UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
☒ |
Preliminary Proxy Statement |
☐ |
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
☐ |
Definitive Proxy Statement |
☐ |
Definitive Additional Materials |
☐ |
Soliciting Material Pursuant to §240.14a-12 |
ELECTROCORE,
INC.
(Name of Registrant as Specified in Its Charter)
(Name of Person(s) Filing Proxy Statement,
if Other Than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
☒ |
No fee required |
☐ |
Fee paid previously with preliminary materials |
☐ |
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and |
In accordance with Rule 14a-6(d) under Regulation
14A, please be advised that electroCore, Inc. intends to make available copies of this Proxy Statement to security holders on or about
December 22, 2022.
ELECTROCORE, INC.
200 Forge Way, Suite 205
Rockaway, NJ 07866
(973) 290-0097
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To Be Held on February 13, 2023
To the Stockholders of electroCore, Inc.:
Notice is hereby given that a special meeting
of stockholders (the “Special Meeting”) of electroCore, Inc., will be held virtually via the Internet at www.virtualshareholdermeeting.com/ECOR2023SM
on February 13, 2023 at 9:00 a.m., Eastern Time. At the Special Meeting, stockholders will consider and vote on a proposal to authorize
the Board of Directors (the “Board”), in its discretion but prior to the one-year anniversary of the date on which
the proposal is approved by the Company’s stockholders at the Special Meeting, to amend our restated certificate of incorporation
to effect a reverse stock split of all of the outstanding shares of our Common Stock, par value $0.001 per share (“Common Stock”),
at a ratio in the range of 1-for-5 to 1-for-50, with such ratio to be determined by the Board (the “Reverse Stock Split Proposal”
or “Proposal 1”).
The Reverse Stock Split Proposal was approved
by the Board, and in order to be approved by the stockholders requires the affirmative vote of a majority of the combined voting power
of the issued and outstanding shares of our Common Stock and Series A Preferred Stock, par value $0.001 per share (“Series A
Preferred Stock”), voting together as a single class, present in person (which would include voting online at the virtual Special
Meeting) or represented by proxy at the Special Meeting, and entitled to vote at the Special Meeting on the Reverse Stock Split Proposal.
Stockholders are referred to the proxy statement
for more detailed information with respect to the matters to be considered at the Special Meeting. After careful consideration, the
Board recommends a vote “FOR” the Reverse Stock Split Proposal.
As noted above, our Special Meeting will be a
“virtual meeting” of stockholders, which will be conducted exclusively via the Internet as a virtual web conference. There
will not be a physical meeting location, and stockholders will not be able to attend the Special Meeting in person. This means you can
attend the Special Meeting online and can vote your shares electronically during the Special Meeting online by accessing www.virtualshareholdermeeting.com/ECOR2023SM
shortly prior to the scheduled start of the meeting and entering the 16-digit control number found on the proxy card, voting instruction
form or notice of availability of proxy materials. We believe that hosting a “virtual meeting” can enable greater stockholder
attendance and participation from any location around the world.
The Board has fixed the close of business on December
19, 2022 as the record date for determining the stockholders entitled to notice of, and to vote at, the Special Meeting or any adjournments
thereof. Only the stockholders of record of our Common Stock and our Series A Preferred Stock are entitled to receive notice of, and to
vote at, the Special Meeting or any adjournments thereof. As a result of the dividend of the shares of Series A Preferred Stock distributed
on December 19, 2022, each holder of shares of our Common Stock as of the dividend record date also holds a number of one one-thousandths
of a share of our Series A Preferred Stock equal to the whole number of shares of Common Stock held by such holder. Because any one one-thousandths
of a share of Series A Preferred Stock that are not present in person or by proxy at the Special Meeting as of immediately prior to the
opening of the polls at the Special Meeting will be automatically redeemed, if you fail to submit a proxy to vote your shares or attend
the Special Meeting in order to do so, your shares of Series A Preferred Stock will be redeemed immediately prior to the opening of the
polls at the Special Meeting and will not be entitled to vote at the Special Meeting.
Accordingly, we urge you to review the accompanying
material carefully and to promptly return the enclosed proxy card or voting instruction. On the following pages, we provide answers to
frequently asked questions about the Special Meeting.
A complete list of registered stockholders entitled
to vote at the Special Meeting will be available for inspection by stockholders at the principal executive offices of the Company during
regular business hours for the 10 calendar days prior to and during the Special Meeting, and online during the Special Meeting.
We are using the “Notice and Access”
method of providing proxy materials to you via the internet. We believe that this process should provide you with a convenient and quick
way to access your proxy materials and vote your shares, while allowing us to conserve natural resources and reduce the costs of printing
and distributing the proxy materials. On or about January 4, 2023, we are mailing to our stockholders a Notice of Internet Availability
of Proxy Materials (the “Notice”) containing instructions on how to access our proxy statement and vote electronically
via the internet or by telephone. The Notice also contains instructions on how to receive a paper copy of your proxy materials.
YOUR VOTE AND PARTICIPATION IN THE COMPANY’S
AFFAIRS ARE IMPORTANT.
We encourage all stockholders to attend the virtual
Special Meeting. However, whether or not you plan to attend the virtual Special Meeting, we encourage you to read the proxy statement
and submit your proxy or voting instructions as soon as possible. Please review the instructions of each of your voting options described
in the proxy statement.
If your shares are registered in your name, even
if you plan to attend the Special Meeting online, we request that you vote by telephone, over the Internet, or complete, sign and mail
your proxy card to ensure that your shares will be represented at the Special Meeting.
If your shares are held in the name of a broker,
trust, bank or other nominee, and you receive notice of the Special Meeting through your broker or through another intermediary, please
vote or complete and return the materials in accordance with the instructions provided to you by such broker or other intermediary or
contact your broker directly in order to obtain a proxy issued to you by your nominee holder to attend the Special Meeting and vote online.
Failure to do so may result in your shares not being eligible to be voted by proxy at the Special Meeting.
Thank you for your ongoing support and continued
interest in electroCore.
By Order of the Board of Directors,
Peter Cuneo
Chairman of the Board of Directors
Rockaway, New Jersey
December [●], 2022
Important Notice Regarding the Availability
of Proxy Materials for the Special Meeting of Stockholders to be Held on February 13, 2023. The Notice of Special Meeting and proxy statement
are also available at www.proxyvote.com.
TABLE OF CONTENTS
Page
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING |
| 2 | |
PROPOSAL 1: THE REVERSE STOCK SPLIT PROPOSAL |
| 11 | |
Reasons for the Reverse Stock Split Proposal |
| 11 | |
Potential Effects of the Amendment |
| 12 | |
Principal Reasons for the Reverse Stock Split |
| 12 | |
Certain Risks Associated with a Reverse Stock Split |
| 13 | |
Impact of a Reverse Stock Split If Implemented |
| 13 | |
Effects of the Reverse Stock Split |
| 15 | |
Effectiveness of the Reverse Stock Split |
| 15 | |
Effect on Par Value; Reduction in Stated Capital |
| 16 | |
Book-Entry Shares |
| 16 | |
No Appraisal Rights |
| 16 | |
Fractional Shares |
| 16 | |
Material U.S. Federal Income Tax Considerations Related to the Reverse Stock Split |
| 16 | |
Required Vote |
| 18 | |
Recommendation |
| 18 | |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT |
| 19 | |
OTHER MATTERS |
| 21 | |
NEXT YEAR’S ANNUAL MEETING |
| 21 | |
Stockholder Proposals for Inclusion in the Proxy Materials for the 2023 Annual Meeting of Stockholders | 21 | |
Stockholder Proposals for Consideration at the 2023 Annual Meeting of Stockholders, but not for Inclusion in the Proxy Materials | 21 | |
Director Nominations by a Stockholder without Soliciting Proxies for the 2023 Annual Meeting of Stockholders | 21 | |
Director Nominations by a Stockholder Intending to Solicit Proxies for the 2023 Annual Meeting of Stockholders |
| 21 | |
Householding of Proxy Materials |
| 22 | |
WHERE YOU CAN FIND ADDITIONAL INFORMATION |
| 22 | |
Annex A CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION |
| | |
OF ELECTROCORE, INC. | |
| 23 | |
ELECTROCORE, INC.
200 Forge Way, Suite 205
Rockaway, NJ 07866
(973) 290-0097
PROXY STATEMENT
SPECIAL MEETING OF STOCKHOLDERS
To Be Held on February 13, 2023
INFORMATION CONCERNING SOLICITATION AND VOTING
This proxy statement and the accompanying
proxy card are being furnished in connection with the solicitation of proxies by the Board of Directors of electroCore, Inc. (the
“Board”) for use at the special meeting of stockholders (the “Special Meeting”) to be held on
February 13, 2023 at 9:00 a.m., Eastern Time, and at any adjournment thereof. The Special Meeting will be a virtual meeting held via
the Internet atwww.virtualshareholdermeeting.com/ECOR2023SM. There will not be a physical meeting location, and stockholders will
not be able to attend the Special Meeting in person other than via the Internet. As always, we encourage you to vote your shares prior to the Special Meeting
regardless of whether you intend to attend.
Except where the context otherwise requires, references
to “electroCore,” “the Company,” “we,” “us,” “our” and similar terms refer
to electroCore, Inc. In addition, unless the context otherwise requires, references to “stockholders” are to the holders of
our common stock, par value $0.001 per share (“Common Stock”) and our Series A Preferred Stock, par value $0.001 per
share (“Series A Preferred Stock”).
This proxy statement summarizes information about
the proposal to be considered at the Special Meeting and other information you may find useful in determining how to vote. The proxy card
is a means by which you actually authorize the proxies to vote your shares in accordance with your instructions. Pursuant to the “notice
and access” rules adopted by the Securities Exchange Commission (the “SEC”), we have elected to provide stockholders
access to our proxy materials over the internet. Accordingly, we sent the notice to all of our stockholders as of the record date. The
notice includes instructions on how to access our proxy materials over the internet and how to request a printed copy of these materials.
In addition, by following the instructions in the notice, stockholders may request to receive proxy materials in printed form by mail
or electronically by email on an ongoing basis.
***
Important Notice Regarding the Availability
of Proxy Materials for the Special Meeting of Stockholders to be Held on February 13, 2023: the Notice of Special Meeting and proxy statement
are also available at www.proxyvote.com.
QUESTIONS AND ANSWERS ABOUT
THE SPECIAL MEETING
A proxy is
a person you appoint to vote on your behalf. By using the methods discussed below, you will be appointing Daniel Goldberger, Chief Executive
Officer and member of the Board of Directors, and Brian Posner, Chief Financial Officer, as your proxy. The proxy agent will vote on
your behalf, and will have the authority to appoint a substitute to act as proxy. If you are unable to attend the Special Meeting, please
vote by proxy so that your shares may be voted.
| Q. | What is a proxy statement? |
A proxy statement is a document that
regulations of the SEC require that we give to you when we ask you to sign a proxy card to vote your stock at the Special Meeting.
| Q. | Why did I receive these proxy materials? |
Our Board has made these materials available
to you in connection with the solicitation of proxies for use at the Special Meeting to be held virtually on February 13, 2023 at 9:00
a.m., Eastern Time. As a holder of Common Stock or Series A Preferred Stock as of the record date of December 19, 2022, you are invited
to attend the Special Meeting and are requested to vote on the business described in this proxy statement. This proxy statement includes
information that we are required to provide to you under SEC rules and which is designed to assist you in voting your shares.
| Q. | What is the purpose of the Special Meeting? |
At the Special Meeting, stockholders
will be asked to consider and vote on the following matter:
To approve the proposal to authorize
the Board, in its discretion but prior to the one-year anniversary of the date on which the reverse stock split is approved by the Company’s
stockholders at the Special Meeting, to amend our restated certificate of incorporation to effect a reverse stock split of all of the
outstanding shares of our Common Stock, at a ratio in the range of 1-for-5 to 1-for-50, with such ratio to be determined by the Board
(the “Reverse Stock Split Proposal” or “Proposal 1”).
Other than Proposal 1, no other proposals
are expected to be presented for a vote at the Special Meeting.
| Q. | Why is the Company seeking authority to effect a reverse
stock split? |
Our Board has adopted a resolution declaring
advisable, and recommending to our stockholders for their approval, an amendment to our restated certificate of incorporation (the “Reverse
Stock Split Amendment”) authorizing a reverse stock split of the outstanding shares of our Common Stock at a ratio in the range
of 1-for-5 to 1-for-50, with such ratio to be determined by the Board (the “Reverse Stock Split”), and granting the
Board the discretion to file a certificate of amendment to our restated certificate of incorporation with the Secretary of State of the
State of Delaware effecting the Reverse Stock Split prior to the one-year anniversary of the date on which the Reverse Stock Split is
approved by the Company’s stockholders at the Special Meeting or to abandon the Reverse Stock Split altogether. The primary goal
of implementing the Reverse Stock Split would be to increase the per share market price of our Common Stock, including potentially to
meet the minimum per share bid price requirement for continued listing on the Nasdaq Capital Market (“Nasdaq”). If
our stockholders fail to approve the proposal relating to the Reverse Stock Split, our Board will not have the authority to effect the
Reverse Stock Split, which could, among other risks, potentially expose us to delisting from Nasdaq.
The form of the proposed Reverse Stock
Split Amendment is attached to this proxy statement as Annex A. The Reverse Stock Split Amendment will implement the Reverse Stock
Split by reducing the number of outstanding shares of Common Stock as compared to the number of outstanding shares immediately prior to
the effectiveness of the Reverse Stock Split, but will not increase the par value of Common Stock, and will not change the number of authorized
shares of our capital stock. Stockholders are urged to carefully read Annex A. If implemented, the number of shares of our Common
Stock owned by each of our stockholders will be reduced by the same proportion as the reduction in the total number of shares of our Common
Stock outstanding, so that the percentage of our outstanding Common Stock owned by each of our stockholders will remain approximately
the same, except to the extent that the Reverse Stock Split could result in some or all of our stockholders receiving cash in lieu of
any resulting fractional shares.
| Q. | Why is the Special Meeting a virtual, online meeting? |
The Special Meeting will be a virtual
meeting of stockholders where stockholders will participate by accessing a website using the Internet. There will not be a physical meeting
location. We believe that hosting a virtual meeting can facilitate stockholder attendance and participation at the Special Meeting by
enabling stockholders to participate remotely from any location around the world. Our virtual meeting will be governed by our Rules of
Conduct and Procedures which will be posted at www.virtualshareholdermeeting.com in advance of the meeting and will available during the
online meeting at www.virtualshareholdermeeting.com/ECOR2023SM.
| Q. | How do I virtually attend the Special Meeting? |
We will host the Special Meeting live
online. The webcast of the Special Meeting is expected to start at 9:00 a.m., Eastern Time, on February 13, 2023. Online access to the
webcast will open 15 minutes prior to the start of the Special Meeting to allow time for you to log-in and test your device’s audio
system. To be admitted to the virtual Special Meeting, you will need to log-in at www.virtualshareholdermeeting.com/ECOR2023SM using the
16-digit control number on the proxy card, voting instruction form or notice of availability of proxy materials.
Beginning 15 minutes prior to, and during,
the Special Meeting, we will have technicians standing by and ready to assist you with any technical difficulties you may have accessing
or hearing the virtual meeting. If you encounter any difficulties accessing the virtual meeting or during the virtual meeting, please
call the technical support team at the phone number available on www.virtualshareholdermeeting.com/ECOR2023SM.
| Q. | Who is entitled to vote at the Special Meeting, and how many
votes do they have? |
Stockholders of record, including holders
of our Common Stock and holders of our Series A Preferred Stock, at the close of business on December 19, 2022 (the “Record Date”)
may vote at the Special Meeting. Notwithstanding the foregoing, holders of outstanding shares of Series A Preferred Stock will only be
entitled to vote such shares on the Reverse Stock Split Proposal to the extent that such shares have not be automatically redeemed in
the Initial Redemption (defined below). There were [71,173,237] shares of Common Stock, [71,173.237] shares of Series A Preferred Stock,
and no shares of any other series of preferred stock, respectively, outstanding on the Record Date. A complete list of registered stockholders
entitled to vote at the Special Meeting will be available for inspection at the principal executive offices of the Company during regular
business hours for the 10 calendar days prior to the Special Meeting. The list will also be available online during the Special Meeting.
Pursuant to the rights of our stockholders
contained in our charter, each share of our Common Stock is entitled to one vote on all matters listed in this proxy statement. As previously
announced on December 7, 2022, the Board declared a dividend of one one-thousandth (1/1,000th) of a share of Series A Preferred Stock
for each outstanding share of Common Stock to stockholders of record of Common Stock as of 5:00 p.m. Eastern Time on December 19, 2022.
The holders of Series A Preferred Stock have 1,000,000 votes per whole share of Series A Preferred Stock (i.e., 1,000 votes per one one-thousandth
of a share of Series A Preferred Stock) and are entitled to vote with the Common Stock, together as a single class, on the Reverse Stock
Split Proposal, but are not otherwise entitled to vote on the other proposals, if any, to be presented at the Special Meeting. Notwithstanding
the foregoing, each share of Series A Preferred Stock redeemed pursuant to the Initial Redemption will have no voting power with respect
to the Reverse Stock Split or any other matter. Unless otherwise provided on any applicable proxy or ballot with respect to the voting
on the Reverse Stock Split, when a holder of Common Stock submits a vote on the Reverse Stock Split Proposal, the corresponding number
of shares of Series A Preferred Stock (or fraction thereof) held by such holder will be automatically cast in the same manner as the vote
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 the Special Meeting.
For example, if a stockholder holds 10 shares of Common Stock (entitled to one vote per share) and votes in favor of the Reverse Stock
Split Proposal, then 10,010 votes will be recorded in favor of the Reverse Stock Split Proposal, because the 10,000 votes associated with
the stockholder’s fraction of a share of Series A Preferred Stock will automatically be voted in favor of the Reverse Stock Split
Proposal alongside such stockholder’s 10 shares of Common Stock, unless otherwise provided on any applicable proxy for ballot with
respect to voting on such proposals.
All outstanding shares of Series A Preferred
Stock that are not present in person or by proxy at the Special Meeting as of immediately prior to the opening of the polls at the Special
Meeting will be automatically redeemed (the “Initial Redemption”). Any outstanding shares of Series A Preferred Stock
that have not been redeemed pursuant to the Initial Redemption will be redeemed in whole, but not in part, (i) if and when ordered by
our Board 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.
| Q. | What is the difference between a stockholder of record and
a “street name” holder? |
If your shares are registered directly
in your name with our transfer agent, Broadridge Financial Solutions, Inc., you are considered the stockholder of record with respect
to those shares. The notice of the Special Meeting has been sent directly to you by us.
If your shares are held in a stock brokerage
account or by a bank or other nominee, the nominee is considered the record holder of those shares. You are considered the beneficial
owner of these shares, and your shares are held in “street name.” A notice or proxy statement and voting instruction card
have been forwarded to you by your nominee. As the beneficial owner, you have the right to direct your nominee concerning how to vote
your shares by using the voting instructions they included in the mailing or by following their instructions for voting by telephone or
the Internet.
| Q. | What is a broker non-vote? |
Broker non-votes occur when shares are
held indirectly through a broker, bank or other intermediary on behalf of a beneficial owner (referred to as held in “street name”)
and the broker submits a proxy but does not vote for a matter because the broker has not received voting instructions from the beneficial
owner and (i) the broker does not have discretionary voting authority on the matter or (ii) the broker chooses not to vote on a matter
for which it has discretionary voting authority. Under the rules of the New York Stock Exchange (the “NYSE”) that govern
how brokers may vote shares for which they have not received voting instructions from the beneficial owner, brokers are permitted to exercise
discretionary voting authority only on “routine” matters when voting instructions have not been timely received from a beneficial
owner. Proposal 1 is considered a “routine matter.” Therefore, if you do not provide voting instructions to your broker regarding
Proposal 1, your broker will be permitted to exercise discretionary voting authority to vote your shares on Proposal 1.
| Q. | If I am a beneficial owner of shares, can my brokerage firm
vote my shares? |
If you are a beneficial owner and do
not vote via the Internet or telephone or by returning a signed voting instruction card to your broker, your shares may be voted only
with respect to so-called “routine” matters where your broker has discretionary voting authority over your shares. Under the
rules of the NYSE, Proposal 1 is considered a “routine” matter. Accordingly, brokers will have such discretionary authority
to vote on Proposal 1, and may vote “FOR,” “AGAINST,” or “ABSTAIN” with respect to Proposal 1.
We encourage you to provide instructions
to your brokerage firm via the Internet or telephone or by returning your signed voting instruction card. This ensures that your shares
will be voted at the Special Meeting with respect to the proposal described in this proxy statement.
If you are the “record holder”
of your shares, meaning that your shares are registered in your name in the records of our transfer agent, Broadridge Financial Solutions,
Inc., you may vote your shares during the Special Meeting or by proxy prior to the Special Meeting as follows:
|
1. |
Over the Internet prior to the Special Meeting:
To vote over the Internet prior to the Special Meeting, please go to the following website: www.virtualshareholdermeeting.com,
and follow the instructions at that site for submitting your proxy electronically. If you vote over the Internet prior to the Special
Meeting, you do not need to complete and mail your proxy card or vote your proxy by telephone. You must submit your Internet proxy before
11:59 p.m., Eastern Time, on February 12, 2023, the day before the Special Meeting, for your proxy to be valid and your vote to count.
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|
2. |
By Telephone prior to the Special Meeting:
To vote by telephone, please call 1-800-690-6903 in the United States, and follow the instructions provided on the proxy card.
If you vote by telephone, you do not need to complete and mail your proxy card or vote your proxy over the Internet. You must submit your
telephonic proxy before 11:59 p.m., Eastern Time, on February 12, 2023, the day before the Special Meeting, for your proxy to be valid
and your vote to count.
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|
3. |
By Mail prior to the Special Meeting: To
vote by mail, you must mark, sign and date the proxy card and then mail the proxy card in accordance with the instructions on the proxy
card. If you vote by mail, you do not need to vote your proxy over the Internet or by telephone. The proxy card must be received not later
than February 12, 2023, the day before the Special Meeting, for your proxy to be valid and your vote to count. If you return your proxy
card but do not specify how you want your shares voted on any particular matter, they will be voted in accordance with the recommendations
of our Board.
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4. |
Over the Internet during the Special Meeting:
If you attend the Special Meeting virtually, you may vote your outstanding shares online by following the instructions available at www.virtualshareholdermeeting.com/ECOR2023SM
during the Special Meeting. You will need your 16-digit control number included on the proxy card or notice of availability of proxy materials.
If you vote by proxy prior to the Special Meeting and also virtually attend the Special Meeting, there is no need to vote again at the
Special Meeting unless you wish to change your vote.
|
If your shares are held in “street
name,” meaning they are held for your account by an intermediary, such as a bank, broker or other nominee, then you are deemed
to be the beneficial owner of your shares and the broker that actually holds the shares for you is the record holder and is required to
vote the shares it holds on your behalf according to your instructions. The proxy materials, as well as voting and revocation instructions,
should have been forwarded to you by the bank, broker or other nominee that holds your shares. In order to vote your shares, you will
need to follow the instructions that your bank, broker or other nominee provides you. The voting deadlines and availability of telephone
and Internet voting for beneficial owners of shares held in “street name” will depend on the voting processes of the bank,
broker or other nominee that holds your shares. Therefore, we urge you to carefully review and follow the voting instruction card and
any other materials that you receive from that organization.
Even if you plan to attend the Special
Meeting online, we urge you to vote your shares by proxy in advance of the Special Meeting so that if you should become unable to attend
the Special Meeting your shares will be voted as directed by you.
| Q. | How will my proxy vote my shares? |
If you are a stockholder of record,
your proxy will vote according to your instructions. If you choose to vote by mail and complete and return the enclosed proxy card but
do not indicate your vote, your proxy will vote “FOR” Proposal 1.
We do not intend to bring any other
matter for a vote at the Special Meeting, and we do not know of anyone else who intends to do so. Your proxies are authorized to vote
on your behalf, however, using their best judgment, on any other business that properly comes before the Special Meeting.
If your shares are held in the name
of a bank, broker or other nominee, you will receive separate voting instructions from your bank, broker or other nominee describing how
to vote your shares. The availability of Internet voting will depend on the voting process of your bank, broker or other nominee. Please
check with your bank, broker or other nominee and follow the voting instructions your bank, broker or other nominee provides.
As described above, under the rules
of the NYSE, Proposal 1 is considered to be a “routine” matter. Accordingly, brokers will have such discretionary authority
to vote on Proposal 1 and may vote “FOR,” “AGAINST,” or “ABSTAIN” with respect to Proposal 1.
If your shares are registered directly in your
name, you may revoke your proxy and change your vote at any time before the vote is taken at the Special Meeting. To do so, you must do
one of the following:
| 1. | Vote over the Internet or by telephone as instructed above under
“Over the Internet Prior to the Special Meeting” or “By Telephone Prior to the Special Meeting.” Only
your latest Internet or telephone vote is counted. |
| 2. | Sign, date and return a new proxy card. Only your latest dated
and timely received proxy card will be counted. |
| 3. | Attend the Special Meeting virtually and vote online as instructed
above under “Over the Internet during the Special Meeting.” Your virtual attendance at the Special Meeting, without
voting online during the Special Meeting, will not revoke your proxy. |
| 4. | Give our Corporate Secretary written notice before the Special
Meeting that you want to revoke your proxy. |
If your shares are held in “street
name,” you may submit new voting instructions by contacting your bank, broker or other nominee. You may also vote online during
the Special Meeting, which will have the effect of revoking any previously submitted voting instructions if you follow the procedures
described under “How do I vote?” above.
| Q. | How are abstentions and broker non-votes treated for purposes
of the Special Meeting? |
Abstentions are included in the determination
of the number of shares present at the Special Meeting for determining a quorum at the meeting. An abstaining stockholder is considered
“entitled to vote” at the Special Meeting but accordingly, an abstention will have the effect of a vote against Proposal 1.
Broker non-votes will be included in the determination of the number of shares present at the Special Meeting for determining a quorum
at the meeting. Because your broker will have discretionary voting authority with respect to Proposal 1, a broker non-vote would only
arise in the event that your broker does not receive your voting instructions and chooses not to exercise its discretionary voting authority
with respect to such matter. Broker non-votes, to the extent applicable, will have the effect of a vote against Proposal 1 because brokers
will have discretionary voting authority with respect to Proposal 1 and a broker non-vote is not an “affirmative vote.”
If your shares are held in the name
of a bank, broker or other nominee, you should check with your bank, broker or other nominee and follow the voting instructions provided.
Attendance at the Special Meeting alone will not revoke your proxy.
All votes will be tabulated by the inspector
of election appointed for the Special Meeting.
| Q. | How many shares must be represented to have a quorum and
hold the Special Meeting? |
The holders of one third of the voting
power of the shares of the capital stock of the Company issued and outstanding and entitled to vote at the Special Meeting, present in
person (which would include voting online at the virtual Special Meeting), present by means of remote communication, or represented by
proxy, constitutes a quorum for the transaction of business at the Special Meeting. For purposes of determining whether a quorum exists,
we count as present any shares that are voted over the Internet, by telephone, by completing and submitting a proxy card by mail or that
are represented virtually at the meeting. Further, for purposes of establishing a quorum, we will count as present shares that a stockholder
holds even if the stockholder votes to abstain. In addition, we will count as present shares held in “street name” by banks,
brokers or other nominees who submit proxies indicating that they do not have authority to vote those shares. If a quorum is not present,
we expect to adjourn the Special Meeting until we obtain a quorum.
| Q. | What vote is required to approve Proposal 1 and how are votes
counted? |
Proposal 1 - The Reverse Stock Split
Proposal
In order to be approved, Proposal 1
must receive the affirmative vote of a majority of the combined voting power of the issued and outstanding shares of our Common Stock
and Series A Preferred Stock entitled to vote at the Special Meeting, voting together as a single class.
Please refer to the discussion above
under “Who is entitled to vote at the Special Meeting, and how many votes do they have?” for a description of the Series
A Preferred Stock that is entitled to be voted together with the Common Stock as a single class on the Reverse Stock Split Proposal. Shares
of Series A Preferred Stock that are not present in person or by proxy as of immediately prior to the opening of the polls at the Special
Meeting will be automatically redeemed in the Initial Redemption and, therefore, will not be outstanding or entitled to vote on the Reverse
Stock Split Proposal and will be excluded from the calculation as to whether Proposal 1 passes at the Special Meeting. Due to the voting
power of the shares of Series A Preferred Stock that are not redeemed pursuant to the Initial Redemption on the Reverse Stock Split Proposal,
the holders of Common Stock that submit a proxy to vote their shares at the Special Meeting or attend the Special Meeting will effectively
have enhanced voting power on Proposal 1 over holders of Common Stock that are not represented in person or by proxy at the Special Meeting.
This means that the Reverse Stock Split Proposal could be approved by the affirmative vote of the holders of less than a majority of the
outstanding shares of our Common Stock.
The principal terms of the Reverse Stock
Split Amendment have been approved by the Board and the Board urges you to do so, as well.
| Q. | What are the consequences if the Reverse Stock Split Proposal
is not approved by stockholders? |
If stockholders fail to approve the Reverse Stock Split Proposal our Board would not have the authority to effect the Reverse Stock Split
to, among other things, potentially facilitate the continued listing of our Common Stock on Nasdaq by increasing the per share trading
price of our Common Stock to help ensure a share price high enough to satisfy the $1.00 per share minimum bid price requirement of Nasdaq.
Any inability of our Board to effect the Reverse Stock Split potentially could expose us to delisting from Nasdaq, if we continue to be
listed on Nasdaq.
| Q. | Will the Company change its name as a result of the Reverse
Stock Split? |
No. The Company will retain the name
“electroCore, Inc.” and will remain incorporated under the laws of the State of Delaware.
| Q. | Will the Reverse Stock Split change the business of the Company? |
No. The Reverse Stock Split will not
change the current business of the Company.
| Q. | Will the Company have the same directors and executive officers
that the Company currently has following the Reverse Stock Split? |
Yes. The executive officers and members
of the Board will not change as a result of the Reverse Stock Split.
| Q. | Who is soliciting proxies, how are they being solicited,
and who pays the cost? |
Proxies are being solicited by the Board
on behalf of the Company. In addition, we have engaged Kingsdale Advisors (“Kingsdale”), the proxy solicitation firm
hired by the Company, at an approximate cost of $11,500, plus reimbursement expenses, to solicit proxies on behalf of our Board. Kingsdale
may solicit the return of proxies, either by mail, telephone, telecopy, e-mail or through personal contact. The fees of Kingsdale as well
as the reimbursement of expenses of Kingsdale will be borne by us. Our officers, directors, and employees may also solicit proxies personally
or in writing, by telephone, e-mail, or otherwise. These officers and employees will not receive additional compensation but will be reimbursed
for out-of-pocket expenses. Brokerage houses and other custodians, nominees, and fiduciaries, in connection with shares of the Common
Stock registered in their names, will be asked to forward solicitation material to the beneficial owners of shares of Common Stock. We
will reimburse brokerage houses and other custodians, nominees, and fiduciaries for their reasonable out-of-pocket expenses for forwarding
solicitation materials and collecting voting instructions.
| Q. | How does the Board recommend that I vote on the Proposal? |
Our Board recommends that
you vote FOR the approval of the Reverse Stock Split.
| Q. | Do I have any dissenters’ or appraisal rights or cumulative
voting rights with respect to any of the matters to be voted on at the Special Meeting? |
No. None of our stockholders have any
dissenters’ or appraisal rights or cumulative voting rights with respect to the matter to be voted on at the Special Meeting.
| Q. | Where can I find the voting results? |
The Company expects to publish the voting
results of the Special Meeting in a Current Report on Form 8-K, which it expects to file with the SEC within four business days following
the date of the Special Meeting.
| Q. | What are the costs of soliciting these proxies? |
We will bear the cost of soliciting
proxies. In addition to solicitation by mail, our directors, officers and employees may solicit proxies by telephone, e-mail, facsimile,
and in person without additional compensation. We may reimburse brokers or persons holding stock in their names, or in the names of their
nominees, for their expenses in sending proxies and proxy material to beneficial owners.
| Q. | How many shares of Common Stock and Preferred Stock are outstanding? |
As of December 19, 2022, there are [71,173,237]
shares of Common Stock and [71,173.237] shares of Series A Preferred Stock outstanding. There are no shares of any other series of preferred
stock currently outstanding.
MATTERS TO BE VOTED ON
PROPOSAL 1: THE REVERSE
STOCK SPLIT PROPOSAL
Reasons for the Reverse
Stock Split Proposal
The Board is recommending to the Company’s
stockholders for their approval an amendment that would authorize, but not obligate the Board, to amend the Company’s Certificate
of Incorporation to effect a reverse stock split of the outstanding and treasury shares of Common Stock at a ratio in the range of 1-for-5
to 1-for-50, which ratio would be subject to the Board’s discretion following stockholder approval. The Company believes that the
availability of a range of reverse split ratios will provide the Company with the flexibility to implement the Reverse Stock Split, if
effected at all, in a manner designed to maximize the anticipated benefits for the Company and its stockholders. The general description
of the reverse split amendment set forth below is a summary only and is qualified in its entirety by and subject to the full text of the
form of proposed amendment which is attached as Annex A hereto.
The Board’s primary objective in asking
for authority to effect a reverse split is to increase the per-share trading price of our Common Stock. If our Board does not implement
the Reverse Stock Split prior to the one-year anniversary of the date on which the Reverse Stock Split is approved by the Company’s
stockholders at the Special Meeting, the authority granted in this proposal to implement the Reverse Stock Split will terminate and the
Reverse Stock Split Amendment will be abandoned.
As background, on June 22, 2022, we received
approval (the “Approval”) from the Nasdaq Listing Qualifications Department of the Nasdaq Stock Market that our application
to transfer the listing of our Common Stock from the Nasdaq Global Select Market to the Nasdaq Capital Market had been approved. The
Common Stock was transferred to the Nasdaq Capital Market at the opening of business on June 23, 2022, where our Common Stock continues
to trade under the symbol “ECOR.” The transfer to the Nasdaq Capital Market followed a letter from Nasdaq Stock Market that
we received on December 20, 2021 indicating that we were not in compliance with Nasdaq Listing Rule 5450(a)(1) because the closing bid
price per share for our common stock had closed below $1.00 for the previous 30 consecutive business days (the “Minimum Bid
Price Requirement”). We were given until June 20, 2022, to regain compliance with the rule. As the price of Common Stock did
not return to compliance, we filed an application to transfer the listing of our common stock from the Nasdaq Global Select Market to
the Nasdaq Capital Market. As a result of the Approval, we were granted an additional 180-day grace period, or until December 19, 2022,
to regain compliance with the Minimum Bid Price Requirement. To regain compliance with the Minimum Bid Price Requirement and qualify
for continued listing on the Nasdaq Capital Market, the closing bid price per share of our common stock must be at least $1.00 for at
least 10 consecutive business days on or prior to December 19, 2022. The Nasdaq Staff retains discretion to extend this 10-business day
period to determine that the Company has demonstrated an ability to maintain long-term compliance. As a condition of the Approval imposed
by Nasdaq Listing Rule 5810(c)(3)(a)(i), we notified the Nasdaq Stock Market that we intend to effect a reverse stock split, if necessary,
to regain compliance with the Minimum Bid Price Requirement.
We sought stockholder approval of a proposal authorizing
a reverse stock split at our 2022 Annual Meeting of stockholders held on December 2, 2022. At that meeting, 40.67% of the total number
of shares outstanding at the record date were voted in favor of the proposal; however, 79.14% of the shares of Common Stock present in
person or by proxy at such meeting voted in favor of the reverse split stock proposal. In light of that level of voting support, we are
asking our stockholders to approve a reverse stock split at the Special Meeting scheduled to be heard on February 13, 2023.
Assuming the Company fails to regain compliance
with the Minimum Bid Price Requirement during the additional compliance period ending December 19, 2022, it is expected that the Nasdaq
Stock Market will notify the Company of its determination to delist the Company’s common stock, at which point the Company would
have an opportunity to appeal the delisting determination to a Nasdaq Listing Qualifications Panel (the “Panel”),
but there can be no assurance that (i) the Panel would grant the Company’s request for continued listing or (ii) the Company will
not be delisted from Nasdaq before the stockholders have the opportunity at the Special Meeting to approve the Reverse Stock Split.
The Board believes that the failure of stockholders
to approve the Reverse Stock Split Amendment could prevent the Company from complying with the Minimum Bid Price Requirement and could,
among other risks, inhibit our ability to conduct capital raising activities. If the Nasdaq Stock Market delists the Common Stock, then
the Common Stock would likely become traded on an over-the-counter market such as that maintained by OTC Markets Group Inc., which does
not have the substantial corporate governance or quantitative listing requirements for continued trading that the Nasdaq Stock Market
has. In that event, interest in Common Stock may decline and certain institutions may not have the ability to trade in the Common Stock,
all of which could have a material adverse effect on the liquidity or trading volume of the Common Stock. If the Common Stock becomes
significantly less liquid due to delisting from the Nasdaq Stock Market, the Company’s stockholders may not have the ability to
liquidate their investments in the Common Stock as and when desired, and the Company believes its ability to maintain and obtain analyst
coverage, attract investor interest, and have access to capital may become significantly diminished as a result.
Potential Effects of the
Amendment
If the Board decides to implement the Reverse
Stock Split Amendment, the Company would communicate to the public, additional details regarding the Reverse Stock Split Amendment (including
the final reverse split ratio, as determined by the Board). By voting in favor of the Reverse Stock Split Amendment, you are also expressly
authorizing the Board to determine not to proceed with, and to defer the timing of, or to abandon, the Reverse Stock Split Amendment,
in the Board’s sole discretion. In determining whether to implement the Reverse Stock Split Amendment following receipt of stockholder
approval of the Reverse Stock Split Amendment, and which reverse split ratio to implement, if any, the Board may consider, among other
things, various factors, such as:
| ● | the Company’s ability to maintain its listing on Nasdaq; |
| ● | the historical trading price and trading volume of the Common
Stock; |
| ● | the then-prevailing trading price and trading volume of the
Common Stock and the expected impact of the reverse stock split on the trading market for the Common Stock in the short and long term; |
| ● | which reverse split ratio would result in the greatest overall
reduction in the Company’s administrative costs; and |
| ● | prevailing general market and economic conditions. |
Principal Reasons for the
Reverse Stock Split
To increase the per share price of our Common
Stock, to potentially maintain the Company’s Nasdaq Listing, and to potentially improve the liquidity of the Common Stock and assist
in our capital-raising efforts. The primary objectives for effecting the Reverse Stock Split Amendment, should our Board of Directors
choose to effect one, would be to increase the per share price of our Common Stock, whether to potentially regain compliance with the
Nasdaq Minimum Bid Price or otherwise. Our Board of Directors believes that, should the appropriate circumstances arise, effecting the
Reverse Stock Split Amendment, could, among other things, help us to appeal to a broader range of investors, generate greater investor
interest in the Company, improve the perception of our Common Stock as an investment security and could assist in our capital-raising
efforts by making our Common Stock more attractive to a broader range of investors.
A reverse stock split could allow a broader range
of institutions to invest in the Common Stock (namely, funds that are prohibited from buying stocks whose price is below certain thresholds),
potentially increasing trading volume and liquidity of the Common Stock and potentially decreasing the volatility of the Common Stock
if institutions become long-term holders of the Common Stock. A reverse stock split could help increase analyst and broker interest in
the Common Stock as their policies can discourage them from following or recommending companies with low stock prices. Because of the
trading volatility often associated with low-priced stocks, 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. Some of those policies and practices may make the processing of trades in low-priced stocks economically unattractive
to brokers. Additionally, because brokers’ commissions on low-priced stocks generally represent a higher percentage of the stock
price than commissions on higher-priced stocks, a low average price per share of Common Stock can result in individual stockholders paying
transaction costs representing a higher percentage of their total share value than would be the case if the share price were higher. Some
investors, however, may view a reverse stock split negatively since it reduces the number of shares of Common Stock available in the public
market. If the Reverse Stock Split Amendment is approved and the Board believes that effecting the Reverse Stock Split is in the best
interests of the Company and its stockholders, the Board may effect the Reverse Stock Split, regardless of whether the Company’s
stock is at risk of delisting from Nasdaq, trades on the OTC Market, or otherwise for purposes of increasing the per share trading price,
enhancing the liquidity of the Common Stock, and to facilitate capital raising.
Certain Risks Associated
with a Reverse Stock Split
Reducing the number of outstanding shares of the
Common Stock through the Reverse Stock Split Amendment is intended, absent other factors, to increase the per share market price of the
Common Stock. Other factors, however, such as the Company’s financial results, market conditions, the market perception of the Company’s
business and other risks, including those set forth below and in the Company’s SEC filings and reports, including its Annual Report
on Form 10-K for the year ended December 31, 2021, as amended, may adversely affect the market price of the Common Stock. As a result,
there can be no assurance that the Reverse Stock Split, if completed, will result in the intended benefits described above, that the market
price of the Common Stock will increase following the Reverse Stock Split or that the market price of the Common Stock will not decrease
in the future.
The Reverse Stock Split May Not Result in a
Sustained Increase in the Price of the Common Stock. The effect of the Reverse Stock Split upon the market price of the Common Stock
cannot be predicted with any certainty and the Company cannot assure you that the Reverse Stock Split will result in a sustained increase
in the price of the Common Stock for any meaningful period of time, or at all. The Board believes that the Reverse Stock Split has the
potential to increase the market price of the Common Stock, and therefore may help to satisfy the Minimum Bid Price Requirement, if applicable.
However, the long- and short-term effect of the Reverse Stock Split upon the market price of the Common Stock cannot be predicted with
any certainty.
The Reverse Stock Split May Decrease the Liquidity
of the Common Stock. The Board believes that the Reverse Stock Split may result in an increase in the market price of the Common Stock,
which could lead to increased interest in the Common Stock and possibly promote greater liquidity for the Company’s stockholders.
However, the Reverse Stock Split will also reduce the total number of outstanding shares of Common Stock, which may lead to reduced trading
and a smaller number of market makers for the Common Stock. There also can be no assurance the Reverse Stock Split will enhance the Company’s
ability to engage in capital raising activities.
The Reverse Stock Split May Result in Some
Stockholders Owning “Odd Lots” That May Be More Difficult to Sell or Require Greater Transaction Costs per Share to Sell.
If the Reverse Stock Split is implemented, it will increase the number of stockholders who own “odd lots” of less than 100
shares of Common Stock. A purchase or sale of less than 100 shares of Common Stock (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 100 shares of Common Stock following the Reverse Stock Split may be required to pay higher transaction costs if they
sell their Common Stock.
The Reverse Stock Split May Lead to a Decrease
in the Overall Market Capitalization of the Company. The Reverse Stock Split may be viewed negatively by the market and, consequently,
could lead to a decrease in the overall market capitalization of the Company. If the per share market price of the Common Stock does not
increase in proportion to the reverse split ratio, then the value of the Company, as measured by the market capitalization of the Company,
will be reduced.
Impact of a Reverse Stock
Split If Implemented
The Reverse Stock Split would affect all holders
of Common Stock uniformly and would not affect any stockholder’s percentage ownership interests or proportionate voting power. The
other principal effects of the Reverse Stock Split Amendment will be that:
| ● | the number of issued and outstanding shares of Common Stock
(and treasury shares, if any), will be reduced proportionately based on the final reverse split ratio, as determined by the Board; |
| ● | based on the final reverse split ratio, the per share exercise
price of all outstanding options and warrants will be increased proportionately and the number of shares of Common Stock issuable upon
the exercise of all outstanding options and warrants will be reduced proportionately; and |
| ● | the number of shares reserved for issuance pursuant to any outstanding
equity awards and any maximum number of shares with respect to which equity awards may be granted will be reduced proportionately based
on the final reverse split ratio. |
The Board does not intend for a reverse stock
split to be the first step in a “going private transaction” within the meaning of Rule 13e-3 of the Exchange Act. The actual
number of shares outstanding after giving effect to the Reverse Stock Split Proposal will depend on the reverse split ratio that is ultimately
selected by the Board. The table below illustrates certain, but not all, possible reverse stock split ratios, together with the implied
number of issued and outstanding shares of the Common Stock resulting from implementation of the Reverse Stock Split based on [71,173,237]
shares of the Common Stock outstanding as of December 19, 2022. The reverse stock split will not affect the total number of authorized
shares under our certificate of incorporation.
Example Ratios
within Delegated
Range of Ratios |
|
Number of Authorized Shares of
Common Stock |
|
Implied Approximate Number of Issued and Outstanding Shares of Common Stock Following the Reverse Stock Split * |
1-for-5 |
|
500,000,000 |
|
[14,234,647] |
1-for-10 |
|
500,000,000 |
|
[7,117,323] |
1-for-20 |
|
500,000,000 |
|
[3,558,661] |
1-for-50 |
|
500,000,000 |
|
[1,423,464] |
*Excludes the effect of fractional share treatment.
All shares of Series A Preferred Stock that are
not present in person or by proxy at the Special Meeting as of immediately prior to the opening of the polls at the Special Meeting will
be automatically redeemed in the Initial Redemption. Any outstanding shares of Series A Preferred Stock that were not redeemed pursuant
to the Initial Redemption will be redeemed in whole, but not in part, (i) if and when ordered by our Board or (ii) automatically upon
the approval of the Reverse Stock Split Amendment effecting the Reverse Stock Split. Please refer to the discussion in the Questions and
Answers About the Special Meeting section under “Who is entitled to vote at the Special Meeting, and how many votes do they have?”
and “What vote is required to approve each matter and how are votes counted?” for a description of the voting power
of the Series A Preferred Stock.
Pursuant to the Certificate of Designation of
Series A Preferred Stock (the “Certificate of Designation”), each share of Series A Preferred Stock redeemed in any
redemption shall be redeemed in consideration for the right to receive an amount equal to $0.10 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) 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 our corporate secretary (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.
We are currently authorized to issue a maximum
of 500,000,000 shares of our Common Stock. As of the Record Date, there were [71,173,237] shares of our Common Stock issued and outstanding.
Although the number of authorized shares of our Common Stock will not change as a result of the Reverse Stock Split, the number of shares
of our Common Stock issued and outstanding will be reduced in proportion to the ratio selected by the Board. Thus, the Reverse Stock Split
will effectively increase the number of authorized and unissued shares of our Common Stock available for future issuance by the amount
of the reduction effected by the Reverse Stock Split.
Following the Reverse Stock Split, the Board will
have the authority, subject to applicable securities laws, to issue all authorized and unissued shares without further stockholder approval,
upon such terms and conditions as the Board deems appropriate. Although we consider financing opportunities from time to time, we do not
currently have any plans, proposals or understandings to issue the additional shares that would be available if the Reverse Stock Split
is approved and effected, but some of the additional shares underlie warrants, which could be exercised or converted after the Reverse
Stock Split Amendment is affected.
Effects of the Reverse
Stock Split
Management does not anticipate that the Company’s
financial condition, the percentage ownership of Common Stock by management, the number of the Company’s stockholders or any aspect
of the Company’s business will materially change as a result of the Reverse Stock Split Amendment. Because the Reverse Stock Split
Amendment will apply to all issued and outstanding shares of Common Stock and outstanding rights to purchase Common Stock or to convert
other securities into Common Stock the proposed Reverse Stock Split Amendment will not alter the relative rights and preferences of existing
stockholders, except to the extent the reverse stock split will result in fractional shares, as discussed in more detail below.
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 Amendment will not affect the registration of the Common Stock under the Exchange Act or the listing of the Common
Stock on Nasdaq to the extent it is still listed for trading on Nasdaq (other than to the extent it may facilitate compliance with Nasdaq
continued listing standards, if applicable). Following the reverse stock split, the Common Stock is expected to continue to be listed
on Nasdaq or OTC Bulletin Board, although it will be considered a new listing with a new Committee on Uniform Securities Identification
Procedures, or CUSIP, number.
The rights of the holders of the Common Stock
will not be affected by the Reverse Stock Split Amendment, other than as a result of the treatment of fractional shares as described below.
For example, a holder of 2% of the voting power of the outstanding shares of the Common Stock immediately prior to the effectiveness of
the Reverse Stock Split Amendment will generally continue to hold 2% of the voting power of the outstanding shares of the Common Stock
immediately after the reverse stock split. The number of stockholders of record will not be affected by the Reverse Stock Split Amendment
(except to the extent any are cashed out as a result of holding fractional shares). If approved and implemented, the Reverse Stock Split
Amendment may result in some stockholders owning “odd lots” of less than 100 shares of the Common Stock. Odd lot shares may
be more difficult to sell, and brokerage commissions and other costs of transactions in odd lots are generally higher than the costs of
transactions in “round lots” of even multiples of 100 shares. The Board believes, however, that these potential effects are
outweighed by the benefits of the Reverse Stock Split Amendment.
Effectiveness of the Reverse
Stock Split
The Reverse Stock Split Amendment, if approved
by the Company’s stockholders, would become effective upon the filing and effectiveness (the “Effective Time”)
of the Reverse Stock Split Amendment with the Secretary of State of the State of Delaware, which would take place at the Board’s
discretion. The exact timing of the filing of the Reverse Stock Split Amendment, if filed, would be determined by the Board based on its
evaluation as to when such action will be the most advantageous to the Company and the Company’s stockholders. In addition, the
Board reserves the right, notwithstanding stockholder approval and without further action by the stockholders, to elect not to proceed
with the Reverse Stock Split if, at any time (i) prior to filing the Reverse Stock Split Amendment with the Secretary of State of the
State of Delaware and (ii) before the one-year anniversary of the date on which the Reverse Stock Split is approved by the Company’s
stockholders at the Special Meeting, the Board, in its sole discretion, determines that it is no longer in the Company’s best interests
or the best interests of its stockholders to proceed with the Reverse Stock Split. If our Board does not implement the Reverse Stock Split
prior to the one-year anniversary of the date on which the Reverse Stock Split is approved by the Company’s stockholders at the
Special Meeting, the authority granted in this proposal to implement the Reverse Stock Split will terminate and the Reverse Stock Split
Amendment to effect the Reverse Stock Split will be abandoned.
Effect on Par Value; Reduction
in Stated Capital
The proposed Reverse Stock Split Amendment will
not affect the par value of the Company’s stock, which will remain at $0.001 per share of Common Stock and $0.001 per share of Preferred
Stock. As a result, the stated capital on the Company’s balance sheet attributable to its Common Stock, which consists of the par
value per share of Common Stock multiplied by the aggregate number of shares of Common Stock issued and outstanding, will be reduced in
proportion to the reverse stock split ratio selected by the Board. Correspondingly, the Company’s additional paid-in capital account,
which consists of the difference between its stated capital and the aggregate amount paid to the Company upon issuance of all currently
outstanding shares of the Common Stock, will be credited with the amount by which the stated capital is reduced. The Company’s stockholders’
equity, in the aggregate, will remain unchanged.
Book-Entry Shares
If the Reverse Stock Split is effected, stockholders,
either as direct or beneficial owners, will have their holdings electronically adjusted by the Company’s transfer agent (and, for
beneficial owners, by their brokers or banks that hold in “street name” for their benefit, as the case may be) to give effect
to the reverse stock split. Banks, brokers, custodians or other nominees will be instructed to effect the reverse stock split for their
beneficial holders holding Common Stock in street name. However, these banks, brokers, custodians or other nominees may have different
procedures than registered stockholders for processing the reverse stock split and making payment for fractional shares. If a stockholder
holds shares of Common Stock with a bank, broker, custodian or other nominee and has any questions in this regard, stockholders are encouraged
to contact their bank, broker, custodian or other nominee. The Company does not issue physical certificates to stockholders.
No Appraisal Rights
Under the Delaware General Corporation Law, the
Company’s stockholders are not entitled to dissenter’s rights or appraisal rights with respect to the reverse stock split
described in the Reverse Stock Split Proposal, and the Company will not independently provide its stockholders with any such rights.
Fractional Shares
The Company does not intend to issue fractional
shares in connection with the Reverse Stock Split. The Company currently anticipates that it will cause its exchange agent to aggregate
all fractional share interests following the Reverse Stock Split, sell the aggregated fractional shares interests into the market and
allocate and distribute the net proceeds received from such sale (reduced by any customary brokerage fees, commissions and other expenses)
among the stockholders who would otherwise hold a fractional share interest as a result of the reverse stock split on a pro rata basis.
Stockholders will not be entitled to receive interest for the period of time between the Effective Time and the date payment for their
fractional share interest is received. After the Reverse Stock Split is effected, a stockholder will have no further interest in the Company
with respect to its fractional share interest and persons otherwise entitled to a fractional share will not have any voting, dividend
or other rights with respect thereto, except to receive the above-described cash payment. Although the Company will pay any brokerage
fees, commissions and other expenses related to the exchange agent’s selling in the open market shares that would otherwise be fractional
shares, as described above, such expenses will reduce the cash amounts to be paid to stockholders in lieu of the receipt of fractional
shares. Stockholders should be aware that under the escheat laws of various jurisdictions, sums due for fractional interests that are
not timely claimed after the Effective Time may be required to be paid to the designated agent for each such jurisdiction. Stockholders
otherwise entitled to receive such funds, who have not received them, will have to seek to obtain such funds directly from the jurisdiction
to which they were paid.
Material U.S. Federal Income
Tax Considerations Related to the Reverse Stock Split
The following is a general summary of the material
U.S. federal income tax considerations to U.S. holders (as defined below) of the Reverse Stock Split. This discussion is based upon current
provisions of the Internal Revenue Code of 1986, as amended (the “Code”), existing and proposed Treasury regulations promulgated
under the Code (the “Treasury Regulations”) and judicial authority and administrative interpretations, all as of the date
of this document, and all of which are subject to change, possibly with retroactive effect, and are subject to differing interpretations.
Changes in these authorities may cause the tax consequences to vary substantially from the consequences described below. The Company has
not sought and will not seek an opinion of counsel or any rulings from the Internal Revenue Service (the “IRS”) with respect
to any of the tax considerations discussed below. As a result, there can be no assurance that the IRS will not assert, or that a court
would not sustain, a position contrary to any of the conclusions set forth below.
This discussion is limited to U.S. holders that
hold Common Stock as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment).
This discussion does not address any tax consequences arising under the tax on net investment income or the alternative minimum tax, nor
does it address any tax consequences arising under the laws of any state, local or non-U.S. jurisdiction, U.S. federal estate or gift
tax laws, or any tax treaties. Furthermore, this discussion does not address all aspects of U.S. federal income taxation that may be applicable
to U.S. holders in light of their particular circumstances or to U.S. holders that may be subject to special rules under U.S. federal
income tax laws, including, without limitation:
|
● |
a bank, insurance company or other financial institution; |
|
● |
a tax-exempt or a governmental organization; |
|
● |
a real estate investment trust; |
|
● |
an S corporation or other pass-through entity (or an investor in an S corporation or other pass-through entity); |
|
● |
a regulated investment company or a mutual fund; |
|
● |
a dealer or broker in stocks and securities, or currencies; |
|
● |
a trader in securities that elects mark-to-market treatment; |
|
● |
a holder of Common Stock that received such stock through the exercise of an employee option, pursuant to a retirement plan or otherwise as compensation; |
|
● |
a person who holds Common Stock as part of a straddle, appreciated financial position, synthetic security, hedge, conversion transaction or other integrated investment or risk reduction transaction; |
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a corporation that accumulates earnings to avoid U.S. federal income tax; |
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a person whose functional currency is not the U.S. dollar; |
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a U.S. holder who holds Common Stock through non-U.S. brokers or other non-U.S. intermediaries; |
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a person subject to Section 451(b) of the Code; or |
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a former citizen or long-term resident of the United States subject to Section 877 or 877A of the Code. |
If a partnership, or any entity (or arrangement)
treated as a partnership for U.S. federal income tax purposes, holds Common Stock, the tax treatment of a partner in such partnership
generally will depend on the status of the partner and the activities of the partnership and upon certain determinations made at the partner
level. A partner in a partnership holding Common Stock should consult its own tax advisor about the U.S. federal income tax consequences
of the Reverse Stock Split.
For purposes of this discussion, a “U.S.
holder” is a beneficial owner of shares of Common Stock that is for U.S. federal income tax purposes:
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an individual citizen or resident of the United States; |
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a corporation (or any other entity taxable as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia; |
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an estate, whose income is subject to U.S. federal income tax regardless of its source; or |
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a trust (i) the administration of which is subject to the primary supervision of a U.S. court and that has one or more United States persons that have the authority to control all substantial decisions of the trust or (ii) that has made a valid election under applicable Treasury Regulations to be treated as a United States person. |
Tax Consequences of the Reverse Stock Split
Generally
The Reverse Stock Split should constitute a “recapitalization”
for U.S. federal income tax purposes. As a result, a U.S. holder of Common Stock generally should not recognize gain or loss upon the
Reverse Stock Split, except with respect to cash received in lieu of a fractional share of Common Stock, as discussed below. A U.S. holder’s
aggregate tax basis in the shares of Common Stock received pursuant to the reverse stock split should equal the aggregate tax basis of
the shares of Common Stock surrendered (excluding any portion of such basis that is allocated to any fractional share of Common Stock),
and such U.S. holder’s holding period in the shares of Common Stock received should include the holding period in the shares of
Common Stock surrendered. Treasury Regulations provide detailed rules for allocating the tax basis and holding period of the shares of
Common Stock surrendered to the shares of Common Stock received in a recapitalization pursuant to the Reverse Stock Split. U.S. holders
of shares of Common Stock acquired on different dates and at different prices should consult their tax advisors regarding the allocation
of the tax basis and holding period of such shares.
Cash in Lieu of Fractional Shares
A U.S. holder of Common Stock that receives cash
in lieu of a fractional share of Common Stock pursuant to the Reverse Stock Split should generally recognize capital gain or loss in an
amount equal to the difference between the amount of cash received and the U.S. holder’s tax basis in the shares of Common Stock
surrendered that is allocated to such fractional share of Common Stock. Such capital gain or loss should be long-term capital gain or
loss if the U.S. holder’s holding period for Common Stock surrendered exceeds one year at the effective time of the Reverse Stock
Split. The deductibility of capital losses is subject to limitations.
Information Reporting and Backup Withholding
Cash payments received by a U.S. holder of Common
Stock pursuant to the Reverse Stock Split may be subject to information reporting and may be subject to U.S. backup withholding (currently
at 24%) unless such holder provides proof of an applicable exemption or a correct taxpayer identification number and otherwise complies
with the applicable requirements of the backup withholding rules. Any amount withheld under the U.S. backup withholding rules is not an
additional tax and will generally be allowed as a refund or credit against the U.S. holder’s U.S. federal income tax liability provided
that the required information is timely furnished to the IRS.
Required Vote
To be approved, Proposal 1 must receive the affirmative
vote of a majority of the combined voting power of the issued and outstanding shares of our Common Stock and Series A Preferred Stock
entitled to vote at the Special Meeting, voting together as a single class.
Recommendation
The Board recommends that you vote “FOR”
the
approval of the Reverse Stock Split Proposal.
SECURITY OWNERSHIP OF CERTAIN
BENEFICIAL OWNERS AND MANAGEMENT
Unless otherwise provided below, the following table sets forth information regarding beneficial ownership of our Common Stock as of December
1, 2022 and our Series A Preferred Stock as of December [19], 2022 by:
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each person, or group of affiliated persons, known to us to be the beneficial owner of 5% or more of the outstanding shares of our Common Stock; |
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each of our current directors; |
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our principal executive officer and other most highly compensated executive officer who served during the year ended December 31, 2021, whom, collectively, we refer to as our named executive officers; and |
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all of our executive officers and directors as a group. |
Beneficial ownership is determined in
accordance with the rules and regulations of the SEC and includes voting or investment power with respect to our Common Stock.
Percentage of beneficial ownership is based on [71,173,237] shares of our Common Stock outstanding as of December 1, 2022 and
[71,173.237] shares of Series A Preferred Stock outstanding as of December 1, 2022. In addition, shares of Common Stock subject to
options or other rights currently exercisable, or exercisable within 60 days of December [19], 2022, are deemed outstanding and
beneficially owned for the purpose of computing the percentage beneficially owned by (i) the individual holding such options,
warrants or other rights (but not any other individual) and (ii) the directors and executive officers as a group. Except as
otherwise noted, the persons and entities in this table have sole voting and investing power with respect to all of the shares of
our Common Stock beneficially owned by them, subject to community property laws, where applicable. Except as otherwise set forth
below, the address of the beneficial owner is c/o electroCore, Inc., 200 Forge Way, Suite 205, Rockaway, NJ 07866.
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Shares of Common Stock Beneficially Owned | |
Shares of Series A Preferred Stock | |
Percentage of Common Stock(1) | |
Percentage of Series A Preferred Stock(2) |
5% Stockholders: | |
| | | |
| | | |
| | | |
| | |
AWM Investment Company, Inc. (3) | |
| 4,655,747 | | |
| 4,655.747 | | |
| 6.50 | % | |
| 6.50 | % |
Directors and Named Executive Officers: | |
| | | |
| | | |
| | | |
| | |
Peter Cuneo(4) | |
| 258,824 | | |
| — | | |
| * | | |
| * | |
Joseph P. Errico(5) | |
| 4,472,030 | | |
| 3,686.251 | | |
| 6.28 | % | |
| 5.18 | % |
Thomas J. Errico, M.D.(6) | |
| 3,405,644 | | |
| 3,152.163 | | |
| 4.79 | % | |
| 4.43 | % |
John P. Gandolfo(7) | |
| 235,341 | | |
| 19.000 | | |
| * | | |
| * | |
Daniel S. Goldberger(8) | |
| 1,173,860 | | |
| 382.279 | | |
| 1.65 | % | |
| * | |
Julie A. Goldstein (9) | |
| 501,879 | | |
| 460.212 | | |
| * | | |
| * | |
Trevor J. Moody(10) | |
| 505,130 | | |
| 467.965 | | |
| * | | |
| * | |
Thomas M. Patton(11) | |
| 216,341 | | |
| 144.510 | | |
| * | | |
| * | |
Brian Posner(12) | |
| 405,824 | | |
| 96.555 | | |
| * | | |
| * | |
Patricia Wilber (13) | |
| 41,667 | | |
| — | | |
| * | | |
| * | |
All current executive officers and directors as a group (10 persons) | |
| 9,501,817 | | |
| 6,694.211 | | |
| 13.35 | % | |
| 9.41 | % |
* Less than one percent
(1) |
Based on 71,173,237 shares of Common Stock issued and outstanding as of December 1, 2022. Shares of Common Stock subject to options or warrants currently exercisable or exercisable within sixty (60) days of December 1, 2022, are deemed outstanding for purposes of computing the percentage of the person holding such options or warrants, but are not deemed outstanding for purposes of computing the percentage of any other person. Holders of unexercised options and warrants outstanding as of December 1, 2022 are deemed not to be holders of Series A Preferred Stock as of that date. |
(2) |
All shares of Series A Preferred Stock that are not present in person or by proxy at the Special Meeting as of immediately prior to the opening of the polls at the Special Meeting will be automatically redeemed. The Series A Preferred Stock is entitled to be voted together with the Common Stock as a single class on the Reverse Stock Split Proposal. |
(3) |
Based on a Schedule 13G filed on February 11, 2022. The address of AWM Investment Company, Inc. is 527 Madison Avenue, Suite 2600, New York, NY 10022. |
(4) |
Represents 258,824 options to purchase shares of common stock. |
(5) |
Represents 1,905,703 shares of common stock held directly by Mr. Errico and his individual retirement account; 266,350 shares of common stock held directly by Mr. Errico’s spouse, minor children and a trust for the benefit of Mr. Errico’s spouse and minor children; 246,801 shares of common stock and warrants held for the benefit of Mr. Errico and his spouse, minor children and a trust for their benefit indirectly by CV II, CV IV and certain other entities controlled by Joseph P. Errico and Dr. Thomas J. Errico (the “Other Entities”); and 630,331 options to purchase shares of common stock, 1,607 restricted stock units, and 153,841 deferred stock units held directly by Mr. Errico. Also includes an additional 1,932,687 shares and warrants held by CV II, CV IV, and the Other Entities for the benefit of persons other than Mr. Errico. Mr. Errico serves as a manager of CV II, CV IV, and certain of the Other Entities and has or shares voting control over such shares and warrants with Thomas J. Errico, M.D. |
(6) |
Represents 1,465,002 shares of common stock held directly by Dr. Errico; 19,454 shares of common stock held directly by a trust for the benefit of Dr. Errico’s family members; 52,661 shares of common stock and warrants held for the benefit of Dr. Errico indirectly by CV II, CV IV, and the Other Entities; and 210,261 options to purchase shares of common stock, and 43,220 deferred stock units held directly by Dr. Errico. Also includes an additional 2,126,827 shares and warrants held by CV II, CV IV, and the Other Entities for the benefit of persons other than Dr. Errico. Dr. Errico serves as a manager of CV II, CV IV, and certain of the Other Entities and has or shares voting control over such shares and warrants with Joseph P. Errico. |
(7) |
Represents 19,000 shares of common stock and 216,341 deferred stock units. |
(8) |
Represents 382,279 shares of common stock and 791,581 options to purchase shares of common stock. |
(9) |
Represents 41,667 deferred stock units and 460,212 shares of common stock. |
(10) |
Represents 467,965 shares of common stock, 2,834 options to purchase shares of common stock and 34,331 restricted stock units. |
(11) |
Represents 144,510 shares of common stock, 37,500 restricted stock units and 34,331 deferred stock units. |
(12) |
Represents 96,555 shares of common stock and 309,269 options to purchase shares of common stock. |
(13) |
Represents 41,667 restricted stock units. |
OTHER MATTERS
As of the date of this proxy statement, we know
of no matter not specifically referred to above as to which any action is expected to be taken at the Special Meeting. The persons named
as proxies will vote the proxies, insofar as they are not otherwise instructed, regarding such other matters and the transaction of such
other business as may be properly brought before the meeting, as seems to them to be in the best interest of our company and our stockholders.
NEXT YEAR’S ANNUAL
MEETING
Stockholder Proposals for
Inclusion in the Proxy Materials for the 2023 Annual Meeting of Stockholders
For stockholders to present proper proposals (other
than nominations of directors) for inclusion in our proxy materials for the 2023 annual meeting of stockholders on a timely basis, the
relevant information must be received by the Company’s Corporate Secretary at the principal executive offices of the Company, 200
Forge Way, Suite 205, Rockaway, NJ 07866, on or before June 14, 2023; provided that in the event that the date of the 2023 annual meeting
is advanced more than 30 days prior to, or delayed by more than 30 days after, the anniversary of this year’s annual meeting, the
relevant information must be received by the Company no later than the deadline set forth in a public announcement made by the Company,
which deadline will be a reasonable time after that public announcement and a reasonable time before the Company begins to print and send
its proxy materials for the 2023 annual meeting. All such proposals must comply with all of the requirements of Rule 14a-8 under the Exchange
Act, regarding the inclusion of the stockholder proposals in company-sponsored proxy materials.
Stockholder Proposals for
Consideration at the 2023 Annual Meeting of Stockholders, but not for Inclusion in the Proxy Materials
The Company’s amended and restated bylaws
also require advanced notice of any stockholder proposal to be proposed, but not included in our proxy materials for the 2023 annual meeting
(other than the nomination of candidates for election as a director). Any stockholder considering such a proposal should carefully review
the Company’s amended and restated bylaws, which describe the timing, procedural and substantive requirements for such proposal.
Proposals of matters for consideration at the 2023 annual meeting of stockholders, but not for inclusion in the proxy materials, must
be received no earlier than August 4, 2023 and no later than September 3, 2023; provided that in the event that the date of the 2023 annual
meeting is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of this year’s annual meeting,
notice by a stockholder to be timely must be received no 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 (i) the 90th day prior to such annual meeting or (ii) the close of business on
the 10th day following the day on which public announcement of the date of such meeting is first made.
Director Nominations by
a Stockholder without Soliciting Proxies for the 2023 Annual Meeting of Stockholders
The Company’s amended and restated bylaws
also require advanced notice of any stockholder proposal for nomination of candidates for election as a director. Any stockholder considering
a proposal for nomination of candidates for election as a director should carefully review the Company’s amended and restated bylaws,
which describe the timing, procedural and substantive requirements for such proposal. Proposals for director nominations must be received
no earlier than August 4, 2023 and no later than September 3, 2023; provided that in the event that the date of the 2023 annual meeting
is advanced more than 30 days prior to or delayed by more than 30 days after the anniversary of this year’s annual meeting, notice
by a stockholder to be timely must be received no 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 (i) the 90th day prior to such annual meeting or (ii) the close of business on the
10th day following the day on which public announcement of the date of such meeting is first made.
Director Nominations by
a Stockholder Intending to Solicit Proxies for the 2023 Annual Meeting of Stockholders
In addition to satisfying all the requirements
under the Company’s bylaws, to comply with the SEC’s new universal proxy rules for the Company’s 2023 annual meeting,
stockholders who intend to solicit proxies in support of director nominees other than the Company’s nominees must provide notice
that sets forth all of the information required by Rule 14a-19 under the Exchange Act no later than October 3, 2023 provided that the
date of the meeting has not changed by more than 30 calendar days. If such meeting date is changed by more than 30 days, then notice must
be provided by the later of 60 calendar days prior to the date of the annual meeting or the 10th calendar day following the day on which
public announcement of the date of the annual meeting is first made.
Householding of Proxy Materials
Some brokers and other nominee record holders
may be “householding” our proxy materials. This means a single notice and, if applicable, the proxy materials, will be delivered
to multiple stockholders sharing an address unless contrary instructions have been received. We will promptly deliver a separate copy
of the notice and, if applicable, the proxy materials and our 2021 annual report to stockholders, which consists of our Annual Report
on Form 10-K, as amended, for the fiscal year ended December 31, 2021, to you if you write or call us at electroCore, Inc., 200 Forge
Way, Suite 205, Rockaway, NJ 07866, Telephone: (973) 290-0097. If you would like to receive separate notices and copies of our proxy materials
and annual reports in the future, or if you are receiving multiple copies and would like to receive only one copy for your household,
you should contact your bank, broker, or other nominee record holder, or you may contact us at the above address and telephone number.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We are subject to the informational requirements
of the Exchange Act and, therefore, we file annual, quarterly and current reports, proxy statements and other information with the SEC.
Our SEC filings are available to the public on the SEC’s website at www.sec.gov. The SEC’s website contains reports, proxy
and information statements and other information regarding issuers, such as us, that file electronically with the SEC. You may also read
and copy any document we file with the SEC at the SEC’s Public Reference Room at 100 F Street, N.E., Room 1580, Washington, D.C.
20549. You may also obtain copies of these documents at prescribed rates by writing to the SEC. Please call the SEC at 1-800-SEC-0330
for further information on the operation of its Public Reference Room.
Annex A
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
ELECTROCORE, INC.
electroCore, Inc., a corporation organized and
existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:
1. The name of the Corporation is electroCore,
Inc.
2. The Certificate of Incorporation of the Corporation
is amended by adding the following new paragraph to the end of Article IV, Section C:
6. Upon the filing and effectiveness
(the “Effective Time”) of this amendment to the Corporation’s Certificate of Incorporation, as amended,
pursuant to the Delaware General Corporation Law, each [*1]
([*]) shares of the Common Stock issued immediately prior to the Effective Time (the “Old Common Stock”) shall
be reclassified and combined into one validly issued, fully paid and non-assessable share of the Corporation’s Common Stock, $0.001
par value per share (the “New Common Stock”), without any action by the holder thereof (the “Reverse
Stock Split”). No fractional shares of New Common Stock shall be issued as a result of the Reverse Stock Split and, in lieu
thereof, upon surrender after the Effective Time of a book entry position which formerly represented shares of Old Common Stock that were
issued and outstanding immediately prior to the Effective Time, any person who would otherwise be entitled to a fractional share of New
Common Stock as a result of the Reverse Stock Split, following the Effective Time, shall be entitled to receive a cash payment equal to
the fraction of a share of New Common Stock to which such holder would otherwise be entitled multiplied by the closing price per share
of the New Common Stock on The Nasdaq Stock Market LLC at the close of business on the date prior to the Effective Time. Each book entry
position that theretofore represented shares of Old Common Stock shall thereafter represent that number of shares of New Common Stock
into which the shares of Old Common Stock represented by such book entry position shall have been reclassified and combined; provided,
that each person holding of record a book entry position that represented shares of Old Common Stock shall receive, a new book entry position
evidencing and representing the number of shares of New Common Stock to which such person is entitled under the foregoing reclassification
and combination.
3. This Certificate of Amendment has been duly
adopted by the Board of Directors and stockholders of the Corporation in accordance with Section 242 of the General Corporation Law of
the State of Delaware.
4. This Certificate of Amendment shall become
effective as of 9:00 a.m., Eastern Time on [ ], 202[].
IN WITNESS WHEREOF, the Corporation has caused
this Certificate of Amendment to be duly executed in its corporate name as of the [ ]th day of [ ], 202[ ].
|
By_________________________________
Daniel S. Goldberger
Chief Executive Officer
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1
Range equals give [5] to fifty [50]
23
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