UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
electroCore, Inc.
(Exact name of registrant as specified in its
charter)
Delaware |
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20-3454976 |
(State or other jurisdiction
of incorporation or organization) |
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(IRS Employer
Identification No.) |
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200 Forge Way, Suite 205
Rockaway, NJ |
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07866 |
(Address of principal executive offices) |
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(Zip Code) |
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Securities to be registered pursuant to Section
12(b) of the Act:
Title of each class
to be so registered |
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Name of each exchange on which
each class is to be registered |
Not Applicable |
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Not Applicable |
If this form relates to the registration of a
class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c) or (e), check
the following box. ☐
If this form relates to the registration of a
class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d) or (e), check
the following box. ☒
If this form relates to the registration of a
class of securities concurrently with a Regulation A offering, check the following box. ☐
Securities Act registration statement or Regulation
A offering statement file number to which this form relates: N/A (if applicable)
Securities to be registered pursuant to Section
12(g) of the Act:
Series A Preferred Stock,
par value $0.001 per share
(Title of class)
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 1. Description of Registrant’s Securities To Be Registered.
On December 2, 2022, the board of directors (the
“Board”) of electroCore, Inc. (the “Company”) declared a dividend of one one-thousandth
of a share of Series A Preferred Stock, par value $0.001 per share (“Series A Preferred Stock”), for each outstanding
share of the Company’s common stock, par value $0.001 per share (“Common Stock”), to stockholders of record
at 5:00 p.m. Eastern Time on December 19, 2022 (the “Record Date”).
General; Transferability. Shares
of Series A Preferred Stock will be uncertificated and represented in book-entry form. No shares of Series A Preferred Stock may be transferred
by the holder thereof except in connection with a transfer by such holder of any shares of Common Stock held by such holder, in which
case a number of one one-thousandths (1/1,000ths) of a share of Series A Preferred Stock equal to the number of shares of Common Stock
to be transferred by such holder will be automatically transferred to the transferee of such shares of Common Stock.
Voting Rights. Each share
of Series A Preferred Stock will entitle the holder thereof to 1,000,000 votes per share (and, for the avoidance of doubt, each fraction
of a share of Series A Preferred Stock will have a ratable number of votes). Thus, each one-thousandth of a share of Series A Preferred
Stock would entitle the holder thereof to 1,000 votes. The outstanding shares of Series A Preferred Stock will vote together with the
outstanding shares of Common Stock as a single class exclusively with respect to any proposal to adopt an amendment to the Company’s
Certificate of Incorporation, as amended (the “Certificate of Incorporation”), to reclassify the outstanding
shares of Common Stock into a smaller number of shares of Common Stock at a ratio specified in or determined in accordance with the terms
of such amendment (the “Reverse Stock Split”). The Series A Preferred Stock will not be entitled to vote on
any other matter, except to the extent required under the Delaware General Corporation Law.
Unless otherwise provided on any applicable proxy
or ballot with respect to the voting on the Reverse Stock Split, the vote of each share of Series A Preferred Stock (or fraction thereof)
entitled to vote on the Reverse Stock Split or any other matter brought before any meeting of stockholders held to vote on the Reverse
Stock Split will be cast in the same manner as the vote, if any, of the share of Common Stock (or fraction thereof) in respect of which
such share of Series A Preferred Stock (or fraction thereof) was issued as a dividend is cast on the Reverse Stock Split or such other
matter, as applicable, and the proxy or ballot with respect to shares of Common Stock held by any holder on whose behalf such proxy or
ballot is submitted will be deemed to include all shares of Series A Preferred Stock (or fraction thereof) held by such holder. Holders
of Series A Preferred Stock will not receive a separate ballot or proxy to cast votes with respect to the Series A Preferred Stock on
the Reverse Stock Split or any other matter brought before any meeting of stockholders held to vote on the Reverse Stock Split.
Dividend Rights. The holders of
Series A Preferred Stock, as such, will not be entitled to receive dividends of any kind.
Liquidation Preference. The Series
A Preferred Stock will rank senior to the Common Stock as to any distribution of assets upon a liquidation, dissolution or winding up
of the Company, whether voluntarily or involuntarily (a “Dissolution”). Upon any Dissolution, each holder of
outstanding shares of Series A Preferred Stock will be entitled to be paid out of the assets of the Company available for distribution
to stockholders, prior and in preference to any distribution to the holders of Common Stock, an amount in cash equal to $0.001 per outstanding
share of Series A Preferred Stock.
Redemption. All shares of Series
A Preferred Stock that are not present in person or by proxy at any meeting of stockholders held to vote on the Reverse Stock Split as
of immediately prior to the opening of the polls at such meeting (the “Initial Redemption Time”) will automatically
be redeemed in whole, but not in part, by the Company at the Initial Redemption Time without further action on the part of the Company
or the holder of shares of Series A Preferred Stock (the “Initial Redemption”). Any outstanding shares of Series
A Preferred Stock that have not been redeemed pursuant to an Initial Redemption will be redeemed in whole, but not in part, (i) if such
redemption is ordered by the Board in its sole discretion, automatically and effective on such time and date specified by the Board in
its sole discretion or (ii) automatically upon the approval by the Company’s stockholders of the Reverse Stock Split at any meeting
of the stockholders held for the purpose of voting on such proposal.
Each share of Series A Preferred Stock redeemed
in any redemption described above will be redeemed in consideration for the right to receive an amount equal to $0.01 in cash for each
ten (10) whole shares of Series A Preferred Stock that are “beneficially owned” by the “beneficial owner” (as
such terms are defined in the certificate of designation with respect to the Series A Preferred Stock (the “Certificate of
Designation”) thereof as of the applicable redemption time and redeemed pursuant to such redemption, payable upon receipt
by the Company of a written request submitted by the applicable holder to the corporate secretary of the Company (each a “Redemption
Payment Request”) following the applicable redemption time. Such Redemption Payment Request shall (i) be in a form reasonably acceptable
to the Company (ii) set forth in reasonable detail the number of shares of Series A Preferred Stock beneficially owned by the holder at
the applicable redemption time and include evidence reasonably satisfactory to the Company regarding the same, and (iii) set forth a calculation
specifying the amount in cash owed to such Holder by the Company with respect to the shares of Series A Preferred Stock that were redeemed
at the applicable redemption time. However, the redemption consideration in respect of the shares of Series A Preferred Stock (or fractions
thereof) redeemed in any redemption described above: (i) will entitle the former beneficial owners of less than ten (10) whole shares
of Series A Preferred Stock redeemed in any redemption to no cash payment in respect thereof and (y) will, in the case of a former beneficial
owner of a number of shares of Series A Preferred Stock (or fractions thereof) redeemed pursuant to any redemption that is not equal to
a whole number that is a multiple of ten (10), entitle such beneficial owner to the same cash payment, if any, in respect of such redemption
as would have been payable in such redemption to such beneficial owner if the number of shares (or fractions thereof) beneficially owned
by such beneficial owner and redeemed pursuant to such redemption were rounded down to the nearest whole number that is a multiple of
ten (10) (such, that for example, the former beneficial owner of fifteen (15) shares of Series A Preferred Stock redeemed pursuant to
any redemption will be entitled to receive the same cash payment in respect of such redemption as would have been payable to the former
beneficial owner of 10 shares of Series A Preferred Stock redeemed pursuant to such redemption).
Miscellaneous. The distribution
of the Preferred Stock is not expected to be taxable to stockholders or to the Company. However, stockholders may, depending upon the
circumstances, recognize taxable income in the event of the redemption of the Preferred Stock as described above. The Series A Preferred
Stock is not convertible into, or exchangeable for, shares of any other class or series of stock or other securities of the Company. The
Series A Preferred Stock has no stated maturity and is not subject to any sinking fund. The Series A Preferred Stock is not subject to
any restriction on the redemption or repurchase of shares by the Company while there is any arrearage in the payment of dividends or sinking
fund installments.
The foregoing description of the Series A Preferred
Stock does not purport to be complete and is qualified in its entirety by reference to the Certificate of Designation, which is filed
as Exhibit 3.1 to this Current Report and is incorporated herein by reference. The Certificate of Designation was filed with the Delaware Secretary of State and became effective on December 6, 2022.
Item 2. Exhibits.
SIGNATURES
Pursuant to the requirements of Section 12 of
the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized.
Date: December 7, 2022 |
ELECTROCORE, INC. |
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By: |
/s/ Brian M. Posner |
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Name: |
Brian M. Posner |
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Title: |
Chief Financial Officer |
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