*
| | | | | | | | | | | | | | | | | | | | Shares of Common Stock Beneficially Owned | | Name of Beneficial Owner | | Common Stock | | | Number of Shares Exercisable Within 60 Days | | | Number of Shares Beneficially Owned | | | Percentage of Shares Beneficially Owned | | 5% and Greater Stockholders: | | | | | | | | | | | | | Entities Associated with Alyeska Investment Group, L.P.(2) | | | 697,448 | | | | 818,841 | | | | 1,516,289 | | | | 9.9 | % | Entities Associated with FMR LLC(1) | | | 1,363,120 | | | — | | | | 1,363,120 | | | | 9.5 | % | Entities Associated with ARCH Venture Partners(2) | | | 1,004,817 | | | — | | | | 1,004,817 | | | | 7.0 | % | Named Executive Officers and Directors: | | | | | | | | | | | | | Anirvan Ghosh, Ph.D.(4) | | | 44,441 | | | | 184,114 | | | | 228,555 | | | | 1.6 | % | Keith R. Leonard Jr.(5) | | | 21,541 | | | | 143,909 | | | | 165,450 | | | | 1.1 | % | Nathaniel E. David, Ph.D.(6) | | | 58,939 | | | | 5,218 | | | | 64,157 | | | * | | Lynne Sullivan(7) | | | 20,526 | | | | 54,216 | | | | 74,742 | | | * | | Jamie Dananberg, M.D.(8) | | | 53,701 | | | | 53,098 | | | | 106,799 | | | * | | Paul L. Berns(9) | | | 326 | | | | 15,974 | | | | 16,300 | | | * | | Michael P. Samar(10) | | — | | | | 1,666 | | | | 1,666 | | | * | | Gilmore O’Neill, M.B.(11) | | — | | | | 9,508 | | | | 9,508 | | | * | | Margo R. Roberts, Ph.D.(12) | | — | | | | 12,566 | | | | 12,566 | | | * | | Camille D. Samuels(13) | | | 1,016 | | | | 11,567 | | | | 12,583 | | | * | | All directors and executive officers as a group (11 persons)(14) | | | 203,754 | | | | 531,680 | | | | 735,434 | | | | 4.9 | % |
* Indicates beneficial ownership of less than 1% of the total outstanding common stock. (1)As reported on a Schedule 13G/A filed with the SEC on February 14, 2023. Alyeska Investment Group, L.P., Alyeska Fund GP, LLC and Anand Parekh (collectively, “Alyeska”) are the beneficial owners of 1,516,289 shares of common stock, which includes (i) 697,448 shares of common stock, and (ii) warrants to purchase 1,286,000 shares of our common stock, which warrants are subject to a beneficial ownership limitation that precludes Alyeska from exercising any portion of them to the extent that, following the exercise, the Alyeska’s beneficial ownership of common stock would exceed 9.99% of the total number of outstanding shares. The address of Alyeska is 77 West Wacker Drive, 7th Floor, Chicago, Illinois 60601. (2)As reported on a Schedule 13G/A filed with the SEC on February 9, 2023. Abigail P. Johnson is a Director, the Chairman and the Chief Executive Officer of FMR LLC. Members of the Johnson family, including Abigail P. Johnson, are the predominant owners, directly or through trusts, of Series B voting common shares of FMR LLC, representing 49% of the voting power of FMR LLC. The Johnson family group and all other Series B shareholders have entered into a shareholders’
voting agreement under which all Series B voting common shares will be voted in accordance with the majority vote of Series B voting common shares. Accordingly, through their ownership of voting common shares and the execution of the shareholders’ voting agreement, members of the Johnson family may be deemed, under the Investment Company Act of 1940, to form a controlling group with respect to FMR LLC. Neither FMR LLC nor Abigail P. Johnson has the sole power to vote or direct the voting of the shares owned directly by the various investment companies registered under the Investment Company Act (“Fidelity Funds”) advised by Fidelity Management & Research Company, a wholly owned subsidiary of FMR LLC, which power resides with the Fidelity Funds’ Boards of Trustees. Fidelity Management & Research Company carries out the voting of the shares under written guidelines established by the Fidelity Funds’ Boards of Trustees. FMR LLC and Abigail P. Johnson may be deemed to have beneficial ownership of 1,363,120 shares of common stock. The address of FMR LLC is 245 Summer Street, Boston, Massachusetts 02210. (3)As reported on a Schedule 13G/A filed with the SEC on February 11, 2022. Consists of (i) 836,576 shares of common stock held by ARCH Venture Fund VII, L.P. (“ARCH VII”), and (ii) 168,241 shares of common stock held by ARCH Venture Fund VIII Overage, L.P. (“ARCH VIII Overage”). ARCH Venture Partners VII, L.P. (“AVP VII LP”), as the sole general partner of ARCH VII, may be deemed to beneficially own certain of the shares held by ARCH VII. AVP VII LP disclaims beneficial ownership of all shares held by ARCH VII in which AVP VII LP does not have an actual pecuniary interest. ARCH Venture Partners VII, LLC (“AVP VII LLC”), as the sole general partner of AVP VII LP, may be deemed to beneficially own the shares held by ARCH VII. AVP VII LLC disclaims beneficial ownership of all shares held by ARCH VII in which AVP VII LLC does not have an actual pecuniary interest. ARCH Venture Partners VIII, LLC (“AVP VIII LLC”), as the sole general partner of ARCH VIII Overage, may be deemed to beneficially own the shares held by ARCH VIII Overage. AVP VIII LLC disclaims beneficial ownership of all shares held by ARCH VIII Overage in which AVP VIII LLC does not have an actual pecuniary interest. As managing directors of AVP VII LP and AVP VIII LLC, each of Keith Crandell, Clinton Bybee, and Robert T. Nelsen (the “ARCH Managing Directors”) may be deemed to share the power to direct the disposition and vote of, and therefore to beneficially own, the shares held by ARCH VII and ARCH VIII Overage. The ARCH Managing Directors disclaim beneficial ownership of all shares held by ARCH VII and ARCH VIII Overage except to the extent of any actual pecuniary interest. The address of ARCH VII, ARCH Overage VIII, AVP VII LP, AVP VII LLC, AVP VIII LLC, and the ARCH Managing Directors is 8755 West Higgins Avenue, Suite 1025, Chicago, Illinois 60631. The shares of common stock referenced herein have been adjusted to reflect our October 2022 reverse stock split. (4)Consists of (i) 44,441 shares of common stock, and (ii) 178,350 shares of common stock that may be acquired pursuant to the exercise of stock options and (iii) 5,764 shares of common stock subject to RSUs that vest within 60 days of April 24, 2023. (5)Consists of (i) 6,287 shares of common stock, (ii) 15,254 shares of common stock held by Keith Richard Leonard Jr. 2017 Retained Annuity Trust, and (iii) 143,909 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (6)Consists of (i) 58,939 shares of common stock, and (ii) 5,218 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (7)Consists of (i) 20,526 shares of common stock, and (ii) 51,799 shares of common stock that may be acquired pursuant to the exercise of stock options and (iii) 2,417 shares of common stock subject to RSUs that vest within 60 days of April 24, 2023. (8)Consists of (i) 53,701 shares of common stock, and (ii) 50,716 shares of common stock that may be acquired pursuant to the exercise of stock options and (iii) 2,382 shares of common stock subject to RSUs that vest within 60 days of April 24, 2023. (9)Consists of (i) 326 shares of common stock, and (ii) 15,974 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (10)Consists of 1,666 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (11)Consists of 9,508 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (12)Consists of 12,566 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (13)Consists of (i) 1,016 shares of common stock, and (ii) 11,567 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023. (14)Consists of (i) the shares described in notes 4 through 13 above, (ii) 3,264 shares of common stock, and (iii) 39,844 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of April 24, 2023.
DELINQUENT SECTION 16(a) REPORTS Section 16(a) of the Exchange Act requires the Company’s directors and executive officers, and persons who own more than 10% of a registered class of the Company’s equity securities, to file with the SEC initial reports of ownership and reports of changes in ownership of common stock and other equity securities of the Company. Officers, directors, and greater than 10% stockholders are required by SEC regulations to furnish the Company with copies of all Section 16(a) forms they file. To the Company’s knowledge, based solely on a review of the copies of such reports furnished to the Company and written representations that no other reports were required, the Company believes that all Section 16(a) filing requirements applicable to our officers, directors and greater than 10% beneficial owners were complied with during the year ended December 31, 2022, except for a Form 4 for each of Anirvan Ghosh, Ph.D., Lynne Sullivan, Jamie Dananberg, M.D., and Alexander Nguyen that were inadvertently filed two days late on February 15, 2022 due to administrative error.
Householding of Proxy Materials The SEC has adopted rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more stockholders sharing the same address by delivering a single proxy statement addressed to those stockholders. This process, which is commonly referred to as “householding,” potentially means extra convenience for stockholders and cost savings for companies. Brokers with account holders who are Unity stockholders may be “householding” our proxy materials. A single proxy statement may be delivered to multiple stockholders sharing an address unless contrary instructions have been received from 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 notify your broker or the Company that you no longer wish to participate in “householding.” If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate proxy statement and annual report, you may (1) notify your broker, (2) direct your written request to: Unity Biotechnology, Inc., 285 East Grand Ave., South San Francisco, CA 94080 or (3) request from the Company by calling (650) 416-1192. Stockholders who currently receive multiple copies of this Proxy Statement at their address and would like to request “householding” of their communications should contact their broker. In addition, the Company will promptly deliver, upon written or oral request to the address or telephone number above, a separate copy of the Form 10-K, Proxy Statement, Proxy Card, or Notice of Internet Availability of Proxy Materials to a stockholder at a shared address to which a single copy of the documents was delivered. As of the date of this Proxy Statement, the Board does not intend to present any matters other than those described herein at the Annual Meeting and is unaware of any matters to be presented by other parties. If other matters are properly brought before the Annual Meeting for action by the stockholders, proxies will be voted in accordance with the recommendation of the Board or, in the absence of such a recommendation, in the discretion of the proxy holder. We have filed our Annual Report on Form 10-K for the year ended December 31, 2022 with the SEC. It is available free of charge at the SEC’s web site at www.sec.gov. Upon written request by a Unity stockholder, we will mail without charge a copy of our Annual Report on Form 10-K, including the financial statements and financial statement schedules, but excluding exhibits to the Annual Report on Form 10-K. Exhibits to the Annual Report on Form 10-K are available upon payment of a reasonable fee, which is limited to our expenses in furnishing the requested exhibit. All requests should be directed to the Corporate Secretary, Unity Biotechnology, Inc., 285 East Grand Ave., South San Francisco, CA 94080. | | | By Order of the total outstanding common stock.Board of Directors /s/ Anirvan Ghosh | April 28, 2023 | Anirvan Ghosh, Ph.D. Chief Executive Officer and Director |
(1)
| As reported on a Schedule 13G/A filed with the SEC on February 11, 2022. Consists of (i) 8,365,764 shares of common stock held by ARCH Venture Fund VII, L.P. (“ARCH VII”), and (ii) 1,682,417 shares of common stock held by ARCH Venture Fund VIII Overage, L.P. (“ARCH VIII Overage”). ARCH Venture Partners VII, L.P. (“AVP VII LP”), as the sole general partner of ARCH VII, may be deemed to beneficially own certain of the shares held by ARCH VII. AVP VII LP disclaims beneficial ownership of all shares held by ARCH VII in which AVP VII LP does not have an actual pecuniary interest. ARCH Venture Partners VII, LLC (“AVP VII LLC”), as the sole general partner of AVP VII LP, may be deemed to beneficially own the shares held by ARCH VII. AVP VII LLC disclaims beneficial ownership of all shares held by ARCH VII in which AVP VII LLC does not have an actual pecuniary interest. ARCH Venture Partners VIII, LLC (“AVP VIII LLC”), as the sole general partner of ARCH VIII Overage, may be deemed to beneficially own the shares held by ARCH VIII Overage. AVP VIII LLC disclaims beneficial ownership of all shares held by ARCH VIII Overage in which AVP VIII LLC does not have an actual pecuniary interest. As managing directors of AVP VII LP and AVP VIII LLC, each of Keith Crandell, Clinton Bybee, and Robert T. Nelsen (the “ARCH Managing Directors”) may be deemed to share the power to direct the disposition and vote of, and therefore to beneficially own, the shares held by ARCH VII and ARCH VIII Overage. The ARCH Managing Directors disclaim beneficial ownership of all shares held by ARCH VII and ARCH VIII Overage except to the extent of any actual pecuniary interest. The address of ARCH VII, ARCH Overage VIII, AVP VII LP, AVP VII LLC, AVP VIII LLC, and the ARCH Managing Directors is 8755 West Higgins Avenue, Suite 1025, Chicago, Illinois 60631. |
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(2)
| Consists of (i) 62,880 shares of common stock, (ii) 152,542 shares of common stock held by Keith Richard Leonard Jr. 2017 Retained Annuity Trust, and (iii) 1,427,988 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(3)
| Consists of (i) 367,247 shares of common stock, (ii) 159,745 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022, and (iii) 25,000 shares of common stock subject to restricted stock units (“RSUs”) that vest within 60 days of August 29, 2022. |
(4)
| Consists of (i) 159,536 shares of common stock, (ii) 191,111 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022, and (iii) 20,000 shares of common stock subject to RSUs that vest within 60 days of August 29, 2022. |
(5)
| Consists of (i) 501,551 shares of common stock, (ii) 234,397 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022, and (iii) 20,000 shares of common stock subject to RSUs that vest within 60 days of August 29, 2022. |
(6)
| Consists of (i) 3,261 shares of common stock, and (ii) 159,745 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(7)
| Consists of (i) 589,398 shares of common stock, and (ii) 41,084 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(8)
| Consists of 77,313 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(9)
| Consists of 125,661 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(10)
| Consists of 6,944 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(11)
| Consists of (i) 10,169 shares of common stock, and (ii) 115,678 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022. |
(12)
| Consists of (i) 1,848,320 shares of common stock, (ii) 3,300,197 shares of common stock that may be acquired pursuant to the exercise of stock options within 60 days of August 29, 2022, and (iii) 65,000 shares of common stock subject to RSUs that vest within 60 days of August 29, 2022. |
TABLE OF CONTENTSVOTE BY INTERNET Before The Meeting - Go to www.proxyvote.com or scan the QR Barcode above
APPROVAL OF THE REVERSE STOCK SPLIT PROPOSAL
Background
Use the Internet to transmit your voting instructions and for electronic delivery of information. Vote by 11:59 P.M. ET on June 22, 2023. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. During The Meeting - Go to www.virtualshareholdermeeting.com/UBX2023 You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked by the arrow available and follow the instructions. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions. Vote by 11:59 P.M. ET on June 22, 2023. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. Ratification of the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm for its fiscal year ending December 31, 2023. NOTE: Such other business as may properly come before the meeting or any adjournment thereof. For All Withhold All Except For Against Abstain To withhold authority to vote for any individual nominee(s), mark "For All Except" and write the number(s) of the nominee(s) on the line below. Paul L. Berns Michael P. Samar Camille D. Samuels Election of three Class II Directors Nominees: The Board of Directors has approvedrecommends you vote FOR SCAN TO VIEW MATERIALS & VOTE UNITY BIOTECHNOLOGY, INC. VOTE BY INTERNET Before The Meeting - Go to www.proxyvote.com or scan the QR Barcode above Use the Internet to transmit your voting instructions and for electronic delivery of information. Vote by 11:59 P.M. ET on June 23, 2022. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction form. During The Meeting - Go to www.virtualshareholdermeeting.com/UBX2022 You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked by the arrow available and follow the instructions. VOTE BY PHONE - 1-800-690-6903. Vote by 11:59 P.M. ET on June 23, 2022. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. For All Withhold All For All Except To withhold authority to vote for any individual nominee(s), mark "For All Except" and write the number(s) of the nominee(s) on the line below. UNITY BIOTECHNOLOGY, INC. The Board of Directors recommends you vote FOR proposals 1, 2, and 3: 1. Election of three Class I Directors Nominees: 01) Nathaniel E. David, Ph.D. 02) Anirvan Ghosh, Ph.D. 03) Gilmore O'Neill, M.B. For Against Abstain 2. Ratification of the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm for its fiscal year ending December 31, 2022. 3. Approval of a series of proposedalternate amendments to the Company’sCompany's amended and restated certificate of incorporation, (the “Certificateto effect, at the discretion of Incorporation”), that would effectthe Board, a reverse stock split of the Company’sCompany's common stock, whereby each outstanding 5, 6, 7, 8, 9, 10, 11, or 1210 shares would be combined, converted and changed into one share of the Company’s common stock. We refer toNOTE: Such other business as may properly come before the meeting or any adjournment thereof. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Important Notice Regarding the Availability of Proxy Materials for the alternative amendments in thisAnnual Meeting: The Annual Report and Proxy Statement as a “Reverse Stock Split.” are available at www.proxyvote.com.|
Availability of Proxy Materials for the Annual Meeting: The effectiveness of any one of these amendmentsAnnuReport and the abandonment of the other amendments, or the abandonment of all of these amendments, will be determined by the Board of Directors following the Special Meeting and prior to the Company’s annual meeting of stockholders to be held in 2023 (the “2023 Annual Meeting”). The Board of Directors has declared these proposed amendments to be advisable and has recommended that these proposed amendments be presented to the Company’s stockholders for approval. Upon receiving stockholder approval of the proposed amendments, the Board of Directors will have the sole discretion, until theProxy Statement are available at www.proxyvote.com. 2023 Annual Meeting of Stockholders June 23, 2023 9:00 AMThe stockholder(s) hereby appoint(s) Anirvan Ghosh and Alexander H. Nguyen, or either of them, as proxies, each with the power to elect,appoint his substitute, and hereby authorize(s) them to represent and to vote, as it determines to be indesignated on the best interestsreverse side of this ballot, all of the Company and its stockholders, whether to effect a reverse stock split and, if so, the number of shares – 6, 7, 8, 9, 10, 11, or 12 – of common stock which will be combined into one share of common stock. The Board of Directors believes that stockholder approval of these seven selected reverse split ratios (as opposed to approval of a single reverse split ratio) provides the Board of Directors with maximum flexibility to achieve the purposes of a reverse stock split and, therefore, is in the best interests of the Company and its stockholders. If the Board of Directors determines to effect one of the alternative Reverse Stock Splits by filing the applicable amendment to the Certificate of Incorporation with the Secretary of State of the State of Delaware (the “Delaware Secretary of State”), the Certificate of Incorporation would be amended accordingly, and all other amendments will be abandoned. Approval of the Reverse Stock Splits will authorize the Board in its discretion to effectuate a Reverse Stock Split in any of the ratios described above, or not to effect any of the Reverse Stock Splits. The text of the form of amendments to the Certificate of Incorporation, one of which would be filed with the Delaware Secretary of State to effect the Reverse Stock Split, are set forth in Appendix A to this Proxy Statement. However, such text is subject to amendment to include such changes as may be required by the office of the Delaware Secretary of State or as the Board of Directors deems necessary and advisable to effect the Reverse Stock Split.
If the Board of Directors elects to effect a Reverse Stock Split following stockholder approval, for Reverse Stock Splits in the range of 1-for-6 to 1-for-12, the number of issued and outstanding shares of common stock wouldof UNITY BIOTECHNOLOGY, INC. that the stockholder(s) is/are entitled to vote at the Annual Meeting of Stockholders to be reduced in accordance withheld at 9:00 AM, PDT on June 23, 2023, virtually via a reverse split ratio selected by the Board of Directors from among those set forth in this proposal. Except for adjustments that may result from the treatment of fractional shares as described below, each stockholderlive webcast at www.virtualshareholdermeeting.com/UBX2023, and any adjournment or postponement thereof. This proxy, when properly executed, will hold the same percentage of outstanding common stock immediately following the Reverse Stock Split as such stockholder held immediately prior to the Reverse Stock Split. The par value of the common stock would remain unchanged at $0.0001 per share. The number of shares of common stock underlying outstanding equity awards and available for future awards under our equity incentive plans as well as the number of shares issuable upon exercise of outstanding warrants would also be proportionately reducedvoted in the same manner as a result of the Reverse Stock Split. The Reverse Stock Splits would not change the number of authorized shares of common stock. There are currentlydirected herein. If no specific plans, arrangements, agreements, or understandings for the issuance of the additional authorized but unissued and unreserved shares of common stock that would be created by the Reverse Stock Split.
Reasons for the Reverse Stock Split
Although the proposed Reverse Stock Split will not have the effect of increasing the Company’s equity market capitalization, we believe that implementing one of the alternative Reverse Stock Splits could provide benefits to the Company and our existing stockholders in a number of ways, including:
1.
| Maintaining our listing on the Nasdaq Global Select Market. Our common stock is currently listed for trading on the Nasdaq Global Select Market under the symbol “UBX.” The continued listing of our common stock on Nasdaq is subject to our compliance with a number of listing standards. On June 3, 2022, we received a letter from the Listing Qualifications Staff of The Nasdaq Stock Market LLC (“Nasdaq”), indicating that for the last 30 consecutive business days, the closing bid price of our common stock was below $1.00 per share, which is
|
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the minimum required closing bid price for continued listing on the Nasdaq Global Select Market pursuant to Listing Rule 5450(a)(1). We have 180 calendar days, or until November 30, 2022, to regain compliance. To regain compliance, the closing bid price of our common stock must be at least $1.00 per share for a minimum of ten consecutive business days. There can be no assurance that wesuch direction is made, this proxy will be able to regain compliance with these requirements or that our common stock will continue to be listed on Nasdaq.
If we are unable to regain compliance by November 30, 2022, we may be eligible for consideration of a second 180-day compliance period. There can be no assurance that, if we were to effect one of the Reverse Stock Splits after obtaining the required approvals and intending to regain compliance, that such Reverse Stock Split would cause our common stock to meet the bid price requirement. If we fail to regain compliance with the Nasdaq continued listing standards, Nasdaq will provide notice that our common stock will be subject to delisting.
The Board of Directors has considered the potential harm to the Company and its stockholders should Nasdaq delist our common stock from the Nasdaq Global Select Market. Delisting could adversely affect the liquidity of our common stock because alternatives, such as the OTC Bulletin Board and the pink sheets, are generally considered to be less liquid and efficient markets. An investor likely would find it less convenient to sell, or to obtain accurate quotations in seeking to buy, our common stock on an over-the-counter market. Many investors likely would not buy or sell our common stock due to difficulty in accessing over-the-counter markets, policies preventing them from trading in securities not listed on a national exchange or other reasons. Current contractual arrangements also require that the Company take commercially reasonable efforts to maintain its listing. The Board of Directors believes that a reverse stock split is a potentially effective means for us to regain compliance and to avoid the adverse consequences of our common stock being delisted from the Nasdaq Global Select Market by producing the immediate effect of increasing the bid price for our common stock.
2.
| Stock Price Volatility. We have been advised by our financial advisors that a higher stock price may increase the acceptability of our common stock to investors who may not find shares of our common stock attractive at the current market price due to the trading volatility often associated with stocks below certain prices.
|
3.
| Transaction Costs. Investors also may be dissuaded from purchasing stocks below certain prices because the brokerage commissions, as a percentage of the total transaction value, tend to be higher for such low-priced stocks.
|
4.
| Stock Price Requirements. We understand that many brokerage houses and institutional investors have internal policies and practices that either prohibit them from investing in low-priced stocks or tend to discourage individual brokers from recommending low-priced stocks to their customers or by restricting or limiting the ability to purchase such stocks on margin.
|
Board Discretion to Implement or Abandon Reverse Stock Split
If the alternative Reverse Stock Splits are approved by the Company’s stockholders at the Special Meeting, the actual Reverse Stock Split will be effected, if at all, only upon a subsequent determination by the Board of Directors that one of the Reverse Stock Splits is, at that time, in the best interests of the Company and its stockholders. Such determination will be based upon many factors, including the trading price of our common stock relative to the Nasdaq minimum listing requirements, as well as those other factors described in the following paragraph. Notwithstanding approval of the Reverse Stock Splits by the stockholders, the Board of Directors may, in its sole discretion, abandon all of the proposed amendments and determine prior to the effectiveness of any filing with the Delaware Secretary of State not to effect any of the Reverse Stock Splits. If the Board of Directors decides not to implement any of the Reverse Stock Splits before the 2023 Annual Meeting, further stockholder approval would be required prior to implementing any reverse stock split.
Criteria to Be Used for Decision to Effect a Reverse Stock Split
If the stockholders approve the Reverse Stock Splits, the Board of Directors will be authorized to proceed with any of the alternative Reverse Stock Splits that it selects in its sole discretion. In determining whether to proceed with a Reverse Stock Split, the Board of Directors expects to consider a number of factors, including market conditions, existing and expected trading prices of our common stock, the Nasdaq Global Select Market listing requirements, our additional funding
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requirements, and the amount of our authorized but unissued common stock. The Board of Directors does not intend for this transaction to be the first step in a series of plans or proposals of a “going private” transaction within the meaning of Rule 13e-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Effects of the Reverse Stock Split
After any of the Reverse Stock Splits, each stockholder will own a reduced number of shares of common stock. This would affect all of the Company’s stockholders uniformly and would not affect any stockholder’s percentage ownership in the Company, except to the extent that the Reverse Stock Split results in a stockholder owning a fractional share as described below. The number of stockholders of record would not be affected by the Reverse Stock Split, except to the extent that any stockholder holds only a fractional share interest and receives cash for such interest after the Reverse Stock Split.
Proportionate voting rights and other rights of the holders of common stock would not be affected by the Reverse Stock Split (other than as a result of the payment of cash in lieu of fractional shares as described below). For example, a holder of 5% of the voting power of the outstanding shares of common stock immediately prior to the Reverse Stock Split would continue to hold 5% of the voting power of the outstanding shares of common stock after the Reverse Stock Split.
Our Certificate of Incorporation presently authorizes 300,000,000 shares of common stock and 10,000,000 shares of preferred stock. The Reverse Stock Splits would not change the number of authorized shares of common stock or preferred stock. Therefore, because the number of issued and outstanding shares of common stock would decrease, the number of shares remaining available for issuance by us in the future would increase. These additional shares would be available for issuance from time to time for corporate purposes such as issuances of common stock in connection with capital-raising transactions and acquisitions of companies or other assets, as well as for issuance upon conversion or exercise of securities such as convertible debt, warrants, or options convertible into or exercisable for common stock. We believe that the availability of the additional shares will provide us with flexibility to meet business needs as they arise, to take advantage of favorable opportunities, and to respond effectively in a changing corporate environment. If we issue additional shares for any of these purposes, the aggregate ownership interest of our current stockholders, and the interest of each such existing stockholder, would be diluted, possibly substantially. The Company regularly considers its capital requirements and may conduct securities offerings, including equity and/or equity linked offerings, in the future, such as pursuant to those agreements discussed under “—Effects of the Reverse Stock Split—Additional Agreements.” There are currently no specific plans, arrangements, agreements, or understandings for the issuance of the additional authorized but unissued and unreserved shares of common stock that would be created by the Reverse Stock Split.
The increase in the number of shares of authorized but unissued and unreserved common stock will have an “anti-takeover effect” by permitting the issuance of shares to purchasers who might oppose a hostile takeover bid or oppose any efforts to amend or repeal certain provisions of the Certificate of Incorporation or the Bylaws. The increased number of available authorized but unissued shares as a result of the Reverse Stock Split would give the Company’s management more flexibility to resist or impede a third-party takeover bid that provides an above-market premium that is favored by a majority of the independent stockholders. Although not designed or intended for such purposes, the effect of the increased available shares might be to make more difficult or to discourage an attempt to take over or otherwise acquire control of the Company (for example, by permitting issuances that would dilute the stock ownership of a person or entity seeking to effect a change in the composition of the board of directors or contemplating a tender offer or other change in control transaction). Any such anti-takeover effect of a reverse stock split would be in addition to existing anti-takeover provisions of the Certificate of Incorporation and the Bylaws.
Our Board of Directors is not presently aware of any attempt, or contemplated attempt, to acquire control of the Company, and the Reverse Stock Split Proposal is not part of any plan by our Board of Directors to recommend or implement a series of anti-takeover measures.
The Reverse Stock Split would reduce the number of shares of common stock available for issuance under the Company’s 2018 Incentive Award Plan in proportion to the reverse split ratio of the Reverse Stock Split. On August 29, 2022 the number of shares of common stock authorized for issuance but unissued under the 2018 Incentive Award Plan was 7,029,071.
The Reverse Stock Split would reduce the number of shares of common stock available for issuance under the Company’s 2018 Employee Stock Purchase Plan in proportion to the reverse split ratio of the Reverse Stock Split. On August 29, 2022 the number of shares of common stock authorized for issuance but unissued under the 2018 Employee Stock Purchase Plan was 2,094,314.
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The Reverse Stock Split would reduce the number of shares of common stock available for issuance under the Company’s 2020 Employment Inducement Incentive Plan in proportion to the reverse split ratio of the Reverse Stock Split. On August 29, 2022 the number of shares of common stock authorized for issuance but unissued under the 2020 Employment Inducement Incentive Plan was 581,668.
The Company also has 10,794,848 shares of common stock subject to outstanding stock awards as of August 29, 2022. Under the terms of the various instruments governing the Company’s outstanding stock awards, the Reverse Stock Split will effect a reduction in the number of shares of common stock issuable upon the exercise of such stock awards in proportion to the reverse split ratio of the Reverse Stock Split. The Reverse Stock Split will effect a proportionate increase in the exercise price of the Company’s outstanding stock options. In connection with the Reverse Stock Split, the number of shares of common stock issuable upon exercise or conversion of outstanding stock awards will be rounded down to the nearest whole share and the exercise prices will be rounded up to the nearest cent, and no cash payment will be made in respect of such rounding.
Warrants
In addition, we have issued to third-party investors warrants to purchase shares of our common stock. Each whole warrant entitles the holder thereof to purchase one share of our common stock at $0.85 per share. As of August 29, 2022, a total of 64,285,714 warrants remained outstanding.
If the Reverse Stock Split is approved and effected, under the terms of the warrant agency agreement, the number of shares of common stock issuable on exercise of each warrant will be decreased, and the warrant purchase price will be proportionately adjusted (to the nearest cent), in each case, based on the Reverse Stock Split ratio selected by our Board of Directors. The terms of our outstanding warrants do not permit issuance of fractional shares upon exercise of warrants. Instead, the number of shares issuable shall be rounded up upon exercise of those warrants.
Additional Agreements
In March 2022, we entered into a sales agreement, as amended in August 2022 (the “2022 Sales Agreement”), for an “at the market” offering with Cowen and Company, LLC relating to shares of our common stock having an aggregate offering price of up to $25.0 million. As of August 29, 2022, approximately $16.1 million of shares of common stock remains available for sale under the 2022 Sales Agreement, as amended. There can be no assurance as to whether or, if so, how many or when, additional shares will be issued by us thereunder.
In September 2021, we entered into an equity purchase agreement (the “September 2021 Purchase Agreement”) with Lincoln Park Capital Fund, LLC (“Lincoln Park”), which provides for the sale to Lincoln Park of up to $30.0 million of shares of common stock over the thirty-six month term. As of August 29, 2022, approximately $20.8 million of shares of common stock remains available for sale by us under the September 2021 Purchase Agreement. There can be no assurance as to whether or, if so, how many or when, additional shares will be issued by us thereunder.
The following table contains approximate information relating to the common stock under each of the proposed amendments based on share information as of August 29, 2022:
Authorized | | | 300,000,000 | | | 300,000,000 | | | 300,000,000 | | | 300,000,000 | | | 300,000,000 | | | 300,000,000 | | | 300,000,000 | | | 300,000,000 | Outstanding | | | 140,226,122 | | | 23,371,020 | | | 20,032,303 | | | 17,528,265 | | | 15,580,680 | | | 14,022,612 | | | 12,747,829 | | | 11,685,510 | Reserved for future issuance pursuant to employee benefit plans | | | 9,705,053 | | | 1,617,508 | | | 1,386,436 | | | 1,213,131 | | | 1,078,339 | | | 970,505 | | | 882,277 | | | 808,754 | Reserved for future issuance pursuant to outstanding stock awards | | | 10,794,848 | | | 1,799,141 | | | 1,542,121 | | | 1,349,356 | | | 1,199,427 | | | 1,079,484 | | | 981,349 | | | 899,570 | Number of shares issuable upon exercise of outstanding warrants | | | 64,285,714 | | | 10,714,286 | | | 9,183,674 | | | 8,035,715 | | | 7,142,858 | | | 6,428,572 | | | 5,844,156 | | | 5,357,143 | Authorized but unissued and unreserved(1)(2) | | | 74,988,263 | | | 262,498,045 | | | 267,855,466 | | | 271,873,533 | | | 274,998,696 | | | 277,498,827 | | | 279,544,389 | | | 281,249,023 |
(1)
| Includes shares of common stock, if any, that may be issued pursuant to the 2022 Sales Agreement or the September 2021 Purchase Agreement. |
(2)
| Includes 55,900 shares of common stock that the Company may be obligated to issue under its license agreements. |
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No fractional shares of common stock will be issued in connection with the proposed Reverse Stock Split. Holders of common stock who would otherwise receive a fractional share of common stock pursuant to the Reverse Stock Split will receive cash in lieu of the fractional share as explained more fully below. Any fractional shares to be issued to holders of warrants to purchase shares of our common stock will be treated as discussed under “—Effects of Reverse Stock Split – Warrants” above.
The common stock is currently registered under Section 12(b) of the Exchange Act, and the Company is subject to the periodic reporting and other requirements of the Exchange Act. The Reverse Stock Split would not affect the registration of the common stock under the Exchange Act. After the Reverse Stock Split, the common stock would continue to be reported on the Nasdaq Global Select Market under the symbol “UBX.”
Certain Risks and Potential Disadvantages Associated with the Reverse Stock Split
If the Reverse Stock Split is implemented, some stockholders may consequently own less than one hundred shares of common stock. A purchase or sale of less than one hundred shares (an “odd lot” transaction) may result in incrementally higher trading costs through certain brokers, particularly “full service” brokers. Therefore, those stockholders who own less than one hundred shares following the Reverse Stock Split may be required to pay modestly higher transaction costs should they then determine to sell their shares in the Company.
The effect of the Reverse Stock Split upon the market prices for the common stock cannot be accurately predicted, and the history of similar stock split combinations for companies in like circumstances is varied. In particular, there is no assurance that the price per share of our common stock after the Reverse Stock Split will be six, seven, eight, nine, ten, eleven or twelve times, as applicable, the price per share of our common stock immediately prior to the Reverse Stock Split. Furthermore, there can be no assurance that the market price of the common stock immediately after the proposed Reverse Stock Split will be maintained for any period of time. Even if an increased share price can be maintained, the Reverse Stock Split may not achieve the other desired results which have been outlined above. In particular, we cannot assure you that the proposed Reverse Stock Split will increase our stock price and have the desired effect of maintaining compliance with applicable Nasdaq rules for listing on the Nasdaq Global Select Market. Moreover, because some investors may view a Reverse Stock Split negatively, there can be no assurance that approval of the Reverse Stock Splits will not adversely impact the market price of the common stock or, alternatively, that the market price following the Reverse Stock Split will either exceed or remain in excess of the current market price.
In addition, although we believe the Reverse Stock Split may enhance the desirability of our common stock to certain potential investors, we cannot assure you that, if implemented, our common stock will be more attractive to institutional and other long term investors or that the liquidity of our common stock will increase since there would be a reduced number of shares outstanding after the Reverse Stock Split.
Effective Date
If the proposed Reverse Stock Splits are approved at the Special Meeting and the Board of Directors elects to proceed with the Reverse Stock Split in one of the approved ratios, the Reverse Stock Split would become effective as of 5:00 p.m., Eastern time, on the date of the filing (the “Effective Time”) of the applicable certificate of amendment to the Certificate of Incorporation with the office of the Delaware Secretary of State. Except as explained below with respect to fractional shares, at the Effective Time, all shares of common stock issued and outstanding immediately prior thereto will be, automatically and without any action on the part of the stockholders, combined and converted into new shares of common stockvoted in accordance with the Reverse Stock Split ratio determined by the Board following the Special Meeting. If the Board decides not to implement any of the Reverse Stock Splits before the 2023 Annual Meeting, further stockholder approval would be required prior to implementing any reverse stock split.
Exchange of Stock Certificates
As soon as practicable after the effective date of the Reverse Stock Split, stockholders will be notified that the Reverse Stock Split has been effected. Computershare Trust Company, N.A., our transfer agent, will act as exchange agent for purposes of implementing the exchange of stock certificates. Holders of pre-split shares 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 our 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
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transmittal. STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATES AND SHOULD NOT SUBMIT THEIR STOCK CERTIFICATES UNTIL THEY RECEIVE A TRANSMITTAL FORM FROM OUR 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. These shares will automatically reflect the new quantity of shares based on the selected Reverse Stock Split ratio. Beginning on the effective date of the Reverse Stock Split, each certificate representing pre-split shares will be deemed for all corporate purposes to evidence ownership of post-split shares.
Cash Payment In Lieu of Fractional Shares
No fractional shares of common stock will be issued as a result of the Reverse Stock Split. Instead, in lieu of any fractional shares to which a holder of common stock would otherwise be entitled as a result of the Reverse Stock Split, the Company shall pay cash equal to such fraction multiplied by the closing sales price of the common stock as reported on the Nasdaq Global Select Market on the last trading day immediately preceding the Effective Time. As of August 29, 2022, there were approximately 54 stockholders of record of our common stock. Upon stockholder approval of this proposal, if the Board of Directors elects to implement the Reverse Stock Split, the Company does not expect that cashing out fractional stockholders would significantly reduce the number of stockholders of record.
The Board of Directors reserves the right to abandon the Reverse Stock Split without further action by our stockholders at any time before the effectiveness of the certificate of amendment, even if the Reverse Stock Split has been authorized by our stockholders. By voting in favor of the Reverse Stock Split, you are expressly also authorizing the Board to determine not to proceed with, and to abandon, the Reverse Stock Split if it should so decide.
No Appraisal Rights
Under the DGCL, our stockholders do not have a right to dissent and are not entitled to appraisal rights with respect to the proposed amendments to our Certificate of Incorporation to effect the Reverse Stock Split, and we will not independently provide our stockholders with any such rights.
Certain Material U.S. Federal Income Tax Consequences
The following summary describes certain material U.S. federal income tax consequences of the proposed reverse stock split to holders of our common stock, but does not purport to be a complete analysis of all potential tax effects. This discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the U.S. Internal Revenue Service (the “IRS”) in effect as of the date of this Proxy Statement. These authorities may change or be subject to differing interpretations. Any such change may be applied retroactively in a manner that could adversely affect a holder of our common stock. We have not sought and will not seek any rulings from the IRS regarding the matters discussed below. There can be no assurance that the IRS or a court will not take a contrary position regarding the tax consequences of the proposed reverse stock split.
This discussion is limited to holders that hold our common stock as a “capital asset” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a holder’s particular circumstances, including the impact of the Medicare contribution tax. In addition, it does not address consequences relevant to holders subject to special rules or to holders that are partnerships for U.S. federal income tax purposes. Holders should consult their own tax advisors regarding the U.S. federal, state, local, and foreign income and other tax consequences of the proposed reverse stock split.
Tax Consequences to U.S. Holders
For purposes of this discussion, a “U.S. holder” is a beneficial owner of our common stock who is for U.S. federal income tax purposes: (i) an individual who is a citizen or resident of the United States; (ii) a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States, any state thereof, or the District of Columbia; or (iii) an estate or trust the income of which is subject to U.S. federal income taxation regardless of its source.
Directors' recommendations.|
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The proposed reverse stock split should be treated as a recapitalization for U.S. federal income tax purposes. Therefore, except as described below with respect to cash received in lieu of fractional shares, no gain or loss will be recognized upon the proposed reverse stock split. Accordingly, the aggregate tax basis of the U.S. holder in the new shares should equal the U.S. holder’s aggregate tax basis in its old shares of common stock (excluding the portion of the tax basis that is allocable to any fractional share), and the holding period for the new shares should include the holding period for the old shares.
A U.S. holder who receives cash in lieu of a fractional share of our common stock pursuant to the proposed reverse stock split should recognize capital gain or loss in an amount equal to the difference between the amount of cash received and the portion of the U.S. holder’s tax basis in the old shares that is allocated to such fractional share of our common stock. Such capital gain or loss will be long-term capital gain or loss if the U.S. holder has held the old shares for more than one year as of the effective date of the proposed reverse stock split. The deductibility of capital losses is subject to limitations.
Tax Consequences to Non-U.S. Holders
For purposes of this discussion, a “non-U.S. holder” is a beneficial owner of our common stock that is neither a U.S. holder nor a partnership (or an entity treated as a partnership for U.S. federal income tax purposes). Generally, a non-U.S. holder will not recognize any gain or loss upon the proposed reverse stock split. In particular, any gain or loss realized with respect to cash received in lieu of a fractional share generally will not be subject to U.S. federal income or withholding tax unless (a) such gain or loss is effectively connected with the non-U.S. holder’s conduct of a trade or business in the United States (and, if required by an applicable income tax treaty, is attributable to a U.S. permanent establishment maintained by the non-U.S. holder), (b) the non-U.S. holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the proposed reverse stock split and certain other conditions are met, or (c) our common stock constitutes a U.S. real property interest by reason of our status as U.S. real property holding corporation for U.S. federal income tax purposes.
Gain described in clause (a) above generally will be subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a U.S. holder. A non-U.S. holder that is a foreign corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items. A non-U.S. holder described in clause (b) above will be subject to U.S. federal income tax at a rate of 30% (or, if applicable, a lower treaty rate) on the gain realized with respect to cash received in lieu of a fractional share, which may be offset by certain U.S. source capital losses, even though the non-U.S. holder is not considered a resident of the United States. With respect to clause (c) above, we believe we are not currently and do not anticipate becoming a U.S. real property holding corporation. If we are or have been a U.S. real property holding corporation, any gain realized with respect to cash received in lieu of a fractional share may be treated as effectively connected with the conduct a trade or business in the United States subject to U.S. federal income tax and the cash proceeds may also be subject to a 10% withholding tax.
Information Reporting and Backup Withholding
Payments of cash made in lieu of a fractional share of our common stock may, under certain circumstances, be subject to information reporting and “backup withholding.” To avoid backup withholding, each holder of our shares of common stock that does not otherwise establish an exemption should furnish its taxpayer identification number and comply with the applicable certification procedures. Backup withholding is not an additional tax and amounts withheld will be allowed as a credit against the holder’s U.S. federal income tax liability and may entitle such holder to a refund, provided the required information is timely furnished to the IRS.
Vote Required for Approval
Approval of the Reverse Stock Split Proposal requires the affirmative vote of the holders of a majority of the outstanding shares of our common stock.
OUR BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE APPROVAL OF THE SERIES OF ALTERNATE AMENDMENTS TO OUR AMENDED AND RESTATED CERTIFICATE OF INCORPORATION TO EFFECT A REVERSE STOCK SPLIT AT THE BOARD’S DISCRETION AS DESCRIBED ABOVE IN THIS PROPOSAL 1.
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THE ADJOURNMENT PROPOSAL
The Company is asking its stockholders to approve an adjournment of the special meeting to a later date or dates, if necessary, to solicit additional proxies if there are not sufficient votes in favor of the foregoing proposal.
Vote Required; Recommendation of the Board of Directors
The approval of the Adjournment Proposal requires the affirmative vote of a majority of the shares present in person, by remote communication, if applicable, or represented by proxy at the special meeting.
OUR BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ADJOURNMENT PROPOSAL AS DESCRIBED ABOVE IN THIS PROPOSAL 2.
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Our Bylaws provide that only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to a notice of meeting. Accordingly, no business other than the proposals set forth herein shall be conducted at the special meeting.
Submission of Future Stockholder ProposalsTo be considered for inclusion in the 2023 Annual Meeting proxy materials, your proposal must be submitted in writing by December 30, 2022, to our Corporate Secretary at Unity Biotechnology, Inc., 285 East Grand Avenue, South San Francisco, California 94080; provided that if the date of the 2023 Annual Meeting is more than 30 days from June 24, 2023, the deadline is a reasonable time before we begin to print and send our proxy materials for the 2023 Annual Meeting. Pursuant to the Bylaws, in order for a stockholder to present a proposal for the 2023 Annual Meeting, other than proposals to be included in the proxy statement as described above, or to nominate a director, you must do so between February 24, 2023 and March 26, 2023; provided that if the date of the 2023 Annual Meeting is more than 30 days before or more than 60 days after June 24, 2023, you must give notice not later than the 90th day prior to the 2023 Annual Meeting date or, if later, the 10th day following the day on which public disclosure of the 2023 Annual Meeting date is first made. You are also advised to review our Bylaws, which contain additional requirements about advance notice of stockholder proposals and director nominations.
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FORM OF CERTIFICATE OF AMENDMENT OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
UNITY BIOTECHNOLOGY, INC.
Unity Biotechnology, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST: The name of the Corporation is Unity Biotechnology, Inc.
SECOND: The date on which the Certificate of Incorporation of the Corporation was originally filed with the Secretary of State of the State of Delaware is March 30, 2009 under the name Forge, Inc. The Corporation filed with the Secretary of State of the State of Delaware an Amended Certificate of Incorporation on June 25, 2013 under the name Cenexys, Inc., which was amended and restated on June 28, 2013, and a Certificate of Amendment on January 28, 2015 under the name Unity Biotechnology, Inc., and further amended on June 23, 2015, February 12, 2016, October 14, 2016, February 1, 2017, March 15, 2018, and April 20, 2018. The Corporation filed with the Secretary of State of the State of Delaware an Amended and Restated Certificate of Incorporation on May 4, 2018.
THIRD: That the Board of Directors of the Corporation adopted resolutions setting forth a proposed amendment of the Corporation’s Amended and Restated Certificate of Incorporation, declaring said amendment to be advisable and in the best interests of the Corporation and its stockholders and authorizing the appropriate officers of the Corporation to solicit the consent of the stockholders therefor, which resolution setting forth the proposed amendment is as follows:
RESOLVED, that Article IV (Capital Stock) of the Amended and Restated Certificate of Incorporation of the Corporation be amended to insert following Section 2 the following text:
Section 3. The Board of Directors is further authorized to increase (but not above the total number of authorized shares of the class) or decrease (but not below the number of shares of any such series then outstanding) the number of shares of any series, the number of which was fixed by it, subsequent to the issuance of shares of such series then outstanding, subject to the powers, preferences and rights, and the qualifications, limitations and restrictions thereof stated in this Amended and Restated Certificate of Incorporation or the resolution of the Board of Directors originally fixing the number of shares of such series. If the number of shares of any series is so decreased, then the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series.
Effective as of 5:00 p.m., Eastern time, on the date this Certificate of Amendment to the Amended and Restated Certificate of Incorporation is filed with the Secretary of State of the State of Delaware, each [six (6) to twelve (12)]* shares of the Corporation’s Common Stock, par value $0.0001 per share, issued and outstanding shall, automatically and without any action on the part of the respective holders thereof, be combined and converted into one (1) share of Common Stock, par value $0.0001 per share, of the Corporation. No fractional shares shall be issued and, in lieu thereof, any holder of less than one (1) share of Common Stock shall be entitled to receive cash for such holder’s fractional share based upon the closing sales price of the Corporation’s Common Stock as reported on the Nasdaq Global Select Market, as of the date this Certificate of Amendment is filed with the Secretary of State of the State of Delaware.”
FOURTH: This Certificate of Amendment of the Amended and Restated Certificate of Incorporation has been duly adopted by the stockholders of the Corporation in accordance with the provisions of Section 242 of the Delaware General Corporation Law.
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IN WITNESS WHEREOF, this Corporation has caused this Certificate of Amendment of the Amended and Restated Certificate of Incorporation to be signed by its President and Chief Executive Officer this day of , 202 .
| | | | | | | | | | | Anirvan Ghosh
Chief Executive Officer
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*
| These amendments approve the combination of any whole number of shares of Common Stock between and including six (6) and twelve (12) into one (1) share of Common Stock. By these amendments, the stockholders would approve each of the six amendments proposed by the Board of Directors. The Certificate of Amendment filed with the Secretary of State of the State of Delaware will include only that amendment determined by the Board of Directors to be in the best interests of the Company and its stockholders. The other five proposed amendments will be abandoned pursuant to Section 242(c) of the Delaware General Corporation Law. The Board of Directors may also elect not to do any reverse split, in which case all seven proposed amendments will be abandoned. In accordance with the resolutions to be adopted by the stockholders, the Board of Directors will not implement any amendment providing for a different split ratio.
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