Hooker
​​
70
​​
Interim Chief Executive Officer and President
Mr. Joseph Hooker has served as our Interim Chief Executive Officer and President since January 2023. Prior to joining NeuroBo, Mr. Hooker was an independent consultant and advised on an ad hoc basis for leading management consultancies and various pharmaceutical companies with respect to clinical trials, CROs and program management. From May 2019 through October 2020, Mr. Hooker was Sr. Director of Clinical Operations/Program Leader Rare Disease, Oncology for X4 Pharmaceuticals, Inc., where he led a cross functional global program team from pre-clinical through development and commercialization including strategic planning, oversight, execution of clinical operations and the management of staff. From March 2018 to March 2019, Mr. Hooker served as Director, Program Leadership at Biogen, where he led programs and clinical development for gene therapy, ALS, ophthalmology, rare orphan disease and CNS. From September 2017 through February 2018 he served as Senior Director, Clinical Operations at Pierian Bioscience, where he built, developed and led clinical operations for an oncology device program. He also served as Chief Operating Officer of MedAvante-ProPhase from March 2017 to August 2017. Mr. Hooker served as Head, Clinical Operations for Sandoz Biopharmaceuticals, division of Novartis, from February 2014 to May 2015. Mr. Hooker began his pharmaceutical career as Senior Clinical Trial Manager and project leader at DuPont-Merck Pharmaceuticals, and also served at various times in clinical trial management roles at Shire Pharmaceuticals, Cephalon Pharmaceuticals, Quintiles and Novo Nordisk. Mr. Hooker received a BA from Rutgers University and an MBA from Rider University.
EXECUTIVE COMPENSATION
Executive Officer Compensation
The following tables and accompanying narrative disclosure discuss the compensation awarded to, earned by, or paid to:
to Dr. Gil Price, our former President, and Chief Executive Officer
Officer. Dr. Richard Kang,Price was our former President, Chief Executive Officer, Interim Chief Financial Officer, Secretary and Treasurer; and
Mr. Akash Bakshi, our former Chief Operating Officer.
We refer to these threesole executive officers asofficer for the “named executive officers.”year ended December 31, 2022.
Summary Compensation Table for 2021 and 20202022
The following table presents summary information regarding the total compensation for services rendered in all capacities that was earned by our named executive officersofficer during the fiscal yearsyear ended December 31, 2021 and 2020.2022.
NAME AND PRINCIPAL POSITION
​
YEAR
​
SALARY
($)(4)
​
BONUS
($)
​
OPTION
AWARDS
($)(1)
​
ALL OTHER
COMPENSATION
($)
​
TOTAL
($)
​
YEAR
​
SALARY
($)(2)
​
BONUS
($)
​
OPTION
AWARDS
($)(1)
​
TOTAL
($)
Gil Price(2)
President, and Chief Executive Officer
​​
2021
​
66,154
​
—
​
854,122
​
—
​
920,276
​
2020
​
—
​
—
​
—
​
—
​
—
Richard Kang(3)
Former President and Chief Executive Officer
​​
2021
​
260,769
​
130,680
​
—
​
160,000
​
551,449
​
2020
​
302,308
​
125,000
​
—
​
—
​
427,308
Akash Bakshi(4)
Former Chief Operating Officer
​​
2021
​
250,000
​
—
​
—
​
125,000
​
375,000
​
2020
​
—
​
—
​
—
​
—
​
—
Gil Price(2)
Former President and Chief Executive Officer
​​
2022
​
400,000
​
100,000
​
 
​
500,000
​
2021
​
66,154
​
—
​
854,122
​
920,276
(1)
Reflects the aggregate grant date fair value of options granted during the fiscal year ended December 31, 2021,2022, as computed in accordance with ASC 718. The assumptions we used in valuing options are described in Note 8 to our audited financial statements included in our Annual Report on Form 10-K.10-K for the year ended December 31, 2022.
(2)
Dr. Price was appointed as our President and Chief Executive Officer effective November 15, 2021.
(3)
Dr. KangPrice resigned as the Company’sour President and Chief Executive Officer effective November 15, 2021. All other compensation for Dr. Kang includes a severance payment of $150,000 and $10,000 of consulting fees.
(4)
Mr. Bakshi was appointed as our Chief Operating Officer, effective December 31, 2020 upon the Company’s completion of its acquisition of ANA Therapeutics. Mr. Bakshi received no compensation from the Company during the fiscal year ended December 31, 2020. On December 31, 2021, Mr. Bakshi resigned from the Company. All other compensation for Mr. Bakshi includes a severance payment.January 12, 2023.
Narrative Disclosure to Summary Compensation Table

Agreements with Our Named Executive Officers
We havehad entered into written agreements with each ofDr. Price who served as our named executive officers.President and Chief Executive Officer through January 12, 2023.
Dr. Gil Price
On November 3, 2021, the Company and Dr. Price entered into an employment agreement (the “Price Employment Agreement”). The Price Employment Agreement hashad an initial term (the “Initial Term”) of one year
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beginning on November 3, 2021 and automatically renewsrenewed for an additional one year period at the end of the Initial Term a (a “Renewal Term”) provided that at least 60 days prior to the expiration of the Initial Term or any Renewal Term the Board doesdid not notify Dr. Price of its intention not to renew.
The Employment Agreement entitles Dr. Price to an annual base salary of $400,000, reviewed annually.resigned from the Company effective January 12, 2023.
In connection with Dr. Price’s departure, on January 16, 2023, the Company and Dr. Price is also eligibleentered into a Separation and Release Agreement (the “Separation Agreement”). Pursuant to the terms and conditions of the Separation Agreement, in exchange for granting and not revoking a release agreement, Dr. Price will be entitled to receive from the Company (i) severance pay in an amount equal to $100,000, payable in substantially equal installments in accordance with the Company’s payroll practice over three months, beginning on the first payroll date after Dr. Price’s release of the Company becomes effective and irrevocable and (ii) an amount equal to $100,000 as Dr. Price’s annual incentive compensation targeted at 50%bonus for 2022, payable on the first payroll date after Dr. Price’s release of his base salary. the Company becomes effective and irrevocable.
Pursuant to the terms of the Price Employment Agreement, and as approved by the independent members of the Board on November 3, 2021, Dr. Price was granted, effective as of Dr. Price’shis first day of full-time employment with the Company (the “Grant Date”), a
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non-qualified stock option “inducement award” to purchase 616,66620,555 shares of the Company’s Common Stock pursuant to the terms of a stock option award agreement (the “New Hire Option”) under the Inducement Plan as an inducement material to Dr. Price becoming an employee of the Company in accordance with Nasdaq Listing Rule 5635(c)(4). The New Hire Option hashad a ten-year term and vestsvested as to 266,6668,888 of the shares underlying the stock option on the first anniversary of the Grant Date and as to the remaining 350,00011,667 of the shares of Common Stock on the second anniversary of the Grant Date. The New Hire Option granted to Dr. Price hashad an exercise price per share equal to the closing price of the Company’s Common Stock on the Grant Date.
In the event of Dr. Price’s death during the employment period or a termination due to disability, Dr. Price or his beneficiaries or legal representatives shall be provided any annual base salary earned, but unpaid, for services rendered to the Company on or prior to the date on which the employment period ends, unreimbursed expenses and certain other benefits provided for in the Employment Agreements (the “Unconditional Entitlements”). In the event of termination for cause by the Company or the termination of employment as a result of resignation without good reason, Dr. Price shall be provided the Unconditional Entitlements.
In the event of a resignation by Dr. Price for good reason, the exercise by the Company of its right to terminate such officer other than for cause, death or disability or the Company’s election not to extend the employment period upon expiration of the Initial Term or any renewal term (not within twelve months following or three months prior to the effective date of a Change in Control), Dr. Price will receive the Unconditional Entitlements and, subject to him signing and delivering to the Company and not revoking a general release of claims in favor of the Company and certain related parties, the Company shall provide Dr. Price a severance amount equal to $100,000.
In the event of a resignation by Dr. Price for good reason, the exercise by the Company of its right to terminate such officer other than for cause, death or disability, in each case, within twelve months following or three months prior to the effective date of a Change in Control, Dr. Price will receive (i) the Unconditional Entitlements and (ii) 1.0 times the sum of his annual base salary and target cash bonus.
Dr. Richard Kang
On February 11, 2020, we entered into an Employment Agreement with Dr. Kang, our former President and Chief Executive Officer, which was given retroactive effect to January 1, 2020 (the “Kang Employment Agreement”). The Kang Employment Agreement provided for the at-will employment of Dr. Kang as our President and Chief Executive Officer, at a base salary of $300,000 per year. Dr. Kang was also eligible to receive annual bonus compensation with an annual target bonus opportunity of 50% of his base salary, starting with the 2020 fiscal year. Dr. Kang was also eligible to receive an annual stock option grant and to participate in our employee benefit plans that are in effect for similarly-situated employees.
On November 3, 2021, Dr. Kang resigned from his position as President and Chief Executive Officer. In connection with Dr. Kang’s departure, the Company and Dr. Kang entered into a Separation Agreement effective as of November 3, 2021 (the “Separation Agreement”). Pursuant to the Separation Agreement, in exchange for granting and not revoking a customary release agreement after the Separation Date, Dr. Kang will be entitled to receive (i) severance pay in an amount equal to $150,000, payable in substantially equal installments in accordance with the Company’s payroll practice over four months, provided that Dr. Kang has not breached any of his continuing obligations, (ii) an amount equal to $130,680 as the prorated amount of his annual bonus for 2021, and (iii) reimbursement of COBRA premiums for health benefit coverage for up to twelve months, in an amount equal to the monthly employer contribution that the Company would have made to provide health insurance to Dr. Kang had he remained employed with the Company. In addition, in exchange for granting and not revoking a customary release agreement after the Separation Date, the Company will enter into a consulting agreement with Dr. Kang pursuant to which Dr. Kang will provide consulting services to the Company for a period of one year following the effective date of such consulting agreement, during which period Dr. Kang will be entitled to receive $10,000 per month as compensation for such services.
Mr. Akash Bakshi
On December 31, 2020, we entered into an Employment Agreement with Mr. Bakshi (the “Bakshi Employment Agreement”), our former Senior Vice President and Chief Executive Officer. The Bakshi Employment Agreement provided for at-will employment of Mr. Bakshi as our Senior Vice President and Chief Operating Officer at a base salary of $250,000 per year. Mr. Bakshi was also eligible to receive an annual bonus compensation with an annual target bonus opportunity of 40% of his base salary, starting with the 2021 fiscal year.
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On August 13, 2021, we entered into a Release Agreement (the “Bakshi Release Agreement”) with Mr. Bakshi, pursuant to which, we and Mr. Bakshi agreed that Mr. Bakshi’s employment with the Company will terminate as of December 31, 2021 or such earlier date as determined by the Company (the “Resignation Date”). Mr. Bakshi’s employment was terminated on December 31, 2021. Under the Bakshi Release Agreement, subject to non-revocation of a general release and waiver of claims in favor of the Company, the Company has agreed to pay Mr. Bakshi a total of $125,000 less required deductions and withholdings, paid in approximately equal monthly installments during the six-month period commencing within 30 days after the Resignation Date.
Outstanding Equity Awards at Fiscal Year-End 20212022
The following table sets forth information regarding outstanding stock options held by our named executive officersofficer as of December 31, 2021:2022:
NAME
​​
GRANT DATE
​​
VESTING
COMMENCEMENT
DATE
​​
NUMBER OF
SECURITIES
UNDERLYING
UNEXERCISED
OPTIONS
EXERCISABLE
(#)
​​
NUMBER OF
SECURITIES
UNDERLYING
UNEXERCISED
OPTIONS
UNEXERCISABLE
(#)*
​​
OPTION
EXERCISE
PRICE
($)*
​​
OPTION
EXPIRATION
DATE
Dr. Gil Price
​​
November 3, 2021(1)
​​
November 3, 2021
​​
—
​​
20,555(2)
​​
61.20
​​
November 3, 2031
Dr. Richard Kang
​​
—
​​
—
​​
—
​​
—
​​
—
​​
—
Akash Bakshi
​​
—
​​
—
​​
—
​​
—
​​
—
​​
—
NAME
​​
GRANT DATE
​​
VESTING
COMMENCEMENT
DATE
​​
NUMBER OF
SECURITIES
UNDERLYING
UNEXERCISED
OPTIONS
EXERCISABLE
(#)
​​
NUMBER OF
SECURITIES
UNDERLYING
UNEXERCISED
OPTIONS
UNEXERCISABLE
(#)
​​
OPTION
EXERCISE
PRICE
($)
​​
OPTION
EXPIRATION
DATE
Dr. Gil Price
​​
November 3, 2021(1)
​​
November 3, 2021
​​
8,888
​​
11,667(2)
​​
61.20
​​
November 3, 2031
*
The number of shares and exercise price in the table above reflect the effect of the 30-for-1 reverse stock split of the common stock, which was effected on September 12, 2022.
(1)
All of the outstanding stock option awards were granted under the NeuroBo 2021 Inducement Plan.
(2)
Subject to continued service: 8,888 shares vest on the first anniversary of the vesting commencement date, and 11,667 sharesoptions were to vest on the second anniversary of the vesting commencement date.
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Pay Versus Performance Disclosure
In accordance with rules adopted by the SEC pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, we provide the following disclosure regarding executive compensation for our principal executive officer (“PEO”) and Non-PEO named executive officers (“NEOs”) and Company performance for the fiscal years listed below. The compensation committee did not consider the pay versus performance disclosure below in making its pay decisions for any of the years shown.
 
​​
 
​​
 
​​
 
​​
 
​​
 
​​
 
​​
Value of Initial
Fixed $100
Investment Based
On:
​​
 
Fiscal
Year
​​
Summary
Compensation
Table for PEO 1 (1)
​​
Compensation
Actually Paid to
PEO 1(2)(3)
​​
Summary
Compensation
Table for PEO
2(1)
​​
Compensation
Actually Paid
to PEO 2(2)(4)
​​
Average
Summary
Compensation
Table Totals for
non-PEO
NEOs(1)
​​
Average
Compensation
Actually Paid to
non-PEO
NEOs(2)(3)
​​
Total Shareholder
Return
​​
Net Income
(thousands)
2022
​​
N/A
​​
N/A
​​
$500,000
​​
$71,241
​​
—
​​
—
​​
$0.46
​​
$(13,967)
2021
​​
$551,449
​​
$551,449
​​
$920,276
​​
$516,433
​​
$375,000
​​
$375,000
​​
$23.24
​​
$(15,284)
(1)
Dr, Richard Kang (PEO 1) served as our principal executive officer (“PEO”) through November 3, 2021. Dr. Gil Price (PEO 2) was appointed as our President and Chief Executive Officer and became our PEO as of November 3, 2021 and through 2022. The Non-PEO NEO for whom the average compensation is presented in this table for 2021 is Akash Bakshi, who served as our Chief Operating Officer until December 31, 2021.
(2)
The amounts shown as Compensation Actually Paid have been calculated in accordance with Item 402(v) of Regulation S-K and do not reflect compensation actually realized or received by the applicable PEO or non-PEO NEOs. These amounts reflect total compensation as set forth in the Summary Compensation Table for each year, adjusted with respect to Dr. Price as described in footnote 4 below.
(3)
Compensation Actually Paid was equal to the total compensation set forth in the Summary Compensation Table as none of the exclusions and inclusions to determine Compensation Actually Paid were applicable.
(4)
Compensation Actually Paid reflects the exclusions and inclusions of certain amounts for Dr. Price as set forth below. Equity values are calculated in accordance with FASB ASC Topic 718.
PEO
​​
 
​​
 
Prior FYE
Current FYE
Fiscal Year
​​
12/31/2020
12/31/21
2021
​​
12/31/2021
12/31/22
2022
SCT Total
​​
$920,276
​​
$500,000
Minus Grant Date Fair Value of Options Awards and Stock Awards Granted in Fiscal Year
​​
$ (854,122)
​​
—
Plus Fair Value at Fiscal Year-End of Outstanding and Unvested Option Awards and Stock Awards Granted in Fiscal Year
​​
$450,279
​​
—
Plus Change in Fair Value of Outstanding and Unvested Options Awards and Stock Awards Granted in Prior Fiscal Years
​​
—
​​
$(255,112)
Plus Fair Value at Vesting of Option Awards and Stock Awards Granted in Fiscal Year That Vested During Fiscal Year
​​
—
​​
$10,527
Plus Changes in Fair Values as of Vesting Date of Option Awards and Stock Awards Granted in Prior Fiscal Years For Which Applicable Vesting Conditions Were Satisfied During Fiscal Year
​​
—
​​
(184,174)
Minus Fair Value as of Prior Fiscal Year-End of Option Awards and Stock Awards Granted in Prior Fiscal Years That Failed to Meet Applicable Vesting Conditions During Fiscal Year
​​
$—
​​
—
Compensation Actually Paid
​​
$516,433
​​
$71,241
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Relationship Between PEO and Non-PEO NEO Compensation Actually Paid and Company Total Shareholder Return (“TSR”)
The following chart sets forth the relationship between Compensation Actually Paid (“CAP”) to our PEOs, the average of Compensation Actually Paid to our Non-PEO NEOs in 2021, and the Company's TSR over the two most recently completed fiscal years.

Description of Relationship Between PEO and Non-PEO NEO Compensation Actually Paid and Net Income
The following chart sets forth the relationship between Compensation Actually Paid to our PEOs, the average of Compensation Actually Paid to our Non-PEO NEOs in 2021, and the Company’s net income over the two most recently completed fiscal years.

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CERTAIN RELATIONSHIPS AND RELATED-PARTY TRANSACTIONS
The following includes a summary of transactions since January 1, 2021 to which we have been a party, in which the amount involved in the transaction exceeded the lesser of $120,000 or 1% of the average of the Company's total assets at year end for the last two completed fiscal years, and in which any of our directors, nominees for director, executive officers or, to our knowledge, beneficial owners of more than 5% of our capital stock or any member of the immediate family of any of the foregoing persons had or will have a direct or indirect material interest, other than equity and other compensation, termination, change of control and other arrangements, which are described under “Proposal No. 1, Election of Class I Directors-Non-Employee Director Compensation” and “Executive Compensation.”
Recent Transactions with Dong-A ST Co., Ltd.
License Agreement
On September 14, 2022, we entered into a License Agreement with Dong-A ST Co., Ltd. (“Dong-A”) pursuant to which, subject to the conditions set forth therein, we would receive an exclusive global license (other than in the Republic of Korea) to two proprietary compounds for specified indications (the “2022 License Agreement”). The 2022 License Agreement covers the rights to a compound referred to as DA-1241 for treatment of nonalcoholic steatohepatitis (“NASH”) and a compound referred to as DA-1726 for treatment of obesity and NASH. We may also develop DA-1241 for the treatment of Type 2 diabetes. The 2022 License Agreement became effective on November 8, 2022. As of March 24, 2023, Dong-A was the beneficial owner of more than 5% of our Common Stock.
Under the terms of the 2022 License Agreement, Dong-A: (i) received an upfront payment of 2,200 shares of Series A Preferred Stock under the terms of the Securities Purchase Agreement (as defined below); (ii) is eligible to receive single digit royalties on net sales received by us from the commercial sale of products covering DA-1241 or DA-1726; (iii) is eligible to receive commercial-based milestone payments, dependent upon the achievement of specific commercial developments; and (iv) is eligible to receive regulatory milestone payments of up to $178 million for DA-1726 and $138 million for DA-1241, dependent upon the achievement of specific regulatory developments.
Securities Purchase Agreement
On September 14, 2022, in connection with the 2022 License Agreement, we entered into a Securities Purchase Agreement with Dong-A (the “Securities Purchase Agreement”). Pursuant to the Securities Purchase Agreement, upon the consummation of the 2022 License Agreement and a Qualified Financing (as defined in the Securities Purchase Agreement), which occurred on November 8, 2022, (i) Dong-A received the Upfront License Payment (as defined therein) and (ii) Dong-A purchased 1,500 shares of Series A Preferred Stock and the warrants to purchase 10,000,000 shares of Common Stock.
On December 22, 2022, our stockholders approved the conversion of the Series A Preferred Stock and the exercise of the Dong-A Warrants and all of the Series A Preferred Stock converted into 12,333,333 shares of the Common Stock.
Shared Services Agreement
On September 14, 2022, in connection with the 2022 License Agreement, the Company and Dong-A entered into a Shared Services Agreement (the “Shared Services Agreement”). The Shared Services Agreement provides that Dong-A provides technical support, pre-clinical development, and clinical trials support services in exchange for payment to Dong-A as set forth therein. In addition, the Shared Services Agreement provides that Dong-A will manufacture all of our clinical requirements of DA-1241 and DA-1726 under the terms provided in the Shared Services Agreement.
Either party may terminate the Shared Services Agreement for the other party’s material breach that is not cured within 30 days of notice. Dong-A may also terminate the Shared Services Agreement in part on a service-by-service or product-by-product basis upon a breach by us which is not cured within 30 days.
Registration Rights Agreement
In connection with the Securities Purchase Agreement, on September 14, 2022, we entered into a registration rights agreement with Dong-A and the other selling stockholders party thereto (the “Registration Rights Agreement”). The Registration Rights Agreement provides Dong-A with demand and piggyback registration rights,
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including the right to two long-form registration statements. In addition, we agreed to file, within 30 days following the stockholder approval of the conversion of the Series A Preferred Stock (“Stockholder Approval”), which occurred on December 22, 2022, a registration statement to: (i) register the shares of Common Stock issuable upon the conversion of the Series A Preferred Stock; (ii) register the shares of Common Stock issuable upon the exercise of the warrants; and (iii) register any other Common Stock held by the parties to the Registration Rights Agreement (the “Registrable Securities”); and to use commercially reasonable efforts to cause each registration statement to be declared effective under the Securities Act, as promptly as possible after the filing thereof, but in any event no later than the 60th day after Stockholder Approval (or in case the SEC reviews the registration statement, the 90th date after Stockholder Approval); provided that if we are notified that the registration statement is not being reviewed or is no longer subject to comment, we are required to make the registration statement effective by the fourth trading day after such date. We agreed to use our commercially reasonable efforts to keep such registration statement continuously effective under the Securities Act until the date that all Registrable Securities covered by such registration statement have been sold or are otherwise able to be sold pursuant to Rule 144.
Investor Rights Agreement
On September 14, 2022, we entered into an investor rights agreement with Dong-A (the “Investor Rights Agreement”) pursuant to which, following the conversion of the Series A Preferred Stock into Common Stock, Dong-A will have the right, subject to the terms thereof, to designate for appointment to the Board that number of directors commensurate with Dong-A’s and its affiliates’ beneficial ownership of the Common Stock, with the number of directors that Dong-A is entitled to designate rounded up to the nearest whole number (the “DA Designees”). To the extent necessary to permit the designation of the DA Designees, the size of the Board shall be increased to that number of directors that would permit Dong-A to designate a number of directors to fill the vacancies created thereby that is commensurate with Dong-A’s and its affiliates’ collective beneficial ownership of the Common Stock outstanding at such time (taking into account any DA Designees already serving on the Board at such time). The compensation (including equity-based compensation) and rights to indemnity of, and reimbursement of expenses incurred by, the DA Designees that are members of the Board will be the same as those provided to other non-employee directors generally. When evaluating a prospective DA Designee for membership on the Board, the Board and the nominating and corporate governance committee shall apply the same review processes and standards as each of them, respectively, applies to other prospective non-employee directors generally.
In addition, the Investor Rights Agreement provides for a customary standstill for nine months following the conversion of the Series A Preferred Stock to Common Stock. Furthermore, for so long as Dong-A has the right to designate any DA Designee to the Board, Dong-A will vote their shares of the Common Stock in favor of any Company Director (as defined in the Investor Rights Agreement) or any nominee designated by the nominating and corporate governance committee of the Board and against the removal of any Director, in each case, at any meeting of the stockholders.
Manufacturing Agreement with Dong-A
On September 28, 2018, our predecessor entered into a five year manufacturing and supply agreement with Dong-A for manufacturing and supply of NB-01 drug substance and placebos for the purpose of research and development to be used in Phase 3 clinical trials (the “Manufacturing Agreement”). Under the terms of the Manufacturing Agreement, Dong-A has agreed to produce for NeuroBo a specified number of tablets of the NB-01 drug substance and placebos at a supply price to be determined at the time of each individual order. In addition, prices were set for stability testing of the NB-01 drug substance and placebo. The Company incurred no such expenses for the years ended December 31, 2022 and 2021.
The Manufacturing Agreement will automatically terminate in the event that the license agreement with Dong-A is terminated for any reason. In addition, each of Dong-A and the Company may terminate the Manufacturing Agreement (1) upon the material breach by the other party, if the breach is not cured within a specified number of days after receiving notice from the terminating party, or if the breach cannot reasonably be cured within such period and the breaching party has not started to remedy the breach within such period and diligently endeavored to cure the breach within a reasonable time thereafter, or (2) in the event that (i) the other party is the subject of a petition for bankruptcy, reorganization, or arrangement and the same is not dismissed within thirty days thereof, (ii) a receiver or trustee is appointed for all or a substantial portion of the assets of the other party, or (iii) the other party makes an assignment for the benefit of its creditors.
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PROPOSAL 2

RATIFICATION OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The audit committee has appointed BDO USA, LLP as the independent registered public accounting firm to audit the Company’s consolidated financial statements for the year ending December 31, 2023.
At the Annual Meeting, the stockholders are being asked to ratify the appointment of BDO USA, LLP as our independent registered public accounting firm for the fiscal year ending December 31, 2023. Our audit committee is submitting the selection of BDO USA, LLP to our stockholders because we value our stockholders’ views on our independent registered public accounting firm and as a matter of good corporate governance. If this proposal does not receive the affirmative approval of a majority of the votes cast on the proposal, the audit committee would reconsider the appointment. Notwithstanding its selection and even if our stockholders ratify the selection, our audit committee, in its discretion, may appoint another independent registered public accounting firm at any time during the year if the audit committee believes that such a change would be in our best interests and the interests of our stockholders.
Representatives of BDO USA, LLP are expected to be present at the Annual Meeting by remote communication. They will have an opportunity to make a statement if they so desire and will be available to respond to appropriate questions.
Service Fees Paid to the Independent Registered Public Accounting Firms
The audit committee has considered the scope and fee arrangements for all services provided by BDO USA, LLP, taking into account whether the provision of non-audit-related services is compatible with maintaining BDO USA, LLP’s independence. The following table presents fees for professional audit services rendered by BDO USA, LLP for the audit of the annual financial statements for the years ended December 31, 2022 and 2021.
FEE CATEGORY
​​
FISCAL YEAR
2022
​​
FISCAL YEAR
2021
Audit fees
​​
$677,037
​​
$343,034
Audit-related fees
​​
$—
​​
$—
Tax fees
​​
$—
​​
$—
All other fees
​​
$—
​​
$—
Total fees
​​
$677,037
​​
$343,034
Audit fees consist of fees billed for services relating to the audit of our annual financial statements and review of our quarterly financial statements, services that are normally provided in connection with statutory and regulatory filings or engagements, comfort letters, reports on an issuer’s internal controls, and review of documents to be filed with the SEC (e.g. periodic filings, registration statements, and company responses to SEC comment letters).
Audit-related fees are related to other assurance and related services that are traditionally performed by an independent accountant such as employee benefit plan audits, due diligence related to mergers and acquisitions, accounting assistance and audits in connection with proposed or consummated acquisitions, attest services that are not required by statute or regulation, and consultations concerning proposed accounting and reporting standards.
Tax fees relate to permissible services for technical tax advice related to federal and state income tax matters.
Policy on Audit Committee Pre-Approval of Audit and Permissible Non-Audit Services of Independent Registered Public Accounting Firm
Our audit committee generally pre-approves all audit and permitted non-audit and tax services provided by the independent registered public accounting firm. Pre-approval is detailed as to the particular service or category of services and is generally subject to a specific budget. The independent registered public accounting firm and management are required to periodically report to the audit committee regarding the extent of services provided by the independent registered public accounting firm in accordance with this pre-approval, and the fees for the services performed to date. Our audit committee may also pre-approve particular services on a case-by-case basis. All of the services relating to the fees described in the table above were approved by our audit committee.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” APPROVAL OF PROPOSAL 2.
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PROPOSAL 3

APPROVAL OF A PROPOSED AMENDMENT TO OUR CERTIFICATE OF INCORPORATION TO
EFFECT A REVERSE SPLIT OF OUR OUTSTANDING COMMON STOCK
General
The Board has unanimously approved an amendment to the Certificate of Incorporation to effect a reverse split of the Common Stock any time prior to the first anniversary of its approval by the stockholders at a ratio in the range of 1-for-5 to 1-for-8, to be determined at the discretion of the Board, whereby each outstanding 5 to 8 shares would be combined, converted and changed into 1 share of the Common Stock. A form of the certificate of amendment to the Certificate of Incorporation for the reverse stock split (the “Reverse Stock Split Certificate of Amendment”) is attached hereto as Appendix A. The following discussion is qualified in its entirety by the full text of the Reverse Stock Split Certificate of Amendment, which is incorporated herein by reference.
The Board has recommended that the proposed Reverse Stock Split Certificate of Amendment to effect the reverse stock split be presented to the Company’s stockholders for approval. If the Reverse Stock Split Certificate of Amendment is approved by holders of a majority of the shares of Common Stock entitled to vote at the Annual Meeting, the Board will have discretion to determine, as it deems to be in the best interest of the Company’s stockholders, the specific ratio to be used within the range described above and the timing of the reverse stock split, which must occur any time prior to the first anniversary of its approval by the stockholders. The Board believes that stockholder approval of the range of reverse stock split ratios (as opposed to approval of a single reverse stock split ratio) provides the Board with maximum flexibility to achieve the purpose of a reverse stock split, as discussed below, and therefore is in the best interests of the Company and its stockholders.
The Board may, in its discretion, determine not to effect the reverse stock split if it determines, subsequent to obtaining stockholder approval, that such action is not in the best interests of the Company. By voting in favor of the reverse stock split, you are expressly authorizing the Board to determine not to proceed with, and abandon, the reverse stock split if it should so decide.
Reasons for the Reverse Stock Split
The Common Stock is traded on the Nasdaq under the symbol “NRBO.”
For the Common Stock to continue trading on the Nasdaq, we must comply with various listing standards, including that the Common Stock maintain a minimum bid price of $1.00 per share, as set forth in Nasdaq Listing Rule 5550(a)(2) (the “Minimum Bid Price Requirement”). The closing price of the Common Stock on the Nasdaq on [], 2023 was $[] per share and, over the prior 52 weeks, the closing price of the Common Stock has ranged from $[] to $[] per share.
As previously disclosed, on February 8, 2023, we received a letter (the “Notice”) from the Listing Qualifications Staff of the Nasdaq indicating that, based on the closing bid price of the Common Stock for the 30 consecutive business days preceding the Notice, the Company no longer meets the Minimum Bid Price Requirement. The Notice has no effect on the listing of the Common Stock at this time, and the Common Stock continues to trade on the Nasdaq under the symbol “NRBO.” In accordance with Nasdaq Listing Rule 5810(c)(3)(A), the Company was provided a period of 180 calendar days in which to regain compliance.
The Notice further stated that if compliance with the Minimum Bid Price Requirement cannot be demonstrated by the end of the compliance period, the Company may be eligible for a second 180-day period to regain compliance. If the Company qualifies for such extension, the Company expects to submit a request to the Nasdaq for a 180-day extension to regain compliance with the Minimum Bid Price Requirement under the Nasdaq Listing Rules. If we do not regain compliance with the Minimum Bid Price Requirement by the end of the compliance period (either on an initial or an extended basis) the Common Stock will be subject to delisting. At such time, the Company may appeal the Nasdaq’s delisting determination.
The Board is asking the stockholders to grant it the authority, at its discretion, to effect a reverse stock split, which the Board believes is an effective way to increase the minimum bid price of the Common Stock proportionately by reducing the number of outstanding shares of Common Stock and put us in a position to regain compliance with Nasdaq Listing Rule 5550(a)(2). The Board further believes that the increased market price of the Common Stock expected as a result of implementing the reverse stock split may improve marketability and liquidity of the Common Stock and may encourage trading.
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In evaluating whether or not to recommend that stockholders authorize the reverse stock split, in addition to the considerations described above, the Board took into account various negative factors associated with a reverse stock split. These factors include: the negative perception of reverse stock splits held by some investors, analysts, and other stock market participants; the fact that the stock price of some companies that have effected reverse stock splits has subsequently declined, with a corresponding decline in market capitalization; the adverse effect on liquidity that might be caused by a reduced number of shares outstanding; and the costs associated with implementing a reverse stock split. Conversely, we believe the current low market price of the Common Stock impairs its acceptability to important segments of the institutional investor community and the investing public. Many investors look upon low-priced stock as unduly speculative in nature and, as a matter of policy, avoid investment in such stocks. We believe that the low market price of the Common Stock has reduced the effective marketability of our shares because of the reluctance of many brokerage firms to recommend low-priced stock to their clients. Further, a variety of brokerage house policies and practices tend to discourage individual brokers within those firms from dealing in low-priced stocks. Some of those policies and practices pertain to the payment of brokers’ commissions and to time-consuming procedures that function to make the handling of low-priced stocks unattractive to brokers from an economic standpoint. In addition, the structure of trading commissions also tends to have an adverse impact upon holders of low-priced stock because the brokerage commission on a sale of low-priced stock generally represents a higher percentage of the sales price than the commission on a relatively higher-priced issue.
The Board believes that maintaining the listing of the Common Stock on the Nasdaq is in the best interests of the Company and its stockholders. The Board believes that the delisting of the Common Stock from the Nasdaq would impair our ability to raise additional funds and result in lower prices and larger spreads in the bid and ask prices for the Common Stock, among other things. See “Certain Risk Factors Associated with the Reverse Stock Split or Nasdaq Delisting” below for more information.
Determination of the Reverse Stock Split Ratio
The Board only intends to implement the reverse stock split to the extent it believes necessary to maintain the Company’s listing on the Nasdaq. In determining the ratio to be used, the Board will consider various factors, including but not limited to:
the potential impact and anticipated benefits to the Company and its stockholders;
market conditions and existing and expected market price of the Common Stock at such time;
existing and expected marketability of the Common Stock;
the number of shares that will be outstanding after the reverse stock split;
the stockholders’ equity at such time; and
the trading volume of the Common Stock at such time.
In addition, in 2020, the SEC approved a previously proposed Nasdaq rule change to expedite delisting of securities with a closing bid price at or below $0.10 for 10 consecutive trading days during any bid price compliance period and that have had one or more reverse stock splits with a cumulative ratio of 1 for 250 or more shares over the prior two-year period. In addition, if a company falls out of compliance with the $1.00 minimum bid price after completing reverse stock splits over the immediately preceding two years that cumulatively result in a ratio of 1 for 250 shares, the company will not be able to avail itself of any bid price compliance periods under Rule 5810(c)(3)(A), and Nasdaq will instead require the issuance of a Nasdaq Staff delisting determination. The company could appeal the determination to a hearings panel, which could grant the company a 180-day exception to remain listed if it believes the company would be able to achieve and maintain compliance with the bid price requirement. Following the exception, the company would be subject to the procedures applicable to a company with recurring deficiencies (Nasdaq Rule 5815(d)(4)(B)).
Impact of the Reverse Stock Split, if Implemented
The Certificate of Incorporation currently authorizes the issuance of 100,000,000 shares of Common Stock, par value $0.001 per share. On April 30, 2023, the Company had: 27,176,685 shares of Common Stock issued and outstanding, 40,272 shares of Common Stock issuable upon the exercise of outstanding options, 13,458,576 shares of Common Stock issuable upon the exercise of outstanding warrants and 5,087,721 shares of Common Stock reserved for future issuance under the Plan and the Company’s 2021 Inducement Plan (the “Inducement Plan”).
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As a matter of Delaware law, the implementation of a reverse stock split does not require a reduction in the total number of authorized shares. If the Company’s stockholders adopt and approve the Reverse Stock Split Certificate of Amendment and the reverse stock split is implemented by the Company, the authorized number of shares of the Common Stock would not be reduced by the reverse stock split ratio determined by the Board.
If approved and effected, the reverse stock split will automatically apply to all shares of the Common Stock, and each stockholder will own a reduced number of shares of the Common Stock. However, except for adjustments that may result from the treatment of fractional shares, as described below, or as a result of adjustments to the conversion prices of certain convertible securities, as described below, the reverse stock split will not affect any stockholder’s percentage ownership or proportionate voting power.
Based on the Company’s capitalization as of April 30, 2023, the principal effect of the reverse stock split (at a ratio between 1-for-5 and 1-for-8), not taking into account the treatment of fractional shares described under “-Procedure for Effecting the Reverse Stock Split-Treatment of Fractional Shares” below, would be that:
the number of shares of the Common Stock issued and outstanding would be reduced from 27,241,685 shares to between approximately 3,405,210 shares and 5,448,337 shares;
the number of shares of the Common Stock issuable upon the exercise of outstanding stock options would be reduced from 40,272 to between approximately 5,034 shares and 8,054 shares (and the respective exercise prices of the options would increase by a factor equal to the inverse of the split ratio);
the number of shares of the Common Stock issuable upon the exercise of outstanding warrants would be reduced from 13,458,576 to between approximately 1,682,322 shares and 2,691,715 shares (and the respective exercise prices of the warrants would increase by a factor equal to the inverse of the split ratio);
the aggregate number of shares of the Common Stock reserved for issuance, in connection with future awards under the Plan and the Inducement Plan would be reduced from 5,087,721 to between approximately 635,965 shares and 1,017,544 shares;
the number of shares of the authorized Common Stock would remain unchanged at 100,000,000 shares;
the 10,000,000 shares of the Company’s authorized preferred stock would remain unchanged; and
the number of shares of the Common Stock that are authorized, but unissued and unreserved, would increase from 54,171,746 to between approximately 90,834,350 shares and 94,271,469 shares; and the par value of the Common Stock and the Company’s preferred stock would remain unchanged at $0.001 per share, and, as a result, the stated capital attributable to Common Stock on the Company’s balance sheet would be reduced proportionately based on the reverse stock split ratio, the additional paid-in capital account would be credited with the amount by which the stated capital is reduced, and the per-share net income or loss and net book value of the Common Stock would be restated because there would be fewer shares of Common Stock outstanding.
The following table contains approximate information relating to the Common Stock immediately following the reverse stock split under certain possible exchange ratios, based on share information as of April 30, 2023. All share numbers are rounded down to the nearest whole share but otherwise do not reflect the potential effect of rounding down for fractional shares that may result from the reverse stock split.
 
​​
Pre-Reverse
Split
​​
1-for-5
​​
1-for-8
Number of authorized shares of Common Stock
​​
100,000,000
​​
100,000,000
​​
100,000,000
Number of outstanding shares of Common Stock
​​
27,241,685
​​
5,448,337
​​
3,405,210
Number of shares of Common Stock issuable upon exercise of outstanding stock options
​​
40,272
​​
8,054
​​
5,034
Number of shares of Common Stock issuable upon exercise of outstanding warrants
​​
13,458,576
​​
2,691,715
​​
1,682,322
Number of shares of Common Stock reserved for issuance in connection with future awards under the Plan and the Inducement Plan
​​
5,087,721
​​
1,017,544
​​
635,965
Number of shares of Common Stock authorized, but unissued and unreserved
​​
54,171,746
​​
90,834,350
​​
94,271,269
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See also “Certain Risk Factors Associated with the Reverse Stock Split or Nasdaq Delisting” and “-Procedure for Effecting the Reverse Stock Split-Treatment of Fractional Shares” below for additional information regarding the potential impact of the reverse stock split.
Anti-Takeover and Dilutive Effects
The number of authorized shares of the Common Stock and preferred stock will not be reduced as a result of the reverse stock split. The Common Stock and preferred stock that is authorized but unissued provide the Board with flexibility to effect, among other transactions, public or private financings, acquisitions, stock dividends, stock splits and the granting of equity incentive awards. However, these authorized but unissued shares may also be used by the Board, consistent with and subject to its fiduciary duties, to deter future attempts to gain control of us or make such actions more expensive and less desirable. Following the reverse stock split, the Board would continue to have the authority to issue additional shares from time to time without further action by the stockholders except as may be required by applicable law or regulations. The Reverse Stock Split Certificate of Amendment is not being recommended in response to any specific effort of which we are aware to obtain control of us, nor does the Board have any present intent to use the authorized but unissued Common Stock or preferred stock to impede a takeover attempt.
Certain Risk Factors Associated with the Reverse Stock Split or Nasdaq Delisting
A reverse stock split may negatively impact the market for the Common Stock.
Factors such as our financial results, market conditions and the market perception of our business may adversely affect the market price of the Common Stock. As a result, there can be no assurance that the total market capitalization of the Common Stock after the proposed reverse stock split will be equal to or greater than the total market capitalization before the proposed reverse stock split or that the per share market price of the Common Stock following the reverse stock split will increase in proportion to the reduction in the number of shares of Common Stock outstanding before the reverse stock split. A decline in the market price of the Common Stock after the reverse stock split may result in a greater percentage decline than would occur in the absence of a reverse stock split, and the liquidity of the Common Stock could be adversely affected following such a reverse stock split.
In addition, the reverse stock split may increase the number of stockholders who own odd lots (less than 100 shares). Any stockholder who owns fewer than 500 to 800 shares of Common Stock, depending on the final ratio, prior to the reverse stock split will own fewer than 100 shares of Common Stock following the reverse stock split. Stockholders who hold odd lots typically experience an increase in the cost of selling their shares and may have greater difficulty in effecting sales. Furthermore, some stockholders may cease being stockholders of the Company following the reverse stock split. Any stockholder who owns fewer than 5 to 8 shares of Common Stock, depending on the final ratio, prior to the reverse stock split will own less than one share of Common Stock following the reverse stock split and therefore such stockholder will receive cash equal to the market value of such fractional share and cease being a stockholder of the Company, as further described below under “-Procedure for Effecting the Reverse Stock Split-Treatment of Fractional Shares”.
The market price of the Common Stock will also be based on our performance and other factors, including those factors listed under the heading “Risk Factors” and elsewhere in our Annual Report on Form 10-K for the year ended December 31, 2022, Quarterly Report on Form 10-Q for the quarter ended March 31, 2023 and other reports that we file with the SEC. There can also be no assurance that the minimum bid price per share of the Common Stock will remain in excess of $1.00 following the reverse stock split for a sustained period of time, if at all.
We are not currently in compliance with the continued listing requirements for Nasdaq. If the price of the Common Stock continues to trade below $1.00 per share for a sustained period or we do not meet other continued listing requirements, the Common Stock may be delisted from the Nasdaq, which could affect the market price and liquidity for the Common Stock and reduce our ability to raise additional capital.
On February 8, 2023, we received written notice (the “Notification Letter”) from The Nasdaq Stock Market LLC (the “Nasdaq Stock Market”) notifying us that the Company was not in compliance with the minimum bid price requirements set forth in Nasdaq Listing Rule 5550(a)(2) for continued listing on the Nasdaq. Nasdaq Listing Rule 5550(a)(2) requires listed securities maintain a minimum closing bid price of $1.00 per share, and Nasdaq Listing Rule 5810(c)(3)(A) provides that a failure to meet the minimum closing bid price requirement exists if the deficiency continues for a period of 30 consecutive business days. Based on the closing bid price of the Common Stock for the 30 consecutive business days prior to the date of the Notification Letter, the Company did not meet the minimum closing
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bid price requirement. To regain compliance, the closing bid price of the Common Stock must be at least $1.00 per share for a minimum of 10 consecutive business days at any time prior to August 7, 2023.
We continue to monitor the closing bid price of the Common Stock and consider our available options to resolve our noncompliance with the Minimum Bid Price Requirement. There can be no assurance that we will be able to regain compliance with the Minimum Bid Price Requirement or we will otherwise be in compliance with other Nasdaq listing criteria. If we fail to regain compliance with the Minimum Bid Price Requirement or to meet the other applicable continued listing requirements for the Nasdaq in the future, Nasdaq may delist the Common Stock.
Delisting from the Nasdaq could adversely affect our ability to raise additional financing through the public or private sale of equity securities, would significantly affect the ability of investors to trade our securities and would negatively affect the value and liquidity of the Common Stock. Delisting could also have other negative results, including the potential loss of confidence by employees, the loss of institutional investor interest and fewer business development opportunities. If the Common Stock is delisted by the Nasdaq, the price of the Common Stock may decline, and the Common Stock may be eligible to trade on the OTC Bulletin Board, another over-the-counter quotation system, or on the pink sheets where an investor may find it more difficult to dispose of their Common Stock or obtain accurate quotations as to the market value of the Common Stock. Further, if we are delisted, we would incur additional costs under requirements of state “blue sky” laws in connection with any sales of our securities. These requirements could severely limit the market liquidity of the Common Stock and the ability of our stockholders to sell the Common Stock in the secondary market.
In addition, if the Common Stock is delisted from the Nasdaq and the trading price remains below $5.00 per share, trading in the Common Stock might also become subject to the requirements of certain rules promulgated under the Exchange Act, which require additional disclosure by broker-dealers in connection with any trade involving a stock defined as a “penny stock” (generally, any equity security not listed on a national securities exchange or quoted on Nasdaq that has a market price of less than $5.00 per share, subject to certain exceptions).
If we seek to implement a reverse stock split to remain listed on the Nasdaq, the announcement or implementation of a reverse stock split could significantly negatively affect the price of the Common Stock. Additionally, in 2020, the SEC approved a previously proposed Nasdaq Stock Market rule change to expedite delisting of securities with a closing bid price at or below $0.10 for 10 consecutive trading days during any bid price compliance period and that have had one or more reverse stock splits with a cumulative ratio of 1 for 250 or more shares over the prior two-year period. In addition, if a company falls out of compliance with the $1.00 minimum bid price after completing reverse stock splits over the immediately preceding two years that cumulatively result in a ratio of 1 for 250 shares, the company will not be able to avail itself of any bid price compliance periods under Rule 5810(c)(3)(A), and the Nasdaq Stock Market will instead require the issuance of a Nasdaq Staff delisting determination. The company could appeal the determination to a hearings panel, which could grant the company a 180-day exception to remain listed if it believes the company would be able to achieve and maintain compliance with the bid price requirement. Following the exception, the company would be subject to the procedures applicable to a company with recurring deficiencies (Nasdaq Rule 5815(d)(4)(B)).
We continue to actively monitor our performance with respect to the listing standards and are considering available options to resolve the deficiency and regain compliance with the Nasdaq rules. There can be no assurance that we will be able to regain compliance with any deficiency, or maintain compliance even if we implement an option that regains our compliance.
A reverse stock split would increase our authorized but unissued shares of Common Stock, which could negatively impact a potential investor if they purchased shares of Common Stock.
Because the number of authorized shares of the Common Stock will not be reduced proportionately, the reverse stock split will increase the Board’s ability to issue authorized and unissued shares without further stockholder action. The issuance of additional shares of Common Stock or securities convertible into Common Stock may have a dilutive effect on earnings per share and relative voting power and may cause a decline in the trading price of the Common Stock. The Company could use the shares that are available for future issuance in dilutive equity financing transactions, or to oppose a hostile takeover attempt or delay or prevent changes in control or changes in or removal of management, including transactions that are favored by a majority of the stockholders or in which the stockholders might otherwise receive a premium for their shares over then-current market prices or benefit in some other manner.
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Procedure for Effecting the Reverse Stock Split
When and if the Board decides to implement the reverse stock split at any time before the first anniversary of its approval by the stockholders, the Company will promptly file the Reverse Stock Split Certificate of Amendment with the Secretary of State of the State of Delaware to amend its existing Certificate of Incorporation. The reverse stock split will become effective upon filing the Reverse Stock Split Certificate of Amendment with the Secretary of State of the State of Delaware or at a later date and time set forth therein, if any, which effective time is referred to as the “reverse stock split effective date”. Beginning on the reverse stock split effective date, each certificate representing pre-reverse stock split shares will be deemed for all corporate purposes to evidence ownership of post-reverse stock split shares. The text of the Reverse Stock Split Certificate of Amendment is set forth in Appendix A to this proxy statement. The text of the Reverse Stock Split Certificate of Amendment is subject to modification to include such changes as may be required by the office of the Secretary of State of the State of Delaware and as the Board deems necessary and advisable to effect the reverse stock split, including the applicable ratio for the reverse stock split.
After the reverse stock split effective date, the Common Stock will have a new CUSIP number, which is a number used to identify securities, and stock certificates with the old CUSIP number will need to be exchanged for stock certificates with the new CUSIP number using the procedures described below.
Exchange of Stock Certificates
As soon as practicable after the effective date of the reverse stock split, stockholders holding certificated shares will be notified that the reverse stock split has been effected. American Stock Transfer and Trust Company, LLC, the Company’s transfer agent, will act as exchange agent for purposes of implementing the exchange of stock certificates. Holders of pre-split shares in certificated form will be asked to surrender to the exchange agent certificates representing pre-split shares in exchange for certificates representing post-split shares in accordance with the procedures to be set forth in a letter of transmittal that will be delivered to the stockholders. No new certificates will be issued to a stockholder until the stockholder has surrendered to the exchange agent his, her or its outstanding certificate(s) together with the properly completed and executed letter of transmittal.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATES AND SHOULD NOT SUBMIT THEIR STOCK CERTIFICATES UNTIL THEY RECEIVE A TRANSMITTAL FORM FROM THE EXCHANGE AGENT.
STOCKHOLDERS ARE ENCOURAGED TO PROMPTLY SURRENDER CERTIFICATES TO THE EXCHANGE AGENT FOLLOWING RECEIPT OF TRANSMITTAL FORMS IN ORDER TO AVOID HAVING SHARES POSSIBLY BECOMING SUBJECT TO ESCHEAT LAWS.
Stockholders whose shares are held by their stockbroker do not need to submit old share certificates for exchange. Their accounts will automatically reflect the new quantity of shares based on the selected reverse stock split ratio. Beginning on the reverse stock split effective date, each certificate representing pre-split shares will be deemed for all corporate purposes to evidence ownership of post-split shares.
Treatment of Fractional Shares
To avoid the existence of fractional shares of Common Stock after the reverse stock split, fractional shares that would be created as a result of the reverse stock split will be rounded down to the next whole share and the stockholder will receive cash equal to the market value of the fractional share, determined by multiplying such fraction by the closing sales price of the Common Stock as reported on the Nasdaq on the last trading day before the reverse stock split effective date (as adjusted to give effect to the reverse stock split). The ownership of a fractional share will not give the holder any voting, dividend or other right except to receive the cash payment therefor. If a stockholder is entitled to a cash payment in lieu of any fractional share, a check will be mailed to the stockholder’s registered address as soon as practicable after the reverse stock split effective date. By signing and cashing the check, stockholders will warrant that they owned the shares of Common Stock for which they received such cash payment.
No Appraisal Rights
Under the Delaware General Corporation Law, our stockholders do not have a right to dissent and are not entitled to appraisal rights with respect to the proposed Reverse Stock Split Certificate of Amendment to effect the reverse stock split, and we will not independently provide our stockholders with any such rights.
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Material Federal Income Tax Consequences
The following discussion of certain U.S. federal income tax consequences to the Company’s stockholders of the reverse stock split, if effected, does not purport to be a complete discussion of all of the possible U.S. federal income tax consequences and is included for general information only. It is not intended as tax advice to any person and is not a comprehensive description of the tax consequences that may be relevant to each stockholder’s own particular circumstances. The discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), applicable Treasury Regulations promulgated thereunder, judicial authority and current administrative rulings and practices as in effect on the date of this proxy statement. Changes to the laws could alter the tax consequences described below, possibly with retroactive effect. The Company has not sought and will not seek an opinion of counsel or a ruling from the Internal Revenue Service regarding the U.S. federal income tax consequences of the reverse stock split.
This discussion addresses the U.S. federal income tax consequences only to a stockholder that is (i) a citizen or individual resident of the United States, (ii) a corporation organized in or under the laws of the United States or any state thereof or the District of Columbia or otherwise subject to U.S. federal income taxation on a net income basis in respect of the Common Stock, (iii) a trust if (1) a U.S. court is able to exercise primary supervision over administration of such trust and one or more U.S. persons have the authority to control all substantial decisions of the trust or (2) it has a valid election in place to be treated as a U.S. person, or (iv) an estate whose income is subject to U.S. federal income taxation regardless of its source. This discussion addresses only those stockholders who hold their pre-reverse stock split shares as “capital assets” as defined in the Code (generally, property held for investment), and will hold the shares received in the reverse stock split as capital assets. Further, it does not address any state, local, foreign or other income tax consequences, nor does it address the tax consequences to stockholders that are subject to special tax rules, such as, without limitation, stockholders who are subject to the alternative minimum tax, banks, insurance companies, regulated investment companies, personal holding companies, stockholders who are not “United States persons” as defined in Section 7701(a)(30) of the Code, U.S. persons whose functional currency is not the U.S. dollar, broker-dealers, tax-exempt entities, or S corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (or investors therein). If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds pre-reverse stock split shares of the Common Stock, the U.S. federal income tax treatment of a partner of the partnership will depend on the status of the partner and the activities of the partnership and upon certain determinations made at the partnership level. Partners in partnerships holding the Common Stock are urged to consult their own tax advisors about the U.S. federal income tax consequences of the reverse stock split.
Stockholders are advised to consult their own tax advisers regarding the U.S. federal income tax consequences of the reverse stock split in light of their personal circumstances and the consequences under state, local and foreign tax laws, and also as to any estate or gift tax considerations.
Exchange Pursuant to Reverse Stock Split
No gain or loss will be recognized by a stockholder upon such stockholder’s exchange of pre-reverse stock split shares for post-reverse stock split shares pursuant to the reverse stock split, except to the extent of cash, if any, received in lieu of fractional shares, further described in “-Cash in Lieu of Fractional Shares” below. The aggregate tax basis of the post-reverse stock split shares received in the reverse stock split, including any fractional share deemed to have been received, will be equal to the aggregate tax basis of the pre-reverse stock split shares exchanged therefor, and the holding period of the post-reverse stock split shares will include the holding period of the pre-reverse stock split shares.
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Cash in Lieu of Fractional Shares
A stockholder who receives cash in lieu of a fractional post-reverse stock split share should generally be treated as having received such fractional share pursuant to the reverse stock split and then as having exchanged such fractional share for cash in a redemption of such fractional share. The amount of any gain or loss should be equal to the difference between the ratable portion of the tax basis of the pre-reverse stock split shares exchanged in the reverse stock split that is allocated to such fractional share and the cash received in lieu thereof. In general, any such gain or loss will constitute a long-term capital gain or loss if the stockholder’s holding period for such pre-reverse stock split shares exceeds one year at the time of the reverse stock split. Deductibility of capital losses by holders is subject to limitations. Depending on a stockholder’s individual facts and circumstances, it is possible that cash received in lieu of a fractional share could be treated as a distribution under Section 301 of the Code, so stockholders should consult their own tax advisors as to that possibility and the resulting tax consequences to them in that event.
The Company will not recognize any gain or loss as a result of the reverse stock split.
THE BOARD RECOMMENDS THAT YOU VOTE “FOR” PROPOSAL 3.
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PROPOSAL 4

ADJOURNMENT OF ANNUAL MEETING
The Board has approved the submission to the stockholders of a proposal to approve one or more adjournments of the Annual Meeting in the event that there is not a sufficient number of votes at the Annual Meeting to approve Proposal 3. In order to permit proxies that have been timely received to be voted for such adjournments, we are submitting this proposal as a separate matter for your consideration. If it is necessary to adjourn the Annual Meeting, the adjournment is for a period of less than 30 days and the Record Date remains unchanged, no notice of the time and place of the reconvened meeting will be given to stockholders, other than an announcement made at the Annual Meeting.
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” PROPOSAL 4.
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ADDITIONAL INFORMATION
Delinquent Section 16(a) Reports
Section 16(a) of the Exchange Act requires that the Company’s directors, executive officers and persons who beneficially own more than 10% of a registered class of its equity securities, file with the SEC reports of ownership and changes in ownership of its common stock and other equity securities. Executive officers, directors and greater than 10% beneficial owners are required by SEC regulation to furnish the Company with copies of all Section 16(a) reports that they file. Based solely on the Company's review of such filed forms and representations from our directors and executive officers that no other forms were required, to our knowledge, other than a Form 4 filed by D. Gordon Strickland on February 2, 2022, which was filed two days after the required filing date, all of the Company's Directors and executive officers, and other persons who owned more than 10% of the Company's outstanding common stock, fully complied with the reporting requirements of Section 16(a) during fiscal year 2022.
Stockholder Proposals to be Presented at Next Annual Meeting
Requirements for Stockholder Proposals to be Brought Before an Annual Meeting. Our Second Amended and Restated Bylaws provide that for stockholder nominations to ourthe Board or other proposals to be considered at an annual meeting, the stockholder must give timely notice thereof in writing to the Secretary at NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, 19th Floor, Boston, Massachusetts, 02116.
All proposals of stockholders that are intended to be presented by such stockholder at an annual meeting of stockholders must be in writing and notice must be delivered to the Secretary at our principal executive offices not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting, except in the case that the date of the annual meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of the preceding year’s annual meeting, notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made.
To be timely for our company’s 2023 Annual Meeting2024 annual meeting of Stockholders,stockholders and to comply with the requirement Rule 14a-19 under the Exchange Act to be included under the universal proxy rules, a stockholder’s notice must be delivered to or mailed and received by our Secretary at our principal executive offices not earlier than the close of business on February 9, 202329, 2024 and not later than the close of business on March 12, 2023.30, 2024. A stockholder’s notice to the Secretary must set forth as to each matter the stockholder proposes to bring before the annual meeting the information required by applicable law and our Second Amended and Restated Bylaws. In no event will the public announcement of an adjournment or a postponement of our annual meeting commence a new time period for the giving of a stockholder’s notice as provided above.
Stockholders are also advised to review our Second Amended and Restated Bylaws, which contain additional requirements with respect to advance notice of stockholder proposals and director nominations.
Requirements for Stockholder Proposals to be Considered for Inclusion in our Proxy Materials. Stockholder proposals submitted pursuant to Rule 14a-8 under the Exchange Act and intended to be presented at our 20232024 annual meeting of stockholders must be received by us not later than January 18, 2023     in order to be considered for inclusion in our proxy materials for that meeting. A stockholder’s notice to the Secretary must set forth as to each matter the stockholder proposes to bring before the annual meeting the information required by applicable law and our Second Amended and Restated Bylaws.
Requirements for Stockholder Director Nominees to be Included under the Universal Proxy Rules. To comply with the universal proxy rule, stockholders who intend to solicit proxies in support of director nominees other than the company’s nominees for our 2023 annual meeting of stockholders must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act during the time period set forth above.
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Available Information
We will mail without charge, upon written request, a copy of our Annual Report on Form 10-K for the year ended December 31, 2022, including the financial statements and list of exhibits, and any exhibit specifically requested. Requests should be sent to:
NeuroBo Pharmaceuticals, Inc.,
200 Berkeley Street, 19th Floor, Boston, Massachusetts, 02116
Attn: Secretary
The Annual Report on Form 10-K is also available at http://neurobopharma.com under “Investors & News-Financial Information-Annual Reports”.
“Householding”—Stockholders-Stockholders Sharing the Same Address
The SEC has adopted rules that permit companies and intermediaries (such as brokers) to implement a delivery procedure called “householding.” Under this procedure, multiple stockholders who reside at the same address may receive a single copy of our Annual Report on Form 10-K and proxy materials unless the affected stockholder has provided other instructions. This procedure reduces printing costs and postage fees, and helps protect the environment as well.
We expect that a number of brokers with account holders who are our stockholders will be “householding” our Annual Report on Form 10-K and proxy materials. A single set of an Annual Report on Form 10-K and other proxy materials will be delivered to multiple stockholders sharing an address unless contrary instructions have been received from one or more of the affected stockholders. Once you have received notice from your broker that it will be “householding” communications to your address, “householding” will continue until you are notified otherwise or until you revoke your consent. Stockholders may revoke their consent at any time by contacting your broker.
Upon written or oral request, we will undertake to promptly deliver a separate copy of the Annual Report on Form 10-K and other proxy materials to any stockholder at a shared address to which a single copy of any of those documents was delivered. To receive a
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separate copy of the Annual Report on Form 10-K and other proxy materials now or in the future, you may write to NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, 19th Floor, Boston, Massachusetts, 02116, Attention: Adam Perlish or via email at info@neurobopharma.com, or call at (857) 702-9600.(800) 736-3001.
Any stockholders who share the same address and currently receive multiple copies of our Annual Report on Form 10-K and other proxy materials who wish to receive only one copy in the future can contact their bank, broker or other holder of record to request information about “householding” or our Director of Finance at the address or telephone number listed above.
OTHER MATTERS
Our Board of Directors does not know of any other matters to be brought before the Special Meeting. If any other matters not mentioned in this proxy statement are properly brought before the Special Meeting, the individuals named in the enclosed proxy intend to use their discretionary voting authority under the proxy to vote the proxy in accordance with their best judgment on those matters.
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INCORPORATION BY REFERENCE; WHERE YOU CAN FIND ADDITIONAL INFORMATIONOTHER MATTERS
The SEC allowsBoard does not presently intend to bring any other business before the Companymeeting, and, so far as is known to “incorporate by reference” certain information the Company files with it, which means that the Company can disclose important information to you by referring you to those documents. The information incorporated by reference is consideredBoard, no matters are to be partbrought before the meeting except as specified in the notice of this Proxy Statement,the meeting. As to any business that may arise and informationproperly come before the meeting, however, it is intended that proxies, in the Company files laterform enclosed, will be voted in respect thereof in accordance with the SEC will automatically update and supersede previously filed information, including information contained in this document. We are incorporating by referencejudgment of the following, which include further information concerning the transactions described in Proposal 1 and Proposal 2:
•
our Annual Report on Form 10-K for the fiscal year ended December 31, 2021, filed with the SEC on March 31, 2022;
•
our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2022 (filed with the SEC on May 13, 2022);
•
our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2022 (filed with the SEC on August 12, 2022);
•
our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2022 (filed with the SEC on November 14, 2022);
•
our Current Reports on Form 8-K filed with the SEC on January 28, 2022, September 12, 2022, September 14, 2022, September 29, 2022, October 24, 2022, November 4, 2022 and November 8, 2022 excluding any information deemed “furnished” and not “filed” pursuant to Item 2.02 or 7.01 of Form 8-K and exhibits filed on such form that are related to such item; and
•
the description of our Common Stock contained in our registration statement on Form 8-A filed on June 20, 2016, including any amendments or reports filed for the purpose of updating such description.
Any person, including any beneficial owner, to whom this Proxy Statement is delivered may request copies of reports, proxy statements or other information concerning the Company (including the documents incorporated by reference herein) without charge within one business day of receipt ofpersons voting such request, by written or oral request directed to our Corporate Secretary at NeuroBo Pharmaceuticals, Inc., 200 Berkeley Street, Office 19th Floor, Boston, Massachusetts 02116 or by telephone at (857) 702-9600. A request for copies of reports, proxy statements or other information concerning the Company (including the documents incorporated by reference herein) must set forth a good-faith representation that the requesting party was either a holder of record or a beneficial owner of our common stock on November 3, 2022.
The Company files reports, proxy statements and other information with the SEC as required by the Exchange Act. You can review the Company’s electronically filed reports, proxy and information statements on the SEC’s web site at http://www.sec.gov or on the Company’s web site at https://www.neurobopharma.com/. Information included on the Company’s web site is not a part of this proxy statement.
You should rely only on the information contained in this proxy statement or on information to which the Company has referred you. The Company has not authorized anyone else to provide you with any information.proxies.
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AppendixAPPENDIX A
CERTIFICATE OF AMENDMENT
TO THE
CERTIFICATE OF INCORPORATION
OF
NEUROBO PHARMACEUTICALS, INC.
2022 EQUITY INCENTIVE PLANNEUROBO PHARMACEUTICALS, INC. (the “Corporation”), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify that:
ADOPTED BY THE BOARD OF DIRECTORS: November 8, 2022
APPROVED BY THE STOCKHOLDERS: December [•], 2022
1. GENERAL.
(a) Successor to and Continuation of Prior Plan.FIRST: The Plan is the successor to and continuationname of the Prior Plan. AsCorporation is NeuroBo Pharmaceuticals, Inc.
SECOND: The Corporation was incorporated under the name Gemphire Therapeutics Inc. pursuant to an original Certificate of Incorporation filed with the Secretary of State of the Effective Date, (i) no additional awards may be granted underState of Delaware (the “Delaware Secretary”) on October 30, 2014. The Certificate of Incorporation was amended by a Certificate of Amendment filed with the Prior Plan; (ii) the Prior Plan’s Available Reserve plus any Returning Shares will become available for issuanceDelaware Secretary on December 9, 2014. The Certificate of Incorporation was amended and restated pursuant to Awards granted under this Plan; and (iii) all outstanding awards granted under the Prior Plan will remain subject to the terms and conditions of an Amended and Restated Certificate of Incorporation that was filed with the Prior Plan (except to the extent such outstanding awards result in Returning Shares that become available for issuanceDelaware Secretary on March 31, 2015, was further amended and restated pursuant to Awards granted under this Plan). All Awards granted under this Plan will be subject to the terms and conditions of a Second Amended and Restated Certificate of Incorporation that was filed with the Delaware Secretary on April 26, 2016, was further amended and restated pursuant to the terms and conditions of a Third Amended and Restated Certificate of Incorporation that was filed with the Delaware Secretary on August 10, 2016, was amended on December 30, 2019, was amended on December 31, 2019 to change its name to NeuroBo Pharmaceuticals, Inc. and was amended on September 12, 2022 to authorize a reverse stock split.
THIRD: The Board of Directors of the Corporation has duly adopted resolutions proposing and declaring advisable that the Certificate of Incorporation be amended as set forth herein and calling for the consideration and approval thereof at a meeting of the stockholders of the Corporation.
FOURTH: The Certificate of Incorporation is hereby amended by deleting the Paragraph A of ARTICLE IV in its entirety and inserting the following in lieu thereof:
“The Corporation is authorized to issue two classes of stock to be designated, respectively, “Common Stock” and “Preferred Stock.” The total number of shares that the Corporation is authorized to issue is 110,000,000 shares. 100,000,000 shares shall be Common Stock and 10,000,000 shares shall be Preferred Stock, each having a par value of $0.001 per share. Upon the filing and effectiveness (the “Effective Time”) pursuant to the DGCL of this Plan.
(b) Plan Purpose. The Company, by meansCertificate of Amendment to the Certificate of Incorporation, each [•] shares of the Plan, seeksCorporation’s Common Stock issued and outstanding immediately prior to securethe Effective Time shall, automatically and retainwithout any action on the services of Employees, Directors and Consultants, to provide incentives for such persons to exert maximum efforts for the successpart of the CompanyCorporation or respective holders thereof, be combined and any Affiliateconverted into one (1) validly issued, fully paid and non-assessable share of Common Stock (the “Reverse Split”); provided, however, that the Corporation shall issue no fractional shares as a result of the actions set forth herein but shall instead pay to providethe holder of such fractional share a meanssum in cash equal to such fraction multiplied by which such persons may be given an opportunity to benefit from increases in valuethe closing sales price of the Common Stock throughas reported on The Nasdaq Capital Market on the granting of Awards.last trading day before the Effective Time (as adjusted to give effect to the Reverse Split).”
(c) Available Awards.FIFTH: The Plan provides for the grantPursuant to a resolution of the following Awards: (i) Incentive Stock Options; (ii) Nonstatutory Stock Options; (iii) SARs; (iv) Restricted Stock Awards; (v) RSU Awards; (vi) Performance Awards; and (vii) Other Awards.
(d) Adoption Date; Effective Date. The Plan will come into existence onBoard of Directors of the Adoption Date, but no Award may be granted priorCorporation, this Certificate of Amendment to the Effective Date.
2. SHARES SUBJECT TO THE PLAN.
(a) Share Reserve. SubjectCertificate of Incorporation was submitted to adjustmentthe stockholders of the Corporation for their approval and was duly adopted in accordance with the provisions of Section 2(c) and any adjustments as necessary to implement any Capitalization Adjustments, the aggregate number of shares of Common Stock that may be issued pursuant to Awards will not exceed the sum of (i) 4,910,073 shares, plus (ii) the Prior Plan’s Available Reserve, plus (iii) the number of Returning Shares, if any, as such shares become available from time to time. In addition, subject to any adjustments as necessary to implement any Capitalization Adjustments, such aggregate number of shares of Common Stock will automatically increase on January 1st of each year for a period of five years commencing on January 1, 2023 and ending on (and including) January 1, 2027, to an amount equal to 5%242 of the Fully Diluted SharesDGCL.
SIXTH: This Certificate of Amendment to the Certificate of Incorporation shall be effective as of [•] p.m. Eastern time on and as of the last daydate of filing of this Certificate of Amendment with the Secretary of State of the preceding calendar year; provided, however that the Board may act prior to the effective dateState of any such annual increase to provide that the increase for such year will be a lesser number of shares of Common Stock.
(b) Aggregate Incentive Stock Option Limit. Notwithstanding anything to the contrary in Section 2(a) and subject to any adjustments as necessary to implement any Capitalization Adjustments, the aggregate maximum number of shares of Common Stock that may be issued pursuant to the exercise of Incentive Stock Options is 15,000,000 shares.
(c) Share Reserve Operation.
(i) Limit Applies to Common Stock Issued Pursuant to Awards. For clarity, the Share Reserve is a limit on the number of shares of Common Stock that may be issued pursuant to Awards and does not limit the granting of Awards, except that the Company will keep available at all times the number of shares of Common Stock reasonably required to satisfy its obligations to issue shares pursuant to such Awards. Shares may be issued in connection with a merger or acquisition as permitted by, as applicable, Nasdaq Listing Rule 5635(c), NYSE Listed Company Manual Section 303A.08, NYSE American Company Guide Section 711 or other applicable rule, and such issuance will not reduce the number of shares available for issuance under the Plan.
(ii) Actions that Do Not Constitute Issuance of Common Stock and Do Not Reduce Share Reserve. The following actions do not result in an issuance of shares under the Plan and accordingly doDelaware.
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not reduce the numberIN WITNESS WHEREOF, NeuroBo Pharmaceuticals, Inc. has caused this Certificate of shares subjectAmendment to the Share Reserve and available for issuance under the Plan: (1) the expiration or termination of any portion of an Award without the shares coveredbe executed by such portion of the Award having been issued; (2) the settlement of any portion of an Award in cash (i.e., the Participant receives cash rather than Common Stock); (3) the withholding of shares that would otherwise be issued by the Company to satisfy the exercise, strike or purchase price of an Award; or (4) the withholding of shares that would otherwise be issued by the Company to satisfy a tax withholding obligation in connection with an Award.
(iii) Reversion of Previously Issued Shares of Common Stock to Share Reserve. The following shares of Common Stock previously issued pursuant to an Award and accordingly initially deducted from the Share Reserve will be added back to the Share Reserve and again become available for issuance under the Plan: (1) any shares that are forfeited back to or repurchased by the Company because of a failure to meet a contingency or condition required for the vesting of such shares; (2) any shares that are reacquired by the Company to satisfy the exercise, strike or purchase price of an Award; and (3) any shares that are reacquired by the Company to satisfy a tax withholding obligation in connection with an Award.
3. ELIGIBILITY AND LIMITATIONS.
(a) Eligible Award Recipients. Subject to the terms of the Plan, Employees, Directors and Consultants are eligible to receive Awards.
(b) Specific Award Limitations.
(i) Limitationsits duly authorized officer on Incentive Stock Option Recipients. Incentive Stock Options may be granted only to Employees of the Company or a “parent corporation” or “subsidiary corporation” thereof (as such terms are defined in Sections 424(e) and (f) of the Code).
(ii) Incentive Stock Option $100,000 Limitation. To the extent that the aggregate Fair Market Value (determined at the time of grant) of Common Stock with respect to which Incentive Stock Options are exercisable for the first time by any Optionholder during any calendar year (under all plans of the Company and any Affiliates) exceeds $100,000 (or such other limit established in the Code) or otherwise does not comply with the rules governing Incentive Stock Options, the Options or portions thereof that exceed such limit (according to the order in which they were granted) or otherwise do not comply with such rules will be treated as Nonstatutory Stock Options, notwithstanding any contrary provision of the applicable Option Agreement(s).
(iii) Limitations on Incentive Stock Options Granted to Ten Percent Stockholders. A Ten Percent Stockholder may not be granted an Incentive Stock Option unless (i) the exercise price of such Option is at least 110% of the Fair Market Value on the date of grant of such Option and (ii) the Option is not exercisable after the expiration of five years from the date of grant of such Option.
(iv) Limitations on Nonstatutory Stock Options and SARs. Nonstatutory Stock Options and SARs may not be granted to Employees, Directors and Consultants who are providing Continuous Service only to any “parent” of the Company (as such term is defined in Rule 405) unless the stock underlying such Awards is treated as “service recipient stock” under Section 409A because the Awards are granted pursuant to a corporate transaction (such as a spin off transaction) or unless such Awards otherwise comply with the distribution requirements of Section 409A.
(c) Aggregate Incentive Stock Option Limit. The aggregate maximum number of shares of the Common Stock that may be issued pursuant to the exercise of Incentive Stock Options is the number of shares specified in Section 2(b).
(d) Non-Employee Director Compensation Limit. The aggregate value of all compensation granted or paid, as applicable, to any individual for service as a Non-Employee Director with respect to any calendar year, including Awards granted and cash fees paid by the Company to such Non-Employee Director, will not exceed (i) $750,000 in total value or (ii) in the event such Non-Employee Director is first appointed or elected to the Board during such calendar year, $1,000,000 in total value, in each case calculating the value of any equity awards based on the grant date fair value of such equity awards for financial reporting purposes. The limitations in this Section 3(d) shall apply beginning with the first calendar year that commences following the Effective Date.day of , 2023.
NEUROBO PHARMACEUTICALS, INC.
​​
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By:
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Name:
​​
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Title:
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4. OPTIONS AND STOCK APPRECIATION RIGHTS.
Each Option and SAR will have such terms and conditions as determined by the Board. Each Option will be designated in writing as an Incentive Stock Option or Nonstatutory Stock Option at the time of grant; provided, however, that if an Option is not so designated, then such Option will be a Nonstatutory Stock Option. The shares purchased upon exercise of each type of Option will be accounted for separately. Each SAR will be denominated in shares of the Common Stock equivalents. The terms and conditions of separate Options and SARs need not be identical; provided, however, that each Option Agreement and SAR Agreement will conform (through incorporation of provisions hereof by reference in the Award Agreement or otherwise) to the substance of each of the following provisions:
(a) Term. Subject to Section 3(b) regarding Incentive Stock Options granted to Ten Percent Stockholders, no Option or SAR will be exercisable after the expiration of ten years from the date of grant of such Award or such shorter period specified in the Award Agreement.
(b) Exercise or Strike Price. Subject to Section 3(b) regarding Ten Percent Stockholders, the exercise or strike price of each Option or SAR will not be less than 100% of the Fair Market Value on the date of grant of such Award. Notwithstanding the foregoing, an Option or SAR may be granted with an exercise or strike price lower than 100% of the Fair Market Value on the date of grant of such Award if such Award is granted pursuant to an assumption of or substitution for another option or stock appreciation right pursuant to a Corporate Transaction and in a manner consistent with the provisions of Sections 409A and, if applicable, 424(a) of the Code.
(c) Exercise Procedure and Payment of Exercise Price for Options. In order to exercise an Option, the Participant must provide notice of exercise to the Plan Administrator in accordance with the procedures specified in the Option Agreement or otherwise provided by the Company. The Board has the authority to grant Options that do not permit all of the following methods of payment (or otherwise restrict the ability to use certain methods) and to grant Options that require the consent of the Company to utilize a particular method of payment. The exercise price of an Option may be paid, to the extent permitted by Applicable Law and as determined by the Board, by one or more of the following methods of payment to the extent set forth in the Option Agreement:
(i) by cash or check, wire, bank draft or money order (or an electronic equivalent thereof) payable to the Company;
(ii) pursuant to a “cashless exercise” program developed under Regulation T as promulgated by the Federal Reserve Board that, prior to the issuance of the Common Stock subject to the Option, results in either the receipt of cash (or check) by the Company or the receipt of irrevocable instructions to pay the exercise price to the Company from the sales proceeds;
(iii) by delivery to the Company (either by actual delivery or attestation) of shares of Common Stock that are already owned by the Participant free and clear of any liens, claims, encumbrances or security interests, with a Fair Market Value on the date of exercise that does not exceed the exercise price, provided that (1) at the time of exercise the Common Stock is publicly traded, (2) any remaining balance of the exercise price not satisfied by such delivery is paid by the Participant in cash or other permitted form of payment, (3) such delivery would not violate any Applicable Law or agreement restricting the redemption of the Common Stock, (4) any certificated shares are endorsed or accompanied by an executed assignment separate from certificate, and (5) such shares have been held by the Participant for any minimum period necessary to avoid adverse accounting treatment as a result of such delivery;
(iv) by a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Common Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value on the date of exercise that does not exceed the exercise price, provided that (1) such shares used to pay the exercise price will not be exercisable thereafter and (2) any remaining balance of the exercise price not satisfied by such net exercise is paid by the Participant in cash or other permitted form of payment; or
(v) in any other form of consideration that may be acceptable to the Board and permissible under Applicable Law.
(d) Exercise Procedure and Payment of Appreciation Distribution for SARs. In order to exercise any SAR, the Participant must provide notice of exercise to the Plan Administrator in accordance with the SAR
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Agreement. The appreciation distribution payable to a Participant upon the exercise of a SAR will not be greater than an amount equal to the excess of (i) the aggregate Fair Market Value on the date of exercise of a number of shares of the Common Stock equal to the number of the Common Stock equivalents that are vested and being exercised under such SAR, over (ii) the strike price of such SAR. Such appreciation distribution may be paid to the Participant in the form of the Common Stock or cash (or any combination of the Common Stock and cash) or in any other form of payment, as determined by the Board and specified in the SAR Agreement.
(e) Transferability. Options and SARs may not be transferred to third party financial institutions for value. The Board may impose such additional limitations on the transferability of an Option or SAR as it determines. In the absence of any such determination by the Board, the following restrictions on the transferability of Options and SARs will apply, provided that except as explicitly provided herein, neither an Option nor a SAR may be transferred for consideration and provided, further, that if an Option is an Incentive Stock Option, such Option may be deemed to be a Nonstatutory Stock Option as a result of such transfer:
(i) Restrictions on Transfer. An Option or SAR will not be transferable, except by will or by the laws of descent and distribution, and will be exercisable during the lifetime of the Participant only by the Participant; provided, however, that the Board may permit transfer of an Option or SAR in a manner that is not prohibited by applicable tax and securities laws upon the Participant’s request, including to a trust if the Participant is considered to be the sole beneficial owner of such trust (as determined under Section 671 of the Code and applicable state law) while such Option or SAR is held in such trust, provided that the Participant and the trustee enter into a transfer and other agreements required by the Company.
(ii) Domestic Relations Orders. Notwithstanding the foregoing, subject to the execution of transfer documentation in a format acceptable to the Company and subject to the approval of the Board or a duly authorized Officer, an Option or SAR may be transferred pursuant to a domestic relations order.
(f) Vesting. The Board may impose such restrictions on or conditions to the vesting and/or exercisability of an Option or SAR as determined by the Board. Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate, vesting of Options and SARs will cease upon termination of the Participant’s Continuous Service.
(g) Termination of Continuous Service for Cause. Except as explicitly otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate, if a Participant’s Continuous Service is terminated for Cause, the Participant’s Options and SARs will terminate and be forfeited immediately upon such termination of Continuous Service, and the Participant will be prohibited from exercising any portion (including any vested portion) of such Awards on and after the date of such termination of Continuous Service and the Participant will have no further right, title or interest in such forfeited Award, the shares of Common Stock subject to the forfeited Award, or any consideration in respect of the forfeited Award.
(h) Post-Termination Exercise Period Following Termination of Continuous Service for Reasons Other than Cause. Subject to Section 4(i), if a Participant’s Continuous Service terminates for any reason other than for Cause, the Participant may exercise their Option or SAR to the extent vested, but only within the following period of time or, if applicable, such other period of time provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate; provided, however, that in no event may such Award be exercised after the expiration of its maximum term (as set forth in Section 4(a)):
(i) three months following the date of such termination if such termination is a termination without Cause (other than any termination due to the Participant’s Disability or death);
(ii) 12 months following the date of such termination if such termination is due to the Participant’s Disability;
(iii) 18 months following the date of such termination if such termination is due to the Participant’s death; or
(iv) 18 months following the date of the Participant’s death if such death occurs following the date of such termination but during the period such Award is otherwise exercisable (as provided in (i) or (ii) above).
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Following the date of such termination, to the extent the Participant does not exercise such Award within the applicable Post-Termination Exercise Period (or, if earlier, prior to the expiration of the maximum term of such Award), such unexercised portion of the Award will terminate, and the Participant will have no further right, title or interest in the terminated Award, the shares of Common Stock subject to the terminated Award, or any consideration in respect of the terminated Award.
(i) Restrictions on Exercise; Extension of Exercisability. A Participant may not exercise an Option or SAR at any time that the issuance of shares of Common Stock upon such exercise would violate Applicable Law. Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate, if a Participant’s Continuous Service terminates for any reason other than for Cause and, at any time during the last thirty days of the applicable Post-Termination Exercise Period: (i) the exercise of the Participant’s Option or SAR would be prohibited solely because the issuance of shares of Common Stock upon such exercise would violate Applicable Law, or (ii) the immediate sale of any shares of Common Stock issued upon such exercise would violate the Company’s Trading Policy, then the applicable Post-Termination Exercise Period will be extended to the last day of the calendar month that commences following the date the Award would otherwise expire, with an additional extension of the exercise period to the last day of the next calendar month to apply if any of the foregoing restrictions apply at any time during such extended exercise period, generally without limitation as to the maximum permitted number of extensions; provided, however, that in no event may such Award be exercised after the expiration of its maximum term (as set forth in Section 4(a)).
(j) Non-Exempt Employees. No Option or SAR, whether or not vested, granted to an Employee who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, will be first exercisable for any shares of Common Stock until at least six months following the date of grant of such Award. Notwithstanding the foregoing, in accordance with the provisions of the Worker Economic Opportunity Act, any vested portion of such Award may be exercised earlier than six months following the date of grant of such Award in the event of (i) such Participant’s death or Disability, (ii) a Corporate Transaction in which such Award is not assumed, continued or substituted, (iii) a Change in Control, or (iv) such Participant’s retirement (as such term may be defined in the Award Agreement or another applicable agreement or, in the absence of any such definition, in accordance with the Company’s then current employment policies and guidelines). This Section 4(j) is intended to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting of an Option or SAR will be exempt from their regular rate of pay.
(k) Whole Shares. Options and SARs may be exercised only with respect to whole shares of the Common Stock or their equivalents.
5. AWARDS OTHER THAN OPTIONS AND STOCK APPRECIATION RIGHTS.
(a) Restricted Stock Awards and RSU Awards. Each Restricted Stock Award and RSU Award will have such terms and conditions as determined by the Board; provided, however, that each Restricted Stock Award Agreement and RSU Award Agreement will conform (through incorporation of the provisions hereof by reference in the Award Agreement or otherwise) to the substance of each of the following provisions:
(i) Form of Award.
(1) RSAs. To the extent consistent with the Company’s Bylaws, at the Board’s election, shares of the Common Stock subject to a Restricted Stock Award may be (A) held in book entry form subject to the Company’s instructions until such shares become vested or any other restrictions lapse, or (B) evidenced by a certificate, which certificate will be held in such form and manner as determined by the Board. Unless otherwise determined by the Board, a Participant will have voting and other rights as a stockholder of the Company with respect to any shares subject to a Restricted Stock Award.
(2) RSUs. An RSU Award represents a Participant’s right to be issued on a future date the number of shares of the Common Stock that is equal to the number of restricted stock units subject to the RSU Award. As a holder of an RSU Award, a Participant is an unsecured creditor of the Company with respect to the Company’s unfunded obligation, if any, to issue shares of the Common Stock in settlement of such Award and nothing contained in the Plan or any RSU Agreement, and no action taken pursuant to its provisions, will create or be construed to create a trust of any kind or a
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fiduciary relationship between a Participant and the Company or an Affiliate or any other person. A Participant will not have voting or any other rights as a stockholder of the Company with respect to any RSU Award (unless and until shares are actually issued in settlement of a vested RSU Award).
(ii) Consideration.
(1) RSA. A Restricted Stock Award may be granted in consideration for (A) cash or check, wire, bank draft or money order payable to the Company, (B) past services to the Company or an Affiliate, or (C) any other form of consideration (including future services)as the Board may determine and permissible under Applicable Law.
(2) RSU. Unless otherwise determined by the Board at the time of grant, an RSU Award will be granted in consideration for the Participant’s services to the Company or an Affiliate, such that the Participant will not be required to make any payment to the Company (other than such services) with respect to the grant or vesting of the RSU Award, or the issuance of any shares of the Common Stock pursuant to the RSU Award. If, at the time of grant, the Board determines that any consideration must be paid by the Participant (in a form other than the Participant’s services to the Company or an Affiliate) upon the issuance of any shares of the Common Stock in settlement of the RSU Award, such consideration may be paid in any form of consideration as the Board may determine and permissible under Applicable Law.
(iii) Vesting. The Board may impose such restrictions on or conditions to the vesting of a Restricted Stock Award or RSU Award as determined by the Board. Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate, vesting of Restricted Stock Awards and RSU Awards will cease upon termination of the Participant’s Continuous Service.
(iv) Termination of Continuous Service. Except as otherwise provided in the Award Agreement or other written agreement between a Participant and the Company or an Affiliate, if a Participant’s Continuous Service terminates for any reason, (1) the Company may receive through a forfeiture condition or a repurchase right any or all of the shares of the Common Stock held by the Participant under their Restricted Stock Award that have not vested as of the date of such termination as set forth in the Restricted Stock Award Agreement and (2) any portion of their RSU Award that has not vested will be forfeited upon such termination and the Participant will have no further right, title or interest in the RSU Award, the shares of the Common Stock issuable pursuant to the RSU Award, or any consideration in respect of the RSU Award.
(v) Dividends and Dividend Equivalents. Dividends or dividend equivalents may be paid or credited, as applicable, with respect to any shares of the Common Stock subject to a Restricted Stock Award or RSU Award, as determined by the Board and specified in the Award Agreement).
(vi) Settlement of RSU Awards. An RSU Award may be settled by the issuance of shares of the Common Stock or cash (or any combination thereof) or in any other form of payment, as determined by the Board and specified in the RSU Award Agreement. At the time of grant, the Board may determine to impose such restrictions or conditions that delay such delivery to a date following the vesting of the RSU Award.
(b) Performance Awards. With respect to any Performance Award, the length of any Performance Period, the Performance Goals to be achieved during the Performance Period, the other terms and conditions of such Award, and the measure of whether and to what degree such Performance Goals have been attained will be determined by the Board.
(c) Other Awards. Other forms of Awards valued in whole or in part by reference to, or otherwise based on, the Common Stock, including the appreciation in value thereof (e.g., options or stock rights with an exercise price or strike price less than 100% of the Fair Market Value at the time of grant) may be granted either alone or in addition to Awards provided for under Section 4 and the preceding provisions of this Section 5. Subject to the provisions of the Plan, the Board will have sole and complete discretion to determine the persons to whom and the time or times at which such Other Awards will be granted, the number of shares of the Common Stock (or the cash equivalent thereof) to be granted pursuant to such Other Awards and all other terms and conditions of such Other Awards.
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6. ADJUSTMENTS UPON CHANGES IN COMMON STOCK; OTHER CORPORATE EVENTS.
(a) Capitalization Adjustments. In the event of a Capitalization Adjustment, the Board shall appropriately and proportionately adjust: (i) the class(es) and maximum number of shares of the Common Stock subject to the Plan and the maximum number of shares by which the Share Reserve may annually increase pursuant to Section 2(a); (ii) the class(es) and maximum number of shares that may be issued pursuant to the exercise of Incentive Stock Options pursuant to Section 2(b); and (iii) the class(es) and number of securities and exercise price, strike price or purchase price of the Common Stock subject to outstanding Awards. The Board shall make such adjustments, and its determination shall be final, binding and conclusive. Notwithstanding the foregoing, no fractional shares or rights for fractional shares of the Common Stock shall be created in order to implement any Capitalization Adjustment. The Board shall determine an appropriate equivalent benefit, if any, for any fractional shares or rights to fractional shares that might be created by the adjustments referred to in the preceding provisions of this Section 6.
(b) Dissolution or Liquidation. Except as otherwise provided in the Award Agreement, in the event of a dissolution or liquidation of the Company, all outstanding Awards (other than Awards consisting of vested and outstanding shares of the Common Stock not subject to a forfeiture condition or the Company’s right of repurchase) will terminate immediately prior to the completion of such dissolution or liquidation, and the shares of the Common Stock subject to the Company’s repurchase rights or subject to a forfeiture condition may be repurchased or reacquired by the Company notwithstanding the fact that the holder of such Award is providing Continuous Service; provided, however, that the Board may determine to cause some or all Awards to become fully vested, exercisable and/or no longer subject to repurchase or forfeiture (to the extent such Awards have not previously expired or terminated) before the dissolution or liquidation is completed but contingent on its completion.
(c) Corporate Transaction. The following provisions will apply to Awards in the event of a Corporate Transaction, except as set forth in Section 11, unless otherwise provided in the instrument evidencing the Award or any other written agreement between the Company or any Affiliate and the Participant or unless otherwise expressly provided by the Board at the time of grant of an Award.
(i) Awards May Be Assumed. In the event of a Corporate Transaction, any surviving or acquiring corporation (or the surviving or acquiring corporation’s parent company) may assume or continue any or all Awards outstanding under the Plan or may substitute similar awards for Awards outstanding under the Plan (including but not limited to awards to acquire the same consideration paid to the stockholders of the Company pursuant to the Corporate Transaction), and any reacquisition or repurchase rights held by the Company in respect of the Common Stock issued pursuant to Awards may be assigned by the Company to the successor of the Company (or the successor’s parent company, if any), in connection with such Corporate Transaction. A surviving or acquiring corporation (or its applicable parent) may choose to assume or continue only a portion of an Award or substitute a similar award for only a portion of an Award, or may choose to assume or continue the Awards held by some, but not all Participants. The terms of any assumption, continuation or substitution will be set by the Board.
(ii) Awards Held by Current Participants. In the event of a Corporate Transaction in which the surviving or acquiring corporation (or its parent company) does not assume or continue outstanding Awards or substitute similar awards for such outstanding Awards, then with respect to Awards that have not been assumed, continued or substituted and that are held by Participants whose Continuous Service has not terminated prior to the effective time of the Corporate Transaction (referred to as the “Current Participants”), the vesting of such Awards (and, with respect to Options and Stock Appreciation Rights, the time when such Awards may be exercised) will be accelerated in full to a date prior to the effective time of such Corporate Transaction (contingent upon the effectiveness of the Corporate Transaction) that the Board determines (or, if the Board does not determine such a date, to the date that is five (5) days prior to the effective time of the Corporate Transaction). Awards so accelerated will terminate if not exercised (if applicable) at or prior to the effective time of the Corporate Transaction, and any reacquisition or repurchase rights held by the Company with respect to such Awards will lapse (contingent upon the effectiveness of the Corporate Transaction). With respect to the vesting of Performance Awards that (a) will accelerate upon the occurrence of a Corporate Transaction pursuant to this subsection (ii) and (b) have multiple vesting levels depending on the level of performance, unless otherwise provided in the Award Agreement or unless otherwise provided by the Board, the vesting of such Performance Awards will
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accelerate at 100% of the target level upon the occurrence of a Corporate Transaction in which the Awards are not assumed, continued or substituted for in accordance with Section 6(c)(i). With respect to the vesting of cash-settled Awards that will accelerate upon the occurrence of a Corporate Transaction pursuant to this subsection (ii), such cash payment will be made no later than 30 days following the occurrence of the Corporate Transaction or such later date as required by Section 409A of the Code.
(iii) Awards Held by Persons other than Current Participants. In the event of a Corporate Transaction in which the surviving or acquiring corporation (or its parent company) does not assume or continue such outstanding Awards or substitute similar awards for such outstanding Awards, then with respect to Awards that have not been assumed, continued or substituted and that are held by persons other than Current Participants, such Awards will terminate if not exercised (if applicable) prior to the occurrence of the Corporate Transaction; provided, however, that any reacquisition or repurchase rights held by the Company with respect to such Awards will not terminate and may continue to be exercised notwithstanding the Corporate Transaction.
(iv) Payment for Awards in Lieu of Exercise. Notwithstanding the foregoing, in the event an Award will terminate if not exercised prior to the effective time of a Corporate Transaction, the Board may provide, in its sole discretion, that the holder of such Award may not exercise such Award but will receive a payment, in such form as may be determined by the Board, equal in value, at the effective time, to the excess, if any, of (1) the value of the property the Participant would have received upon the exercise of the Award (including, at the discretion of the Board, any unvested portion of such Award), over (2) any exercise price payable by such holder in connection with such exercise.
(d) Appointment of Stockholder Representative. As a condition to the receipt of an Award under this Plan, a Participant will be deemed to have agreed that the Award will be subject to the terms of any agreement governing a Corporate Transaction involving the Company, including, without limitation, a provision for the appointment of a stockholder representative that is authorized to act on the Participant’s behalf with respect to any escrow, indemnities and any contingent consideration.
(e) No Restriction on Right to Undertake Transactions. The grant of any Award under the Plan and the issuance of shares pursuant to any Award does not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, rights or options to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for the Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
7. ADMINISTRATION.
(a) Administration by Board. The Board will administer the Plan unless and until the Board delegates administration of the Plan to a Committee or Committees, as provided in subsection (c) below.
(b) Powers of Board. The Board will have the power, subject to, and within the limitations of, the express provisions of the Plan:
(i) To determine from time to time (1) which of the persons eligible under the Plan will be granted Awards; (2) when and how each Award will be granted; (3) what type or combination of types of Award will be granted; (4) the provisions of each Award granted (which need not be identical), including the time or times when a person will be permitted to receive an issuance of the Common Stock or other payment pursuant to an Award; (5) the number of shares of the Common Stock or cash equivalent with respect to which an Award will be granted to each such person; (6) the Fair Market Value applicable to an Award; and (7) the terms of any Performance Award that is not valued in whole or in part by reference to, or otherwise based on, the Common Stock, including the amount of cash payment or other property that may be earned and the timing of payment.
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(ii) To construe and interpret the Plan and Awards granted under it, and to establish, amend and revoke rules and regulations for its administration. The Board, in the exercise of this power, may correct any defect, omission or inconsistency in the Plan or in any Award Agreement, in a manner and to the extent it deems necessary or expedient to make the Plan or Award fully effective.
(iii) To settle all controversies regarding the Plan and Awards granted under it.
(iv) To accelerate the time at which an Award may first be exercised or the time during which an Award or any part thereof will vest, notwithstanding the provisions in the Award Agreement stating the time at which it may first be exercised or the time during which it will vest.
(v) To prohibit the exercise of any Option, SAR or other exercisable Award during a period of up to 30 days prior to the consummation of any pending stock dividend, stock split, combination or exchange of shares, merger, consolidation or other distribution (other than normal cash dividends) of Company assets to stockholders, or any other change affecting the shares of the Common Stock or the share price of the Common Stock including any Corporate Transaction, for reasons of administrative convenience.
(vi) To suspend or terminate the Plan at any time. Suspension or termination of the Plan will not Materially Impair rights and obligations under any Award granted while the Plan is in effect except with the written consent of the affected Participant.
(vii) To amend the Plan in any respect the Board deems necessary or advisable; provided, however, that stockholder approval will be required for any amendment to the extent required by Applicable Law. Except as provided above, rights under any Award granted before amendment of the Plan will not be Materially Impaired by any amendment of the Plan unless (1) the Company requests the consent of the affected Participant, and (2) such Participant consents in writing.
(viii) To submit any amendment to the Plan for stockholder approval.
(ix) To approve forms of Award Agreements for use under the Plan and to amend the terms of any one or more Awards, including, but not limited to, amendments to provide terms more favorable to the Participant than previously provided in the Award Agreement, subject to any specified limits in the Plan that are not subject to Board discretion; provided however, that, a Participant’s rights under any Award will not be Materially Impaired by any such amendment unless (1) the Company requests the consent of the affected Participant, and (2) such Participant consents in writing.
(x) Generally, to exercise such powers and to perform such acts as the Board deems necessary or expedient to promote the best interests of the Company and that are not in conflict with the provisions of the Plan or Awards.
(xi) To adopt such procedures and sub-plans as are necessary or appropriate to permit and facilitate participation in the Plan by, or take advantage of specific tax treatment for Awards granted to, Employees, Directors or Consultants who are foreign nationals or employed outside the United States (provided that Board approval will not be necessary for immaterial modifications to the Plan or any Award Agreement to ensure or facilitate compliance with the laws of the relevant foreign jurisdiction).
(xii) To effect, at any time and from time to time, subject to the consent of any Participant whose Award is Materially Impaired by such action, (1) the reduction of the exercise price (or strike price) of any outstanding Option or SAR; (2) the cancellation of any outstanding Option or SAR and the grant in substitution therefor of (A) a new Option, SAR, Restricted Stock Award, RSU Award or Other Award, under the Plan or another equity plan of the Company, covering the same or a different number of shares of the Common Stock, (B) cash and/or (C) other valuable consideration (as determined by the Board); or (3) any other action that is treated as a repricing under generally accepted accounting principles.
(c) Delegation to Committee.
(i) General. The Board may delegate some or all of the administration of the Plan to a Committee or Committees. If administration of the Plan is delegated to a Committee, the Committee will have, in connection with the administration of the Plan, the powers theretofore possessed by the Board that have been delegated to the Committee, including the power to delegate to another Committee or a subcommittee of the Committee any of the administrative powers the Committee is authorized to exercise (and references
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in this Plan to the Board will thereafter be to the Committee or subcommittee), subject, however, to such resolutions, not inconsistent with the provisions of the Plan, as may be adopted from time to time by the Board. Each Committee may retain the authority to concurrently administer the Plan with Committee or subcommittee to which it has delegated its authority hereunder and may, at any time, revest in such Committee some or all of the powers previously delegated. The Board may retain the authority to concurrently administer the Plan with any Committee and may, at any time, revest in the Board some or all of the powers previously delegated.
(ii) Rule 16b-3 Compliance. To the extent an Award is intended to qualify for the exemption from Section 16(b) of the Exchange Act that is available under Rule 16b-3 under the Exchange Act, the Award will be granted by the Board or a Committee that consists solely of two or more Non-Employee Directors, as determined under Rule 16b-3(b)(3) under the Exchange Act and thereafter any action establishing or modifying the terms of the Award will be approved by the Board or a Committee meeting such requirements to the extent necessary for such exemption to remain available.
(d) Effect of Board’s Decision. All determinations, interpretations and constructions made by the Board or any Committee in good faith will not be subject to review by any person and will be final, binding and conclusive on all persons.
(e) Delegation to an Officer. The Board or any Committee may delegate to one or more Officers the authority to do one or both of the following (i) designate Employees who are not Officers to be recipients of Options and SARs (and, to the extent permitted by Applicable Law, other types of Awards) and, to the extent permitted by Applicable Law, the terms thereof, and (ii) determine the number of shares of the Common Stock to be subject to such Awards granted to such Employees; provided, however, that the resolutions or charter adopted by the Board or any Committee evidencing such delegation will specify the total number of shares of the Common Stock that may be subject to the Awards granted by such Officer and that such Officer may not grant an Award to himself or herself. Any such Awards will be granted on the applicable form of Award Agreement most recently approved for use by the Board or the Committee, unless otherwise provided in the resolutions approving the delegation authority. Notwithstanding anything to the contrary herein, neither the Board nor any Committee may delegate to an Officer who is acting solely in the capacity of an Officer (and not also as a Director) the authority to determine the Fair Market Value.
8. TAX WITHHOLDING.
(a) Withholding Authorization. As a condition to acceptance of any Award under the Plan, a Participant authorizes withholding from payroll and any other amounts payable to such Participant, and otherwise agrees to make adequate provision for (including), any sums required to satisfy any U.S. federal, state, local and/or foreign tax or social insurance contribution withholding obligations of the Company or an Affiliate, if any, which arise in connection with the exercise, vesting or settlement of such Award, as applicable. Accordingly, a Participant may not be able to exercise an Award even though the Award is vested, and the Company shall have no obligation to issue shares of the Common Stock subject to an Award, unless and until such obligations are satisfied.
(b) Satisfaction of Withholding Obligation. To the extent permitted by the terms of an Award Agreement, the Company may, in its sole discretion, satisfy any U.S. federal, state, local and/or foreign tax or social insurance withholding obligation relating to an Award by any of the following means or by a combination of such means: (i) causing the Participant to tender a cash payment; (ii) withholding shares of the Common Stock from the shares of the Common Stock issued or otherwise issuable to the Participant in connection with the Award; (iii) withholding cash from an Award settled in cash; (iv) withholding payment from any amounts otherwise payable to the Participant; (v) by allowing a Participant to effectuate a “cashless exercise” pursuant to a program developed under Regulation T as promulgated by the Federal Reserve Board; or (vi) by such other method as may be set forth in the Award Agreement.
(c) No Obligation to Notify or Minimize Taxes; No Liability to Claims. Except as required by Applicable Law the Company has no duty or obligation to any Participant to advise such holder as to the time or manner of exercising such Award. Furthermore, the Company has no duty or obligation to warn or otherwise advise such holder of a pending termination or expiration of an Award or a possible period in which the Award may not be exercised. The Company has no duty or obligation to minimize the tax consequences of an Award to the holder of such Award and will not be liable to any holder of an Award for any adverse tax consequences
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to such holder in connection with an Award. As a condition to accepting an Award under the Plan, each Participant (i) agrees to not make any claim against the Company, or any of its Officers, Directors, Employees or Affiliates related to tax liabilities arising from such Award or other Company compensation and (ii) acknowledges that such Participant was advised to consult with their own personal tax, financial and other legal advisors regarding the tax consequences of the Award and has either done so or knowingly and voluntarily declined to do so. Additionally, each Participant acknowledges any Option or SAR granted under the Plan is exempt from Section 409A only if the exercise or strike price is at least equal to the “fair market value” of the Common Stock on the date of grant as determined by the Internal Revenue Service and there is no other impermissible deferral of compensation associated with the Award. Additionally, as a condition to accepting an Option or SAR granted under the Plan, each Participant agrees not make any claim against the Company, or any of its Officers, Directors, Employees or Affiliates in the event that the Internal Revenue Service asserts that such exercise price or strike price is less than the “fair market value” of the Common Stock on the date of grant as subsequently determined by the Internal Revenue Service.
(d) Withholding Indemnification. As a condition to accepting an Award under the Plan, in the event that the amount of the Company’s and/or its Affiliate’s withholding obligation in connection with such Award was greater than the amount actually withheld by the Company and/or its Affiliates, each Participant agrees to indemnify and hold the Company and/or its Affiliates harmless from any failure by the Company and/or its Affiliates to withhold the proper amount.
9. MISCELLANEOUS.
(a) Source of Shares. The stock issuable under the Plan will be shares of authorized but unissued or reacquired shares of the Common Stock, including shares repurchased by the Company on the open market or otherwise.
(b) Use of Proceeds from Sales of the Common Stock. Proceeds from the sale of shares of the Common Stock pursuant to Awards will constitute general funds of the Company.
(c) Corporate Action Constituting Grant of Awards. Corporate action constituting a grant by the Company of an Award to any Participant will be deemed completed as of the date of such corporate action, unless otherwise determined by the Board, regardless of when the instrument, certificate, or letter evidencing the Award is communicated to, or actually received or accepted by, the Participant. In the event that the corporate records (e.g., Board consents, resolutions or minutes) documenting the corporate action approving the grant contain terms (e.g., exercise price, vesting schedule or number of shares) that are inconsistent with those in the Award Agreement or related grant documents as a result of a clerical error in the Award Agreement or related grant documents, the corporate records will control and the Participant will have no legally binding right to the incorrect term in the Award Agreement or related grant documents.
(d) Stockholder Rights. No Participant will be deemed to be the holder of, or to have any of the rights of a holder with respect to, any shares of the Common Stock subject to such Award unless and until (i) such Participant has satisfied all requirements for exercise of the Award pursuant to its terms, if applicable, and (ii) the issuance of the Common Stock subject to such Award is reflected in the records of the Company.
(e) No Employment or Other Service Rights. Nothing in the Plan, any Award Agreement or any other instrument executed thereunder or in connection with any Award granted pursuant thereto will confer upon any Participant any right to continue to serve the Company or an Affiliate in the capacity in effect at the time the Award was granted or affect the right of the Company or an Affiliate to terminate at will and without regard to any future vesting opportunity that a Participant may have with respect to any Award (i) the employment of an Employee with or without notice and with or without cause, (ii) the service of a Consultant pursuant to the terms of such Consultant’s agreement with the Company or an Affiliate, or (iii) the service of a Director pursuant to the Bylaws of the Company or an Affiliate, and any applicable provisions of the corporate law of the state or foreign jurisdiction in which the Company or the Affiliate is incorporated, as the case may be. Further, nothing in the Plan, any Award Agreement or any other instrument executed thereunder or in connection with any Award will constitute any promise or commitment by the Company or an Affiliate regarding the fact or nature of future positions, future work assignments, future compensation or any other term or condition of employment or service or confer any right or benefit under the Award or the Plan unless such right or benefit has specifically accrued under the terms of the Award Agreement and/or Plan.
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(f) Change in Time Commitment. In the event a Participant’s regular level of time commitment in the performance of their services for the Company and any Affiliates is reduced (for example, and without limitation, if the Participant is an Employee of the Company and the Employee has a change in status from a full-time Employee to a part-time Employee or takes an extended leave of absence) after the date of grant of any Award to the Participant, the Board may determine, to the extent permitted by Applicable Law, to (i) make a corresponding reduction in the number of shares or cash amount subject to any portion of such Award that is scheduled to vest or become payable after the date of such change in time commitment, and (ii) in lieu of or in combination with such a reduction, extend the vesting or payment schedule applicable to such Award. In the event of any such reduction, the Participant will have no right with respect to any portion of the Award that is so reduced or extended.
(g) Execution of Additional Documents. As a condition to accepting an Award under the Plan, the Participant agrees to execute any additional documents or instruments necessary or desirable, as determined in the Plan Administrator’s sole discretion, to carry out the purposes or intent of the Award, or facilitate compliance with securities and/or other regulatory requirements, in each case at the Plan Administrator’s request.
(h) Electronic Delivery and Participation. Any reference herein or in an Award Agreement to a “written” agreement or document will include any agreement or document delivered electronically, filed publicly at www.sec.gov (or any successor website thereto) or posted on the Company’s intranet (or other shared electronic medium controlled by the Company to which the Participant has access). By accepting any Award the Participant consents to receive documents by electronic delivery and to participate in the Plan through any on-line electronic system established and maintained by the Plan Administrator or another third party selected by the Plan Administrator. The form of delivery of any the Common Stock (e.g., a stock certificate or electronic entry evidencing such shares) shall be determined by the Company.
(i) Clawback/Recovery. All Awards granted under the Plan will be subject to recoupment in accordance with any clawback policy that the Company is required to adopt pursuant to the listing standards of any national securities exchange or association on which the Company’s securities are listed or as is otherwise required by the Dodd-Frank Wall Street Reform and Consumer Protection Act or other Applicable Law and any clawback policy that the Company otherwise adopts, to the extent applicable and permissible under Applicable Law. In addition, the Board may impose such other clawback, recovery or recoupment provisions in an Award Agreement as the Board determines necessary or appropriate, including but not limited to a reacquisition right in respect of previously acquired shares of the Common Stock or other cash or property upon the occurrence of Cause. No recovery of compensation under such a clawback policy will be an event giving rise to a Participant’s right to voluntarily terminate employment upon a “resignation for good reason,” or for a “constructive termination” or any similar term under any plan of or agreement with the Company.
(j) Securities Law Compliance. A Participant will not be issued any shares in respect of an Award unless either (i) the shares are registered under the Securities Act; or (ii) the Company has determined that such issuance would be exempt from the registration requirements of the Securities Act. Each Award also must comply with other Applicable Law governing the Award, and a Participant will not receive such shares if the Company determines that such receipt would not be in material compliance with Applicable Law.
(k) Transfer or Assignment of Awards; Issued Shares. Except as expressly provided in the Plan or the form of Award Agreement, Awards granted under the Plan may not be transferred or assigned by the Participant. After the vested shares subject to an Award have been issued, or in the case of Restricted Stock and similar awards, after the issued shares have vested, the holder of such shares is free to assign, hypothecate, donate, encumber or otherwise dispose of any interest in such shares provided that any such actions are in compliance with the provisions herein, the terms of the Trading Policy and Applicable Law.
(l) Effect on Other Employee Benefit Plans. The value of any Award granted under the Plan, as determined upon grant, vesting or settlement, shall not be included as compensation, earnings, salaries, or other similar terms used when calculating any Participant’s benefits under any employee benefit plan sponsored by the Company or any Affiliate, except as such plan otherwise expressly provides. The Company expressly reserves its rights to amend, modify, or terminate any of the Company’s or any Affiliate’s employee benefit plans.
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(m) Deferrals. To the extent permitted by Applicable Law, the Board, in its sole discretion, may determine that the delivery of the Common Stock or the payment of cash, upon the exercise, vesting or settlement of all or a portion of any Award may be deferred and may also establish programs and procedures for deferral elections to be made by Participants. Deferrals will be made in accordance with the requirements of Section 409A.
(n) Section 409A. Unless otherwise expressly provided for in an Award Agreement, the Plan and Award Agreements will be interpreted to the greatest extent possible in a manner that makes the Plan and the Awards granted hereunder exempt from Section 409A, and, to the extent not so exempt, in compliance with the requirements of Section 409A. If the Board determines that any Award granted hereunder is not exempt from and is therefore subject to Section 409A, the Award Agreement evidencing such Award will incorporate the terms and conditions necessary to avoid the consequences specified in Section 409A(a)(1) of the Code, and to the extent an Award Agreement is silent on terms necessary for compliance, such terms are hereby incorporated by reference into the Award Agreement. Notwithstanding anything to the contrary in this Plan (and unless the Award Agreement specifically provides otherwise), if the shares of the Common Stock are publicly traded, and if a Participant holding an Award that constitutes “deferred compensation” under Section 409A is a “specified employee” for purposes of Section 409A, no distribution or payment of any amount that is due because of a “separation from service” (as defined in Section 409A without regard to alternative definitions thereunder) will be issued or paid before the date that is six months and one day following the date of such Participant’s “separation from service” or, if earlier, the date of the Participant’s death, unless such distribution or payment can be made in a manner that complies with Section 409A, and any amounts so deferred will be paid in a lump sum on the day after such six month period elapses, with the balance paid thereafter on the original schedule.
(o) Choice of Law. This Plan and any controversy arising out of or relating to this Plan shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to conflict of law principles that would result in any application of any law other than the law of the State of Delaware.
10. COVENANTS OF THE COMPANY.
The Company will seek to obtain from each regulatory commission or agency, as may be deemed to be necessary, having jurisdiction over the Plan such authority as may be required to grant Awards and to issue and sell shares of the Common Stock upon exercise or vesting of the Awards; provided, however, that this undertaking will not require the Company to register under the Securities Act the Plan, any Award or any Common Stock issued or issuable pursuant to any such Award. If, after reasonable efforts and at a reasonable cost, the Company is unable to obtain from any such regulatory commission or agency the authority that counsel for the Company deems necessary or advisable for the lawful issuance and sale of the Common Stock under the Plan, the Company will be relieved from any liability for failure to issue and sell the Common Stock upon exercise or vesting of such Awards unless and until such authority is obtained. A Participant is not eligible for the grant of an Award or the subsequent issuance of the Common Stock pursuant to the Award if such grant or issuance would be in violation of any Applicable Law.
11. ADDITIONAL RULES FOR AWARDS SUBJECT TO SECTION 409A.
(a) Application. Unless the provisions of this Section 11 of the Plan are expressly superseded by the provisions in the form of Award Agreement, the provisions of this Section 11 shall apply and shall supersede anything to the contrary set forth in the Award Agreement for a Non-Exempt Award.
(b) Non-Exempt Awards Subject to Non-Exempt Severance Arrangements. To the extent a Non-Exempt Award is subject to Section 409A due to application of a Non-Exempt Severance Arrangement, the following provisions of this subsection (b) apply.
(i) If the Non-Exempt Award vests in the ordinary course during the Participant’s Continuous Service in accordance with the vesting schedule set forth in the Award Agreement, and does not accelerate vesting under the terms of a Non-Exempt Severance Arrangement, in no event will the shares be issued in respect of such Non-Exempt Award any later than the later of: (i) December 31st of the calendar year that includes the applicable vesting date, or (ii) the 60th day that follows the applicable vesting date.
(ii) If vesting of the Non-Exempt Award accelerates under the terms of a Non-Exempt Severance Arrangement in connection with the Participant’s Separation from Service, and such vesting acceleration provisions were in effect as of the date of grant of the Non-Exempt Award and, therefore, are part of the terms of such Non-Exempt Award as of the date of grant, then the shares will be earlier issued in settlement
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of such Non-Exempt Award upon the Participant’s Separation from Service in accordance with the terms of the Non-Exempt Severance Arrangement, but in no event later than the 60th day that follows the date of the Participant’s Separation from Service. However, if at the time the shares would otherwise be issued the Participant is subject to the distribution limitations contained in Section 409A applicable to “specified employees,” as defined in Section 409A(a)(2)(B)(i) of the Code, such shares shall not be issued before the date that is six months following the date of such Participant’s Separation from Service, or, if earlier, the date of the Participant’s death that occurs within such six month period.
(iii) If vesting of a Non-Exempt Award accelerates under the terms of a Non-Exempt Severance Arrangement in connection with a Participant’s Separation from Service, and such vesting acceleration provisions were not in effect as of the date of grant of the Non-Exempt Award and, therefore, are not a part of the terms of such Non-Exempt Award on the date of grant, then such acceleration of vesting of the Non-Exempt Award shall not accelerate the issuance date of the shares, but the shares shall instead be issued on the same schedule as set forth in the Grant Notice as if they had vested in the ordinary course during the Participant’s Continuous Service, notwithstanding the vesting acceleration of the Non-Exempt Award. Such issuance schedule is intended to satisfy the requirements of payment on a specified date or pursuant to a fixed schedule, as provided under Treasury Regulations Section 1.409A-3(a)(4).
(c) Treatment of Non-Exempt Awards Upon a Corporate Transaction for Employees and Consultants. The provisions of this subsection (c) shall apply and shall supersede anything to the contrary set forth in the Plan with respect to the permitted treatment of any Non-Exempt Award in connection with a Corporate Transaction if the Participant was either an Employee or Consultant upon the applicable date of grant of the Non-Exempt Award.
(i) Vested Non-Exempt Awards. The following provisions shall apply to any Vested Non-Exempt Award in connection with a Corporate Transaction:
(1) If the Corporate Transaction is also a Section 409A Change in Control then the Acquiring Entity may not assume, continue or substitute the Vested Non-Exempt Award. Upon the Section 409A Change in Control the settlement of the Vested Non-Exempt Award will automatically be accelerated and the shares will be immediately issued in respect of the Vested Non-Exempt Award. Alternatively, the Company may instead provide that the Participant will receive a cash settlement equal to the Fair Market Value of the shares that would otherwise be issued to the Participant upon the Section 409A Change in Control.
(2) If the Corporate Transaction is not also a Section 409A Change in Control, then the Acquiring Entity must either assume, continue or substitute each Vested Non-Exempt Award. The shares to be issued in respect of the Vested Non-Exempt Award shall be issued to the Participant by the Acquiring Entity on the same schedule that the shares would have been issued to the Participant if the Corporate Transaction had not occurred. In the Acquiring Entity’s discretion, in lieu of an issuance of shares, the Acquiring Entity may instead substitute a cash payment on each applicable issuance date, equal to the Fair Market Value of the shares that would otherwise be issued to the Participant on such issuance dates, with the determination of the Fair Market Value of the shares made on the date of the Corporate Transaction.
(ii) Unvested Non-Exempt Awards. The following provisions shall apply to any Unvested Non-Exempt Award unless otherwise determined by the Board pursuant to Section 11(e).
(1) In the event of a Corporate Transaction, the Acquiring Entity shall assume, continue or substitute any Unvested Non-Exempt Award. Unless otherwise determined by the Board, any Unvested Non-Exempt Award will remain subject to the same vesting and forfeiture restrictions that were applicable to the Award prior to the Corporate Transaction. The shares to be issued in respect of any Unvested Non-Exempt Award shall be issued to the Participant by the Acquiring Entity on the same schedule that the shares would have been issued to the Participant if the Corporate Transaction had not occurred. In the Acquiring Entity’s discretion, in lieu of an issuance of shares, the Acquiring Entity may instead substitute a cash payment on each applicable issuance date, equal to the Fair Market Value of the shares that would otherwise be issued to the Participant on such issuance dates, with the determination of Fair Market Value of the shares made on the date of the Corporate Transaction.
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(2) If the Acquiring Entity will not assume, substitute or continue any Unvested Non-Exempt Award in connection with a Corporate Transaction, then such Award shall automatically terminate and be forfeited upon the Corporate Transaction with no consideration payable to any Participant in respect of such forfeited Unvested Non-Exempt Award. Notwithstanding the foregoing, to the extent permitted and in compliance with the requirements of Section 409A, the Board may in its discretion determine to elect to accelerate the vesting and settlement of the Unvested Non-Exempt Award upon the Corporate Transaction, or instead substitute a cash payment equal to the Fair Market Value of such shares that would otherwise be issued to the Participant, as further provided in subsection (e)(ii) below. In the absence of such discretionary election by the Board, any Unvested Non-Exempt Award shall be forfeited without payment of any consideration to the affected Participants if the Acquiring Entity will not assume, substitute or continue the Unvested Non-Exempt Awards in connection with the Corporate Transaction.
(3) The foregoing treatment shall apply with respect to all Unvested Non-Exempt Awards upon any Corporate Transaction, and regardless of whether or not such Corporate Transaction is also a Section 409A Change in Control.
(d) Treatment of Non-Exempt Awards Upon a Corporate Transaction for Non-Employee Directors. The following provisions of this subsection (d) shall apply and shall supersede anything to the contrary that may be set forth in the Plan with respect to the permitted treatment of a Non-Exempt Director Award in connection with a Corporate Transaction.
(i) If the Corporate Transaction is also a Section 409A Change in Control then the Acquiring Entity may not assume, continue or substitute the Non-Exempt Director Award. Upon the Section 409A Change in Control the vesting and settlement of any Non-Exempt Director Award will automatically be accelerated and the shares will be immediately issued to the Participant in respect of the Non-Exempt Director Award. Alternatively, the Company may provide that the Participant will instead receive a cash settlement equal to the Fair Market Value of the shares that would otherwise be issued to the Participant upon the Section 409A Change in Control pursuant to the preceding provision.
(ii) If the Corporate Transaction is not also a Section 409A Change in Control, then the Acquiring Entity must either assume, continue or substitute the Non-Exempt Director Award. Unless otherwise determined by the Board, the Non-Exempt Director Award will remain subject to the same vesting and forfeiture restrictions that were applicable to the Award prior to the Corporate Transaction. The shares to be issued in respect of the Non-Exempt Director Award shall be issued to the Participant by the Acquiring Entity on the same schedule that the shares would have been issued to the Participant if the Corporate Transaction had not occurred. In the Acquiring Entity’s discretion, in lieu of an issuance of shares, the Acquiring Entity may instead substitute a cash payment on each applicable issuance date, equal to the Fair Market Value of the shares that would otherwise be issued to the Participant on such issuance dates, with the determination of Fair Market Value made on the date of the Corporate Transaction.
(e) If the RSU Award is a Non-Exempt Award, then the provisions in this Section 11(e) shall apply and supersede anything to the contrary that may be set forth in the Plan or the Award Agreement with respect to the permitted treatment of such Non-Exempt Award:
(i) Any exercise by the Board of discretion to accelerate the vesting of a Non-Exempt Award shall not result in any acceleration of the scheduled issuance dates for the shares in respect of the Non-Exempt Award unless earlier issuance of the shares upon the applicable vesting dates would be in compliance with the requirements of Section 409A.
(ii) The Company explicitly reserves the right to earlier settle any Non-Exempt Award to the extent permitted and in compliance with the requirements of Section 409A, including pursuant to any of the exemptions available in Treasury Regulations Section 1.409A-3(j)(4)(ix).
(iii) To the extent the terms of any Non-Exempt Award provide that it will be settled upon a Change in Control or Corporate Transaction, to the extent it is required for compliance with the requirements of Section 409A, the Change in Control or Corporate Transaction event triggering settlement must also constitute a Section 409A Change in Control. To the extent the terms of a Non-Exempt Award provides that it will be settled upon a termination of employment or termination of Continuous Service, to the extent it
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is required for compliance with the requirements of Section 409A, the termination event triggering settlement must also constitute a Separation From Service. However, if at the time the shares would otherwise be issued to a Participant in connection with a “separation from service” such Participant is subject to the distribution limitations contained in Section 409A applicable to “specified employees,” as defined in Section 409A(a)(2)(B)(i) of the Code, such shares shall not be issued before the date that is six months following the date of the Participant’s Separation From Service, or, if earlier, the date of the Participant’s death that occurs within such six month period.
(iv) The provisions in this subsection (e) for delivery of the shares in respect of the settlement of an RSU Award that is a Non-Exempt Award are intended to comply with the requirements of Section 409A so that the delivery of the shares to the Participant in respect of such Non-Exempt Award will not trigger the additional tax imposed under Section 409A, and any ambiguities herein will be so interpreted.
12. SEVERABILITY.
If all or any part of the Plan or any Award Agreement is declared by any court or governmental authority to be unlawful or invalid, such unlawfulness or invalidity shall not invalidate any portion of the Plan or such Award Agreement not declared to be unlawful or invalid. Any Section of the Plan or any Award Agreement (or part of such a Section) so declared to be unlawful or invalid shall, if possible, be construed in a manner which will give effect to the terms of such Section or part of a Section to the fullest extent possible while remaining lawful and valid.
13. TERMINATION OF THE PLAN.
The Board may suspend or terminate the Plan at any time. No Incentive Stock Options may be granted after the tenth anniversary of the earlier of: (i) the Adoption Date, or (ii) the date the Plan is approved by the Company’s stockholders. No Awards may be granted under the Plan while the Plan is suspended or after it is terminated.
14. DEFINITIONS.
As used in the Plan, the following definitions apply to the capitalized terms indicated below:
(a) “Acquiring Entity” means the surviving or acquiring corporation (or its parent company) in connection with a Corporate Transaction.
(b) “Adoption Date” means the date the Plan is first approved by the Board or Compensation Committee.
(c) “Affiliate” means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined in Rule 405 promulgated under the Securities Act. The Board may determine the time or times at which “parent” or “subsidiary” status is determined within the foregoing definition.
(d) “Applicable Law” means any applicable securities, federal, state, foreign, material local or municipal or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, listing rule, regulation, judicial decision, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Body (including under the authority of any applicable self-regulating organization such as the Nasdaq Stock Market, New York Stock Exchange, or the Financial Industry Regulatory Authority).
(e) “Award” means any right to receive the Common Stock, cash or other property granted under the Plan (including an Incentive Stock Option, a Nonstatutory Stock Option, a Restricted Stock Award, an RSU Award, a SAR, a Performance Award or any Other Award).
(f) “Award Agreement” means a written or electronic agreement between the Company and a Participant evidencing the terms and conditions of an Award. The Award Agreement generally consists of the Grant Notice and the agreement containing the written summary of the general terms and conditions applicable to the Award and which is provided, including through electronic means, to a Participant along with the Grant Notice.
(g) “Board” means the Board of Directors of the Company (or its designee). Any decision or determination made by the Board shall be a decision or determination that is made in the sole discretion of the Board (or its designee), and such decision or determination shall be final and binding on all Participants.
(h) “Capitalization Adjustment” means any change that is made in, or other events that occur with respect to, the Common Stock subject to the Plan or subject to any Award after the Effective Date without the
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receipt of consideration by the Company through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, large nonrecurring cash dividend, stock split, reverse stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or any similar equity restructuring transaction, as that term is used in Statement of Financial Accounting Standards Board Accounting Standards Codification Topic 718 (or any successor thereto). Notwithstanding the foregoing, the conversion of any convertible securities of the Company will not be treated as a Capitalization Adjustment.
(i) “Cause” has the meaning ascribed to such term in any written agreement between a Participant and the Company defining such term and, in the absence of such agreement, such term means, with respect to a Participant, the occurrence of any of the following events: (i) the Participant’s dishonest statements or acts with respect to the Company or any Affiliate of the Company, or any current or prospective customers, suppliers, vendors or other third parties with which such entity does business; (ii) the Participant’s commission of (A) a felony or (B) any misdemeanor involving moral turpitude, deceit, dishonesty or fraud; (iii) the Participant’s failure to perform the Participant’s assigned duties and responsibilities to the reasonable satisfaction of the Company which failure continues, in the reasonable judgment of the Company, after written notice given to the Participant by the Company; (iv) the Participant’s gross negligence, willful misconduct or insubordination with respect to the Company or any Affiliate of the Company; or (v) the Participant’s material violation of any provision of any agreement(s) between the Participant and the Company relating to noncompetition, nonsolicitation, nondisclosure and/or assignment of inventions. The determination that a termination of the Participant’s Continuous Service is either for Cause or without Cause will be made by the Board with respect to Participants who are executive officers of the Company and by the Company’s Chief Executive Officer with respect to Participants who are not executive officers of the Company. Any determination by the Company that the Continuous Service of a Participant was terminated with or without Cause for the purposes of outstanding Awards held by such Participant will have no effect upon any determination of the rights or obligations of the Company or such Participant for any other purpose.
(j) “Change in Control” or “Change of Control” means the occurrence, in a single transaction or in a series of related transactions, of any one or more of the following events; provided, however, to the extent necessary to avoid adverse personal income tax consequences to the Participant in connection with an Award, also constitutes a Section 409A Change in Control:
(i) any Exchange Act Person becomes the Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities other than by virtue of a merger, consolidation or similar transaction. Notwithstanding the foregoing, a Change in Control shall not be deemed to occur (A) on account of the acquisition of securities of the Company directly from the Company, (B) on account of the acquisition of securities of the Company by an investor, any affiliate thereof or any other Exchange Act Person that acquires the Company’s securities in a transaction or series of related transactions the primary purpose of which is to obtain financing for the Company through the issuance of equity securities, or (C) solely because the level of Ownership held by any Exchange Act Person (the “Subject Person”) exceeds the designated percentage threshold of the outstanding voting securities as a result of a repurchase or other acquisition of voting securities by the Company reducing the number of shares outstanding, provided that if a Change in Control would occur (but for the operation of this sentence) as a result of the acquisition of voting securities by the Company, and after such share acquisition, the Subject Person becomes the Owner of any additional voting securities that, assuming the repurchase or other acquisition had not occurred, increases the percentage of the then outstanding voting securities Owned by the Subject Person over the designated percentage threshold, then a Change in Control shall be deemed to occur;
(ii) there is consummated a merger, consolidation or similar transaction involving (directly or indirectly) the Company and, immediately after the consummation of such merger, consolidation or similar transaction, the stockholders of the Company immediately prior thereto do not Own, directly or indirectly, either (A) outstanding voting securities representing more than 50% of the combined outstanding voting power of the surviving Entity in such merger, consolidation or similar transaction or (B) more than 50% of the combined outstanding voting power of the parent of the surviving Entity in such merger, consolidation or similar transaction, in each case in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such transaction;
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(iii) there is consummated a sale, lease, exclusive license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries, other than a sale, lease, license or other disposition of all or substantially all of the consolidated assets of the Company and its Subsidiaries to an Entity, more than 50% of the combined voting power of the voting securities of which are Owned by stockholders of the Company in substantially the same proportions as their Ownership of the outstanding voting securities of the Company immediately prior to such sale, lease, license or other disposition; or
(iv) individuals who, on the date the Plan is adopted by the Board, are members of the Board (the “Incumbent Board”) cease for any reason to constitute at least a majority of the members of the Board; provided, however, that if the appointment or election (or nomination for election) of any new Board member was approved or recommended by a majority vote of the members of the Incumbent Board then still in office, such new member shall, for purposes of this Plan, be considered as a member of the Incumbent Board.
Notwithstanding the foregoing or any other provision of this Plan, (A) the term Change in Control shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company, and (B) the definition of Change in Control (or any analogous term) in an individual written agreement between the Company or any Affiliate and the Participant shall supersede the foregoing definition with respect to Awards subject to such agreement; provided, however, that if no definition of Change in Control or any analogous term is set forth in such an individual written agreement, the foregoing definition shall apply.
(k) “Code” means the Internal Revenue Code of 1986, as amended, including any applicable regulations and guidance thereunder.
(l) “Committee” means the Compensation Committee and any other committee of one or more Directors to whom authority has been delegated by the Board or Compensation Committee in accordance with the Plan.
(m) “Common Stock” means the Class A Common Stock of the Company.
(n) “Company” means NeuroBo Pharmaceuticals, Inc., a Delaware corporation.
(o) “Compensation Committee” means the Compensation Committee of the Board.
(p) “Consultant” means any person, including an advisor, who is (i) engaged by the Company or an Affiliate to render consulting or advisory services and is compensated for such services, or (ii) serving as a member of the board of directors of an Affiliate and is compensated for such services. However, service solely as a Director, or payment of a fee for such service, will not cause a Director to be considered a “Consultant” for purposes of the Plan. Notwithstanding the foregoing, a person is treated as a Consultant under this Plan only if a Form S-8 Registration Statement under the Securities Act is available to register either the offer or the sale of the Company’s securities to such person.
(q) “Continuous Service” means that the Participant’s service with the Company or an Affiliate, whether as an Employee, Director or Consultant, is not interrupted or terminated. A change in the capacity in which the Participant renders service to the Company or an Affiliate as an Employee, Director or Consultant or a change in the Entity for which the Participant renders such service, provided that there is no interruption or termination of the Participant’s service with the Company or an Affiliate, will not terminate a Participant’s Continuous Service; provided, however, that if the Entity for which a Participant is rendering services ceases to qualify as an Affiliate, as determined by the Board, such Participant’s Continuous Service will be considered to have terminated on the date such Entity ceases to qualify as an Affiliate. For example, a change in status from an Employee of the Company to a Consultant of an Affiliate or to a Director will not constitute an interruption of Continuous Service. To the extent permitted by law, the Board or the Chief Executive Officer of the Company, in that party’s sole discretion, may determine whether Continuous Service will be considered interrupted in the case of (i) any leave of absence approved by the Board or chief executive officer, including sick leave, military leave or any other personal leave, or (ii) transfers between the Company, an Affiliate, or their successors. Notwithstanding the foregoing, a leave of absence will be treated as Continuous Service for purposes of vesting in an Award only to such extent as may be provided in the Company’s leave of absence policy, in the written terms of any leave of absence agreement or policy applicable to the Participant, or as otherwise required by law. In addition, to the extent required for exemption from or compliance with Section 409A, the determination of
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whether there has been a termination of Continuous Service will be made, and such term will be construed, in a manner that is consistent with the definition of “separation from service” as defined under Treasury Regulation Section 1.409A-1(h) (without regard to any alternative definition thereunder).
(r) “Corporate Transaction” means the consummation, in a single transaction or in a series of related transactions, of any one or more of the following events:
(i) a sale or other disposition of all or substantially all, as determined by the Board, of the consolidated assets of the Company and its Subsidiaries;
(ii) a sale or other disposition of at least 50% of the outstanding securities of the Company;
(iii) a merger, consolidation or similar transaction following which the Company is not the surviving corporation; or
(iv) a merger, consolidation or similar transaction following which the Company is the surviving corporation but the shares of the Common Stock outstanding immediately preceding the merger, consolidation or similar transaction are converted or exchanged by virtue of the merger, consolidation or similar transaction into other property, whether in the form of securities, cash or otherwise.
Notwithstanding the foregoing or any other provision of this Plan, (A) the term Corporate Transaction shall not include a sale of assets, merger or other transaction effected exclusively for the purpose of changing the domicile of the Company, (B) the definition of Corporate Transaction (or any analogous term) in an individual written agreement between the Company or any Affiliate and the Participant shall supersede the foregoing definition with respect to Awards subject to such agreement; provided, however, that if no definition of Corporate Transaction or any analogous term is set forth in such an individual written agreement, the foregoing definition shall apply, and (C) with respect to any nonqualified deferred compensation that becomes payable on account of the Corporate Transaction, the transaction or event described in clause (i), (ii), (iii), or (iv) also constitutes a Section 409A Change in Control if required in order for the payment not to violate Section 409A of the Code.
(s) “Director” means a member of the Board.
(t) “determine” or “determined” means as determined by the Board or the Committee (or its designee) in its sole discretion.
(u) “Disability” means, with respect to a Participant, such Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months, as provided in Section 22(e)(3) of the Code, and will be determined by the Board on the basis of such medical evidence as the Board deems warranted under the circumstances.
(v) “Effective Date” means the effective date of this Plan, which is the date this Plan (as amended from time to time) is approved by the Company’s stockholders.
(w) “Employee” means any person employed by the Company or an Affiliate. However, service solely as a Director, or payment of a fee for such services, will not cause a Director to be considered an “Employee” for purposes of the Plan.
(x) “Employer” means the Company or the Affiliate of the Company that employs the Participant.
(y) “Entity” means a corporation, partnership, limited liability company or other entity.
(z) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
(aa) “Exchange Act Person” means any natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act), except that “Exchange Act Person” will not include (i) the Company or any Subsidiary of the Company, (ii) any employee benefit plan of the Company or any Subsidiary of the Company or any trustee or other fiduciary holding securities under an employee benefit plan of the Company or any Subsidiary of the Company, (iii) an underwriter temporarily holding securities pursuant to a registered public offering of such securities, (iv) an Entity Owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their Ownership of stock of the Company; or (v) any
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natural person, Entity or “group” (within the meaning of Section 13(d) or 14(d) of the Exchange Act) that, as of the Effective Date, is the Owner, directly or indirectly, of securities of the Company representing more than 50% of the combined voting power of the Company’s then outstanding securities.
(bb) “Fair Market Value” means, as of any date, unless otherwise determined by the Board, the value of the Common Stock (as determined on a per share or aggregate basis, as applicable) determined as follows:
(i) If the Common Stock is listed on any established stock exchange or traded on any established market, the Fair Market Value will be the closing sales price for such stock as quoted on such exchange or market (or the exchange or market with the greatest volume of trading in the Common Stock) on the date of determination, as reported in a source the Board deems reliable.
(ii) If there is no closing sales price for the Common Stock on the date of determination, then the Fair Market Value will be the closing selling price on the last preceding date for which such quotation exists.
(iii) In the absence of such markets for the Common Stock, or if otherwise determined by the Board, the Fair Market Value will be determined by the Board in good faith and in a manner that complies with Sections 409A and 422 of the Code.
(cc) “Fully Diluted Shares” as of a date means an amount equal to the number of shares of Common Stock (i) outstanding and (ii) issuable upon exercise, conversion or settlement of outstanding Awards under the Plan and any other outstanding options, warrants or other securities of the Company that are (directly or indirectly) convertible or exchangeable into or exercisable for shares of Common Stock, in each case as of the close of business of the Company on such date and without regard to any vesting conditions or other limitations on the immediate ability to convert, exchange or exercise such rights. For purposes of calculating the number of Fully Diluted Shares, if the number of shares subject to an outstanding right to acquire shares is variable, then the number of shares of Common Stock issuable upon exercise, conversion, exchange or settlement of the right shall be the maximum number of shares that could be received under such right.
(dd) “Governmental Body” means any: (i) nation, state, commonwealth, province, territory, county, municipality, district or other jurisdiction of any nature; (ii) federal, state, local, municipal, foreign or other government; (iii) governmental or regulatory body, or quasi-governmental body of any nature (including any governmental division, department, administrative agency or bureau, commission, authority, instrumentality, official, ministry, fund, foundation, center, organization, unit, body or Entity and any court or other tribunal, and for the avoidance of doubt, any Tax authority) or other body exercising similar powers or authority; or (iv) self-regulatory organization (including the Nasdaq Stock Market, New York Stock Exchange, and the Financial Industry Regulatory Authority).
(ee) “Grant Notice” means the notice provided to a Participant that he or she has been granted an Award under the Plan and which includes the name of the Participant, the type of Award, the date of grant of the Award, number of shares of the Common Stock subject to the Award or potential cash payment right, (if any), the vesting schedule for the Award (if any) and other key terms applicable to the Award.
(ff) “Incentive Stock Option” means an option granted pursuant to Section 4 of the Plan that is intended to be, and qualifies as, an “incentive stock option” within the meaning of Section 422 of the Code.
(gg) “Materially Impair” means any amendment to the terms of the Award that materially adversely affects the Participant’s rights under the Award. A Participant’s rights under an Award will not be deemed to have been Materially Impaired by any such amendment if the Board, in its sole discretion, determines that the amendment, taken as a whole, does not Materially Impair the Participant’s rights. For example, the following types of amendments to the terms of an Award do not Materially Impair the Participant’s rights under the Award: (i) imposition of reasonable restrictions on the minimum number of shares subject to an Option or SAR that may be exercised; (ii) to maintain the qualified status of the Award as an Incentive Stock Option under Section 422 of the Code; (iii) to change the terms of an Incentive Stock Option in a manner that disqualifies, impairs or otherwise affects the qualified status of the Award as an Incentive Stock Option under Section 422 of the Code; (iv) to clarify the manner of exemption from, or to bring the Award into compliance with or qualify it for an exemption from, Section 409A; or (v) to comply with other Applicable Laws.
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(hh) “Non-Employee Director” means a Director who either (i) is not a current employee or officer of the Company or an Affiliate, does not receive compensation, either directly or indirectly, from the Company or an Affiliate for services rendered as a consultant or in any capacity other than as a Director (except for an amount as to which disclosure would not be required under Item 404(a) of Regulation S-K promulgated pursuant to the Securities Act (“Regulation S-K”)), does not possess an interest in any other transaction for which disclosure would be required under Item 404(a) of Regulation S-K, and is not engaged in a business relationship for which disclosure would be required pursuant to Item 404(b) of Regulation S-K; or (ii) is otherwise considered a “non-employee director” for purposes of Rule 16b-3.
(ii) “Non-Exempt Award” means any Award that is subject to, and not exempt from, Section 409A, including as the result of (i) a deferral of the issuance of the shares subject to the Award which is elected by the Participant or imposed by the Company, or (ii) the terms of any Non-Exempt Severance Agreement.
(jj) “Non-Exempt Director Award” means a Non-Exempt Award granted to a Participant who was a Director but not an Employee on the applicable grant date.
(kk) “Non-Exempt Severance Arrangement” means a severance arrangement or other agreement between the Participant and the Company that provides for acceleration of vesting of an Award and issuance of the shares in respect of such Award upon the Participant’s termination of employment or separation from service (as such term is defined in Section 409A(a)(2)(A)(i) of the Code (and without regard to any alternative definition thereunder) (“Separation from Service”) and such severance benefit does not satisfy the requirements for an exemption from application of Section 409A provided under Treasury Regulations Section 1.409A-1(b)(4), 1.409A-1(b)(9) or otherwise.
(ll) “Nonstatutory Stock Option” means any option granted pursuant to Section 4 of the Plan that does not qualify as an Incentive Stock Option.
(mm) “Officer” means a person who is an officer of the Company within the meaning of Section 16 of the Exchange Act.
(nn) “Option” means an Incentive Stock Option or a Nonstatutory Stock Option to purchase shares of the Common Stock granted pursuant to the Plan.
(oo) “Option Agreement” means a written or electronic agreement between the Company and the Optionholder evidencing the terms and conditions of the Option grant. The Option Agreement includes the Grant Notice for the Option and the agreement containing the written summary of the general terms and conditions applicable to the Option and which is provided, including through electronic means, to a Participant along with the Grant Notice. Each Option Agreement will be subject to the terms and conditions of the Plan.
(pp) “Optionholder” means a person to whom an Option is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Option.
(qq) “Other Award” means an award valued in whole or in part by reference to, or otherwise based on, Common Stock, including the appreciation in value thereof (e.g., options or stock rights with an exercise price or strike price less than 100% of the Fair Market Value at the time of grant) that is not an Incentive Stock Option, Nonstatutory Stock Option, SAR, Restricted Stock Award, RSU Award or Performance Award.
(rr) “Other Award Agreement” means a written agreement between the Company and a holder of an Other Award evidencing the terms and conditions of an Other Award grant. Each Other Award Agreement will be subject to the terms and conditions of the Plan.
(ss) “Own”, “Owned”, “Owner” or “Ownership” means that a person or Entity will be deemed to “Own,” to have “Owned,” to be the “Owner” of, or to have acquired “Ownership” of securities if such person or Entity, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares voting power, which includes the power to vote or to direct the voting, with respect to such securities.
(tt) “Participant” means an Employee, Director or Consultant to whom an Award is granted pursuant to the Plan or, if applicable, such other person who holds an outstanding Award.
(uu) “Performance Award” means an Award that may vest or may be exercised or a cash award that may vest or become earned and paid contingent upon the attainment during a Performance Period of certain Performance Goals and which is granted under the terms and conditions of Section 5(b) pursuant to such terms
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as are approved by the Board. In addition, to the extent permitted by Applicable Law and set forth in the applicable Award Agreement, the Board may determine that cash or other property may be used in payment of Performance Awards. Performance Awards that are settled in cash or other property are not required to be valued in whole or in part by reference to, or otherwise based on, the Common Stock.
(vv) “Performance Criteria” means one or more criteria that the Board will select for purposes of establishing the Performance Goals for a Performance Period. The Performance Criteria that will be used to establish such Performance Goals may be based on any one of, or combination of, the following as determined by the Board: earnings (including earnings per share and net earnings); earnings before interest, taxes and depreciation; earnings before interest, taxes, depreciation and amortization; total stockholder return; return on equity or average stockholder’s equity; return on assets, investment, or capital employed; stock price; margin (including gross margin); income (before or after taxes); operating income; operating income after taxes; pre-tax profit; operating cash flow; sales or revenue targets; increases in revenue or product revenue; expenses and cost reduction goals; improvement in or attainment of working capital levels; economic value added (or an equivalent metric); market share; cash flow; cash flow per share; share price performance; debt reduction; customer satisfaction; stockholders’ equity; capital expenditures; debt levels; operating profit or net operating profit; workforce diversity; growth of net income or operating income; billings; product development goals; financing; regulatory milestones, including approval of a product; stockholder liquidity; corporate governance and compliance; product commercialization; intellectual property; personnel matters; progress of internal research; progress of partnered programs; partner satisfaction; budget management; data from clinical studies, partner or collaborator achievements; internal controls, including those related to the Sarbanes-Oxley Act of 2002; investor relations, analysts and communication; manufacturing achievements (including obtaining particular yields from manufacturing runs and other measurable objectives relates to process development activities); employee retention; strategic partnerships or transactions (including in-licensing and out-licensing of intellectual property); establishing relationships with commercial entities with respect to the marketing, distribution and sale of the Company’s products; supply chain achievements; co-development, co-marketing, profit sharing, joint venture or other similar arrangements; individual performance goals; corporate development and planning goals; and other measures of performance selected by the Board or Committee whether or not listed herein.
(ww) “Performance Goals” means, for a Performance Period, one or more goals established by the Board for the Performance Period based upon the Performance Criteria. Performance Goals may be based on a Company-wide basis, with respect to one or more business units, divisions, Affiliates, or business segments, and in either absolute terms or relative to the performance of one or more comparable companies or the performance of one or more relevant indices. Unless specified otherwise by the Board (i) in the Award Agreement at the time the Award is granted or (ii) in such other document setting forth the Performance Goals at the time the Performance Goals are established, the Board will appropriately make adjustments in the method of calculating the attainment of Performance Goals for a Performance Period as follows: (1) to exclude restructuring and/or other nonrecurring charges; (2) to exclude exchange rate effects; (3) to exclude the effects of changes to generally accepted accounting principles; (4) to exclude the effects of any statutory adjustments to corporate tax rates; (5) to exclude the effects of items that are “unusual” in nature or occur “infrequently” as determined under generally accepted accounting principles; (6) to exclude the dilutive effects of acquisitions or joint ventures; (7) to assume that any business divested by the Company achieved performance objectives at targeted levels during the balance of a Performance Period following such divestiture; (8) to exclude the effect of any change in the outstanding shares of common stock of the Company by reason of any stock dividend or split, stock repurchase, reorganization, recapitalization, merger, consolidation, spin-off, combination or exchange of shares or other similar corporate change, or any distributions to common stockholders other than regular cash dividends; (9) to exclude the effects of stock based compensation and the award of bonuses under the Company’s bonus plans; (10) to exclude costs incurred in connection with potential acquisitions or divestitures that are required to be expensed under generally accepted accounting principles; and (11) to exclude the goodwill and intangible asset impairment charges that are required to be recorded under generally accepted accounting principles. In addition, the Board may establish or provide for other adjustment items in the Award Agreement at the time the Award is granted or in such other document setting for the Performance Goals at the time the Performance Goals are established. In addition, the Board retains the discretion to reduce or eliminate the compensation or economic benefit due upon attainment of Performance Goals and to define the manner of
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calculating the Performance Criteria it selects to use for such Performance Period. Partial achievement of the specified criteria may result in the payment or vesting corresponding to the degree of achievement as specified in the Award Agreement or the written terms of a Performance Cash Award.
(xx) “Performance Period” means the period of time selected by the Board over which the attainment of one or more Performance Goals will be measured for the purpose of determining a Participant’s right to vesting or exercise of an Award. Performance Periods may be of varying and overlapping duration, at the sole discretion of the Board.
(yy) “Plan” means this NeuroBo Pharmaceuticals, Inc. 2022 Equity Incentive Plan, as amended from time to time.
(zz) “Plan Administrator” means the person, persons, and/or third-party administrator designated by the Company to administer the day to day operations of the Plan.
(aaa) “Post-Termination Exercise Period” means the period following termination of a Participant’s Continuous Service within which an Option or SAR is exercisable, as specified in Section 4(h).
(bbb) “Prior Plan’s Available Reserve” means the number of shares available for the grant of new awards under the Prior Plan as of the Effective Date.
(ccc) “Prior Plan” means the Gemphire Therapeutics, Inc. 2019 Equity Incentive Plan.
(ddd) “Prospectus” means the document containing the Plan information specified in Section 10(a) of the Securities Act.
(eee) “Restricted Stock Award” or “RSA” means an Award of shares of the Common Stock which is granted pursuant to the terms and conditions of Section 5(a).
(fff) “Restricted Stock Award Agreement” means a written or electronic agreement between the Company and a holder of a Restricted Stock Award evidencing the terms and conditions of a Restricted Stock Award grant. The Restricted Stock Award Agreement includes the Grant Notice for the Restricted Stock Award and the agreement containing the written summary of the general terms and conditions applicable to the Restricted Stock Award and which is provided, including by electronic means, to a Participant along with the Grant Notice. Each Restricted Stock Award Agreement will be subject to the terms and conditions of the Plan.
(ggg) “Returning Shares” means shares subject to outstanding stock awards granted under the Prior Plan and that following the Effective Date: (A) are not issued because such stock award or any portion thereof expires or otherwise terminates without all of the shares covered by such stock award having been issued; (B) are not issued because such stock award or any portion thereof is settled in cash; (C) are forfeited back to or repurchased by the Company because of the failure to meet a contingency or condition required for the vesting of such shares; (D) are withheld or reacquired to satisfy the exercise, strike or purchase price; or (E) are withheld or reacquired to satisfy a tax withholding obligation.
(hhh) “RSU Award” or “RSU” means an Award of restricted stock units representing the right to receive an issuance of shares of the Common Stock which is granted pursuant to the terms and conditions of Section 5(a).
(iii) “RSU Award Agreement” means a written or electronic agreement between the Company and a holder of an RSU Award evidencing the terms and conditions of an RSU Award grant. The RSU Award Agreement includes the Grant Notice for the RSU Award and the agreement containing the written summary of the general terms and conditions applicable to the RSU Award and which is provided, including by electronic means, to a Participant along with the Grant Notice. Each RSU Award Agreement will be subject to the terms and conditions of the Plan.
(jjj) “Rule 16b-3” means Rule 16b-3 promulgated under the Exchange Act or any successor to Rule 16b-3, as in effect from time to time.
(kkk) “Rule 405” means Rule 405 promulgated under the Securities Act.
(lll) “Section 409A” means Section 409A of the Code and the regulations and other guidance thereunder.
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(mmm) “Section 409A Change in Control” means a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the Company’s assets, as provided in Section 409A(a)(2)(A)(v) of the Code and Treasury Regulations Section 1.409A-3(i)(5) (without regard to any alternative definition thereunder).
(nnn) “Securities Act” means the Securities Act of 1933, as amended.
(ooo) “Share Reserve” means the number of shares available for issuance under the Plan as set forth in Section 2(a).
(ppp) “Stock Appreciation Right” or “SAR” means a right to receive the appreciation on the Common Stock that is granted pursuant to the terms and conditions of Section 4.
(qqq) “SAR Agreement” means a written or electronic agreement between the Company and a holder of a SAR evidencing the terms and conditions of a SAR grant. The SAR Agreement includes the Grant Notice for the SAR and the agreement containing the written summary of the general terms and conditions applicable to the SAR and which is provided, including by electronic means, to a Participant along with the Grant Notice. Each SAR Agreement will be subject to the terms and conditions of the Plan.
(rrr) “Subsidiary” means, with respect to the Company, (i) any corporation of which more than 50% of the outstanding capital stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, stock of any other class or classes of such corporation will have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, Owned by the Company, and (ii) any partnership, limited liability company or other entity in which the Company has a direct or indirect interest (whether in the form of voting or participation in profits or capital contribution) of more than 50%.
(sss) “Ten Percent Stockholder” means a person who Owns (or is deemed to Own pursuant to Section 424(d) of the Code) stock possessing more than 10% of the total combined voting power of all classes of stock of the Company or any Affiliate.
(ttt) “Trading Policy” means the Company’s policy permitting certain individuals to sell Company shares only during certain “window” periods and/or otherwise restricts the ability of certain individuals to transfer or encumber Company shares, as in effect from time to time.
(uuu) “Unvested Non-Exempt Award” means the portion of any Non-Exempt Award that had not vested in accordance with its terms upon or prior to the date of any Corporate Transaction.
(vvv) “Vested Non-Exempt Award” means the portion of any Non-Exempt Award that had vested in accordance with its terms upon or prior to the date of a Corporate Transaction.
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