United
states
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
Amendment No. 1
☒ ANNUAL
report under section 13 Or 15(d) of the securities exchange act of 1934
For the fiscal year ended June 30, 2023
☐ TRANSITION
report under section 13 Or 15(d) of the securities exchange act of 1934
For the transition period from
Commission file number 001-38758
| RENOVARO
BIOSCIENCES INC. |
| (Exact name of registrant as specified in its charter) |
| Delaware
|
|
45-2259340
|
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. Employer
Identification No.) |
| |
|
|
2080 Century
Park East
Suite 906
Los Angeles, CA |
|
90067-2012 |
| (Address of principal executive offices) |
|
(Zip Code) |
+1(305) 918-1980
(Registrant’s telephone number, including area
code)
Securities registered pursuant to Section 12(b) of
the Act:
| Title of Each Class |
|
Trading Symbol |
|
Name of Each Exchange on Which Registered |
| Common Stock, par value $0.0001 per share |
|
RENB |
|
The Nasdaq Stock Market LLC |
Securities registered
pursuant to Section 12(g) of the Act: None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. ☐ Yes ☒
No
Indicate
by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. ☐ Yes
☒ No
Indicate
by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Exchange Act during
the last 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes ☒ No ☐
Indicate
by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule
405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant
was required to submit such files). Yes ☒ No ☐
Indicate
by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting
company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
| Large accelerated filer |
☐ |
Accelerated filer |
☐ |
| Non-accelerated filer |
☒ |
Smaller reporting company |
☒ |
| |
|
Emerging growth company |
☐ |
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Indicate
by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness
of its internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered
public accounting firm that prepared or issued its audit report. ☐
Indicate
by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Act). ☐ Yes ☒ No
On
December 31, 2022, the aggregate market value of the voting and non-voting common equity held by non-affiliates was $45,415,777.
As
of October 24, 2023, the number of shares outstanding of the registrant’s common stock, par value $0.0001 per share (the “Common
Stock”), was 66,698,144.
DOCUMENTS INCORPORATED
BY REFERENCE
None.
EXPLANATORY NOTE
Renovaro BioSciences, Inc. (the “Registrant,”
and together with its wholly owned subsidiaries, Renovaro Biopharma, Inc., a Delaware corporation (“Renovaro Biopharma”),
Renovaro Biosciences Denmark ApS, a Danish limited company (“Renovaro Denmark”) and Renovaro Technologies, Inc. a Nevada
corporation (“Renovaro Technologies”), the “Company,” “we,” “us” or “our”)
is filing this Amendment No. 1 on Form 10-K/A (this “Amendment”) to its Annual Report on Form 10-K for the fiscal year ended
June 30, 2023 (the “Original Filing”), which was originally filed with the Securities and Exchange Commission (the “SEC”)
on October 2, 2023, solely to include the information required in Part III (Items 10 through 14) of Form 10-K. In addition, we are amending
Item 15 of Part IV, (i) to include Exhibit 10.23, the Registrant’s 2023 Equity Incentive Plan and Exhibit 21.1 Subsidiaries, which
were inadvertently omitted from the Original Filing as a result of administrative error and (ii) to include new certifications by our
Chief Executive Officer and Chief Financial Officer as required by Section 302 of the Sarbanes-Oxley Act of 2002, as amended, in accordance
with Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Except as specifically described
above, no other changes have been made to the Original Filing. In order to preserve the nature and character of the disclosures in the
Original Filing, except as specifically discussed in this Amendment, no attempt has been made to modify or update such disclosures for
events which occurred subsequent to the Original Filing. Accordingly, this Amendment should be read in conjunction with the Company’s
subsequent filings with the SEC. Among other things, forward-looking statements made in the Original Filing have not been revised to
reflect events that occurred or facts that became known to us after the filing of the Original Filing, and such forward-looking statements
should be read in their historical context.
PART III
Item 10. Directors, Executive Officers and Corporate
Governance
Identification of Directors
The following is a description
of the business experience, qualifications, skills, and educational background of each of our directors, including each director’s
relevant business experience:
Mr. Renè Sindlev.
Mr. Sindlev, age 62, has served as the Chairman of the Board of Directors since June 2017. Mr. Sindlev has been successfully
self-employed since 1985 from the age of 23. He has been an investor and entrepreneur since 1997 through his holding companies, including
RS Group ApS, RS Arving ApS, RS Family ApS, RS Aviation ApS, and RS Bio ApS. In January 2014, Mr. Sindlev established
Dr. Smood Group of companies in both Denmark and the United States—a retail chain of USDA Certified Organic health
restaurants, an online e-commerce platform, and several beverage companies. Since 2014, he has served as its chairman. Mr. Sindlev has
previously founded, owned, developed, and sold more than 28 companies in the jewelry, aviation charter, real estate, and biosciences
businesses, such as World of Watches, Pandora A/S, RS Aviation ApS, MyFamily Office ApS, Renovaro Biosciences Inc among many
others. In 2002, Mr. Sindlev co-founded Pandora A/S and served as its President & Board Member, and as an advisor to the
board before and after its IPO on Nasdaq Copenhagen in 2010. Mr. Sindlev co-founded Renovaro Biosciences Inc. in February 2018
as an early biotech investor in DanDrit Biotech, Inc. We believe Mr. Sindlev’s experience as an entrepreneur
in successfully building start-up companies from the ground up qualifies him to serve as a director and Chairman of the Board
Dr. Mark Dybul. Dr.
Dybul, age 60, was appointed our Chief Executive Officer (CEO) and principal
executive officer, effective July 1, 2021. Prior to the appointment, he served as Executive Vice Chair of the Board since January 2019
and as a director since February 2018. Dr. Dybul served as a Professor in the Department of Medicine at Georgetown University Medical
Center as of July 2017 and was the Faculty Co-Director of the Center for Global Health and Quality until he became Renovaro BioSciences’
CEO. Dr. Dybul has worked on HIV and public health for nearly 30 years as a clinician, scientist, teacher, and administrator, most recently
as the Executive Director of the Global Fund to Fight AIDS, Tuberculosis and Malaria from 2013 through May of 2017. Prior to joining the
Global Fund, he was a principal architect and ultimately the head of the U.S. President’s Emergency Plan for AIDS Relief (PEPFAR),
the largest international health initiative in history dedicated to a single disease, which achieved historic prevention, care, and treatment
goals on time and on budget. During his tenure, the program’s funding grew from approximately $500 million to $6.5 billion annually.
After serving as Chief Medical Officer, Assistant, Deputy and Acting Director, he was appointed as its leader in 2006, becoming the U.S.
Global AIDS Coordinator, with the rank of Ambassador at the level of an Assistant Secretary of State. He served until early 2009. Earlier
in his career, after graduating from Georgetown Medical School in Washington D.C., Dr. Dybul joined the National Institute of Allergy
and Infectious Diseases, as a research fellow under director Dr. Anthony Fauci, where he conducted basic and clinical studies on HIV virology,
immunology, and treatment optimization, including the first randomized, controlled trial with combination antiretroviral therapy in Africa.
Dr. Dybul has written extensively in scientific and policy literature and has received several honorary degrees and awards, including
a Doctor of Science, Honoris Causa, from Georgetown University. Dr. Dybul is a member of the National Academy of Medicine. We believe
Dr. Dybul’s extensive experience in HIV and public health, as well as from being an educator and administrator, qualifies him to
serve as director and Chief Executive Officer.
Carol L. Brosgart, MD.
Dr. Brosgart, age 72, has served as a Director since December of 2019. Dr.
Brosgart serves on the boards of public and privately held biotech companies and public, not-for-profit, domestic, and global health organizations.
She is also a member of the Board of Directors of Galmed Pharmaceuticals, Ltd. (headquartered in Tel Aviv, Israel); Abivax, (headquartered
in Paris, France); Merlin (headquartered in Doylestown, PA); and Eradivir (headquartered in West Lafayette, Indiana). She also is the
Chair of Renovaro’s Scientific Advisory Board on HBV Cure and is the Chair of the Scientific Advisory Committee for Hepion (formerly
ContraVir), a biotechnology company working in the area of HBV Cure, NASH, and Hepatocellular Carcinoma. Previously, she served as a member
of Tobira Therapeutics’ Board of Directors from September 2009 until Allergan acquired Tobira in November 2016, and, she was formerly
on the following biotechnology Boards: Juvaris, a vaccine company until Bayer Company acquired its assets and on the Board of Mirum Pharmaceuticals.
She is a scientific advisor and consultant to a number of biotechnology companies in the areas of liver disease and infectious diseases
(Dynavax, Hepion, immgenuity, Mirum Pharmaceuticals, Moderna, and Pardes Biosciences). Dr. Brosgart serves as a Board member for the non-profit
organization, Berkeley Community Scholars (headquartered in California). She serves on the Steering Committee of the HBV Cure Group and
is also a member of the Liver Forum, both at the Forum for Collaborative Research at UC Berkeley School of Public Health. She is a member
of the Board of the Hepatitis B Foundation (HBF), serves on the Medical and Scientific Advisory Committee of the Hepatitis B Foundation,
and she is the Research Integrity Officer for the Hepatitis B Foundation and the Baruch S. Blumberg Institute. Dr. Brosgart also serves
on the National Advisory Committee of Hepatitis B United. She served for many years on the Boards of the SF AIDS Foundation and the Pangaea
Global AIDS Foundation. She is active in the public policy arena for the following professional organizations: AASLD and IDSA/HIVMA. Dr.
Brosgart served as Senior Advisor on Science and Policy to the Division of Viral Hepatitis at the CDC and the Viral Hepatitis Action Coalition
at the CDC Foundation from 2011 to 2014. Dr. Brosgart has also served as a member of the faculty of the School of Medicine at the University
of California, San Francisco, for the past four decades, where she is a Clinical Professor of Medicine, Biostatistics, and Epidemiology
in the Division of Global Health and Infectious Diseases. Previous positions include serving as Chief Medical Officer at biotechnology
company Alios BioPharma, Inc. Prior to Alios, Dr. Brosgart served as Senior Vice President and Chief Medical Officer of Children’s
Hospital & Research Center in Oakland, California, from 2009 until February 2011. Previously, she served for eleven years, from 1998
until 2009, at the biopharmaceutical company Gilead Sciences, Inc., where she held a number of senior management roles, most recently
as Vice President, Public Health and Policy and earlier as Vice President, Clinical Research and Vice President, Medical Affairs and Global
Medical Director, Hepatitis. She led the clinical development and FDA approval of a number of agents at Gilead, including Viread™
and Hepsera™. Prior to Gilead, Dr. Brosgart worked for more than 20 years in clinical care, research, and teaching at several Bay
Area medical centers. She was the founder and Medical Director of the East Bay AIDS Center at Alta Bates Medical Center in Berkeley, California,
from 1987 until 1998 and served as the Medical Director of Central Health Center, Oakland, California, of the Alameda County Health Care
Services Agency from 1978 until 1987. Dr. Brosgart received a B.S. in Community Medicine from the University of California, Berkeley and
received an M.D. from the University of California, San Francisco. Her residency training was in pediatrics, public health, and preventive
medicine at UCSF and UC Berkeley School of Public Health. She has published extensively in the areas of HIV, HBV, CMV, and liver disease.
We believe Dr. Brosgart’s extensive clinical experience in HIV and HBV, her significant clinical research and regulatory experience,
and her service in senior management and on numerous public and private boards in the biotechnology industry qualify her to serve as a
director.
Mr. Gregg Alton. Mr.
Alton, age 57, has served as a director since December 2019. Mr. Alton joined the Board after serving for 20 years at the biopharmaceutical
company Gilead Sciences, Inc. At Gilead, Mr. Alton served as interim Chief Executive Officer, responsible for the company’s strategy,
growth, and operations. As Chief Patient Officer, he led Gilead’s patient outreach and engagement initiatives and the company’s
efforts to facilitate access to its medicines around the world. He oversaw the corporate and medical affairs functions and developing
world access programs, as well as its digital patient solutions and patient-centered outcomes groups and commercial operations in certain
countries. Mr. Alton joined Gilead in 1999 and held a number of positions at the company with experience in legal, medical affairs,
policy and commercial. He
previously served as general counsel. Prior to joining Gilead, he was an attorney at the law firm of Cooley Godward, LLP, where he specialized
in mergers and acquisitions, corporate partnerships and corporate finance transactions for healthcare and information technology companies.
Mr. Alton is a member of the Board of Directors of Corcept Therapeutics, Brii Biosciences, Novavax, Inc., the Hepatitis Fund, and the
Boys and Girls Clubs of Oakland. Mr. Alton serves as a board observer for GARDP. He also serves on the U.S. government’s President’s
Advisory Council on HIV/AIDS, and the advisory board for the UC Berkeley College of Letters & Science. Mr. Alton received a bachelor’s
degree in legal studies from the University of California at Berkeley and a law degree from Stanford University. We believe Mr. Alton’s
decades of experience in senior management at a large pharmaceutical company, along with his legal and governance experience, qualifies
him to serve as a director.
Mr. James Sapirstein.
Mr. Sapirstein, age 62, has served as a director since March of 2018. Mr. Sapirstein joined the Board after having served over thirty-nine
years in the pharmaceutical industry. He is currently the Chairman, President and CEO of First Wave BioPharma (formerly AzurRx BioPharma)
and has served as the CEO of ContraVir Pharmaceuticals, Inc. (now Hepion), which is a company specializing in the Hepatitis B space.
After beginning his career in 1984 with Eli Lilly, he accepted a position at Hoffmann-LaRoche in 1987, where he served for almost a decade
as part of its commercial teams in the US and abroad. He held a number of positions at Hoffmann-LaRoche before moving to Bristol Myers
Squibb (BMS) in 1996 as the Director of International Marketing in the Infectious Disease group. While at BMS, he worked on several important
HIV/AIDS projects, including Secure the Future. Later, Mr. Sapirstein started his career in smaller biotech companies when he joined
Gilead Sciences, Inc. (GILD) in order to lead the Global Marketing team in its launch of Viread (tenofovir). In 2002, he accepted the
position of Executive Vice President of Metabolic and Endocrinology for Serono Laboratories before becoming the founding CEO of Tobira
Therapeutics in 2006. In 2012, after several years in the infectious diseases space, Mr. Sapirstein became the CEO of Alliqua Therapeutics
at Alliqua, Inc. He is also a Board Director for the Emerging Companies Section Governing group of the Biotechnology Innovation Organization
(BIO) and the Chairman Emeritus of BIO’s New Jersey Chapter (BioNJ). Mr. Sapirstein received his MBA from Fairleigh Dickinson University
and his B.Pharm. from Rutgers University. We believe Mr. Sapirstein’s extensive experience as a biotechnology executive and as
a board member in the biopharma industry and industry associations qualifies him to serve as a director.
Mr. Henrik Grønfeldt-Sørensen.
Mr. Grønfeldt-Sørensen, age 51, has served as a director since October 2017, has been the Chief Executive Officer of RS
Group ApS, RS Arving ApS, and RS Family ApS since October 2012, and he has served as a director of Dr. Smood Group, Inc. since January
of 2014. RS Group of Companies is a family office in Denmark with global investments within the real estate, charter business, food &
beverage, and biosciences industries. Mr. Grønfeldt-Sørensen has over 10 years experience in different CEO and management
positions; Danske Bank in Denmark, and the Danish Bank Nykredit in France. Mr. Grønfeldt-Sørensen holds an eMBA from University
of Monaco (2011). We believe Mr. Grønfeldt-Sørensen’s significant experience in corporate management and investor
relations qualifies him to serve as a director.
Ms. Jayne McNicol.
Ms. McNicol, age 57, has served as a director and chair of our audit committee since May of 2021. Since May 2017, Ms. McNicol has been
the Chief Financial Officer of the California Life Sciences Association, a nonprofit, membership-based trade association that empowers
the life sciences community to deliver innovative solutions for healthier lives. Previously, from July 2001 to April 2017, Ms. McNicol
was a Partner of Assurance Services at Ernst & Young LLP, serving public and private life sciences companies primarily in the San
Francisco Bay Area. Prior to this, Ms. McNicol served in positions of increasing responsibility at Ernst & Young and its predecessor,
Arthur Young, initially in
Bristol, England, and later in the San Francisco Bay Area. Ms. McNicol is a Certified Public Accountant with the California Board of
Accountancy and a Chartered Accountant with the Institute of Chartered Accountants in England and Wales. She holds a Bachelor of Arts
degree in English from the University of Leeds, England. We believe Ms. McNicol’s significant experience in financial management
within the life sciences industry qualifies her to serve as a director and chair of our audit committee.
Ms. Leni Boerner. Ms.
Boerner, age 59, joined as a director in October 2023. Prior to her appointment, Ms. Boeren has worked in the financial sector for forty
years. From 2000 to 2005, Ms. Boeren worked for Euronext N.V. (Euronext: ENX) where she worked in multiple positions. Ms. Boeren was
a managing director of Information Services, a managing director of the business strategy department, executive director of marketing,
and member of the Executive Committee of Euronext. She was also Managing Director of Euronext Indices B.V. from 2000 to 2005, as well
as Director of Euronext Amsterdam International B.V. and Euronext London Ltd. from 2000 to 2003. From 2005 to 2016, Ms. Boeren worked
at Robeco Groep N.V., an international asset manager offering institutional investors around the globe a wide range of active investments,
from stocks to bonds and from research-driven fundamental to quantitative investment strategies, where she served in several executive
and managerial roles, including Member of the Management Board (2005 to 2014), Vice-Chair of the Management Board (2014 to 2016), and
Chair of the Board (May 2016 to October 2016). From 2014 to 2016, Ms. Boeren also served as CEO of Robeco Institutional Asset Management
B.V. She was also Chair of Board of Directors of Boston Partners Global Investors Inc., an investment firm specialized in equity investing
worldwide from 2007 to 2016. From 2010 to 2016, Ms. Boeren was Vice-Chair of the Board of Directors of SAM Sustainable Asset Management
A.G., a company exclusively focusing on sustainability solutions for investors including the S&P/DJ Sustainability Indexes. In 2016,
Ms. Boeren was a member of the Board of Directors of Harbor Capital Advisors, Inc., an asset management company focused on sourcing external
investment team for their products. From 2015 to 2019, Ms. Boeren also served as the Chair of the Supervisory Board and member of the
Remuneration Committee of Transtrend B.V., which provides investment management services through the development and application of systematic
trading strategies. From 2018 to 2020, Ms. Boeren was the CEO of Kempen Capital Management N.V., a unique special asset management company
that was a star player in niche markets such as small caps, real estate, high yield and hedge fund strategies, where she was also a member
of the Executive Committee of Van Lanschot Kempen N.V. (Euronext: VLK.AS), a wealth management company. In 2013, she was a Member of
the Committee Monitoring Talent to the Top, a non-profit company which aims to make the senior management of companies more diverse and
inclusive. From 2007-2014 she was Vice-Chair of the Supervisory Board and Chair of the Audit Committee of Tergooi Hospitals. From 2018
to 2020, she was also a member of the Board of FCLTGlobal, USA, a non-profit organization that develops research and tools to drive a
longer-term focus in business and investment decision-making globally. Ms. Boeren has held non-executive positions with NIBC Holding
N.V. and NIBC Bank since 2021, Air France-KLM S.A. (Euronext:AF.PA) since 2017, Ohpen Expeditions N.V. since 2021, and Mollie Holding
B.V. and Mollie B.V. beginning in 2023. Ms. Boeren has served on the Capital Market Committee of the Dutch regulator, the Authority for
the Financial Markets since 2022. She has also been a member of the Advisory Board of Keyser & Mackay since 2021, and a member of
the Board of Stichting Administratiekantoor Koninklijke Brill since 2020. She now mainly focuses on business and leadership transitions.
We believe her substantial experience in capital markets and asset management qualifies her to serve as a director.
Mr. Ruud Hendriks. Mr.
Hendriks, age 77, joined as a director in October 2023. Mr. Hendriks has
been working in the fund management industry for over 35 years. In the course of his international career, Mr. Hendriks has held senior
roles at several of the most recognized names in the business. Mr. Hendriks currently works as a Senior Advisor to Pictet Group,
a leading independent investment firm where he has served since 2023 and Van Lanschot Kempen N.V., an independent
wealth manager he has served since 2020. Since 2023, he also serves as an Ambassador to Add Value Fund Management B.V. an investment fund
listed on the Dutch stock exchange. He has served since 2009 as Chairman of the Advisory Board of Financial Assets Executive Search, a
leading Dutch Executive Search & Interim Management agency for board, management, and specialist positions in and around the financial
sector. He has been a member of the Board of Directors of [Kos Technologies Artificial Intelligence Corporation], an innovative technology
firm focused on the use of artificial intelligence in the research for and development of healthcare solutions since May 2022. From 2010
to 2016, Mr. Hendriks worked as a Senior Advisor to KKR & Co. Inc. Previously, he worked for Goldman Sachs Asset
Management, which he joined in 2000 as Managing Director, becoming Co-Head of Sales for Europe (excluding Germany and Austria), Middle
East and Africa in 2006, where he served until 2009. Prior to joining Goldman, Mr. Hendriks was a member of the executive board for Rodamco
N.V. the property fund of Robeco Group, between 1980 and 1996. Mr. Hendriks was also a senior advisor for Citi in the United
Kingdom from April 2012 to October 2013. He was a senior advisor to the Board at Syntrus Achmea, an investment manager for institutional
investors, from 2010 to 2012. He also served as a non-executive director at MAN Group PLC, a stock listed global investor in private markets
specializing in hedge funds, from 2009 to 2011. Mr. Hendriks was also a member of the Board of external advisors at Polaris from 2009
to 2011. He also was a senior advisor to Lombard Odier, an Swiss wealth manager focused on sustainability. He earned his MA in Private
Law from the Free University in Amsterdam in 1972. We believe Mr. Hendrik’s broad experience in the asset management and finance industries
and his familiarity with the overlap between healthcare and artificial intelligence qualifies him to serve as a director.
Mr. Avram Miller. Mr.
Miller, age 78, joined as a director and as an advisor in October 2023. Mr. Miller is a business strategist, venture capitalist, scientist,
technologist, and author. He is best known for his work at Intel Corporation (NASDAQ:INTC) from 1984 to 1999. His tenure as Vice President,
Business Development began in 1988, and he was later elected Corporate Vice President by Intel’s Board of Directors. Mr. Miller
co-founded Intel Capital, one of the world’s leading Corporate Venture groups, and led Intel’s successful initiative to create
residential broadband. After leaving Intel, Miller founded the Avram Miller Company, which provides strategic advice to technology companies
worldwide. Forbes Magazine has listed him as one of the 100 most successful technology investors. He has served on a number of company
boards in both high-tech and health care and has advised a number of financial service companies. Mr. Miller also served as Vice Chairman
of the Board of Sommetrics, a company focused on improving health and well-being by optimizing sleep quality, from November 2012 to December
2018. Before his career in high tech, Mr. Miller worked in medical science. He is one of the founders of the Thoraxcenter, Erasmus University
Rotterdam, a prominent cardiovascular and pulmonary medicine center. Presently, he combines his expertise in technology with his interest
in healthcare to advise and invest in early-stage medical technology companies and medical institutions such as the Cleveland Clinic
and Sheba Hospital. He is the author of “The Flight of a Wild Duck,” published in 2021. We believe Mr. Miller’s unique
background in medical science and technology and, in particular, his experience dealing with the opportunities fueled by rapid technological
changes qualifies him to serve as a director.
Family Relationships
There are no family relationships, as defined in
subparagraph (d) of Item 401 of Regulation S-K among any of our executive officers or directors.
Involvement in Certain Legal Proceedings
There are no material proceedings to which ay director
or executive officer or any associate of any such director or officer is a party adverse to our Company or has a material interest adverse
to our Company.
The Board and Board Committees
The Board. The
Board met 11 times for meetings during fiscal 2023, and also acts by written consent. Two of such meetings were regularly scheduled meetings
and other special Board meetings and telephonic calls were held as needed. During fiscal year 2023, each incumbent director attended
75% or more of the Board meetings for the periods during which each such director served. Directors are not required to attend annual
meetings of our stockholders.
Audit Committee and
Audit Committee Financial Experts
The Audit Committee has been
structured to comply with the requirements of Rule 10A-3(b)(1) promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”), and the listing standards of NASDAQ, and each member and former member of the Audit Committee complied
with such requirements and standards. The members of the Audit Committee are currently Jayne McNicol (Chair), James Sapirstein, and Gregg
Alton.
The Audit Committee oversees
and reports to our Board on various auditing and accounting-related matters, including, among other things, the maintenance of the integrity
of our financial statements, reporting process, and internal controls; the selection, evaluation, compensation, and retention of our
independent registered public accounting firm; legal and regulatory compliance, including our disclosure controls and procedures; and
oversight over our risk management policies and procedures. The Audit Committee appoints and sets compensation for the independent
registered public accounting firm annually and reviews and evaluates such auditor. This external auditor reports directly to the Audit
Committee. The Audit Committee establishes our hiring policies regarding current and former partners and employees of the external auditor.
In addition, the Audit Committee pre-approves all audit and non-audit services undertaken by the external auditor and any outside consultants
engaged in work related to the Company’s financial reporting. The Audit Committee has direct responsibility for overseeing the
work of the external auditor engaged for the purpose of preparing or issuing an auditor’s report or performing other audits, review
or attest services, including the resolution of disagreements between the external auditor and management. The Audit Committee meets
at least once per fiscal quarter to fulfill its responsibilities under its charter and in connection with the review of the Company’s
quarterly and annual financial statements.
The Board has determined that
each member of the Audit Committee has the appropriate level of financial understanding and industry-specific knowledge to be able to
perform the duties of the position, and they are financially literate and have the requisite financial sophistication as required by
the applicable listing standards of NASDAQ. The Board has determined that both Ms. McNicol and Mr. Alton are “audit committee financial
experts” as defined by applicable SEC and Nasdaq rules.
The Audit Committee met 5 times during fiscal 2023, where the committee members
attended 80% or more of the meetings during his or her period of service, and the Committee also acts by written consent. The Audit Committee
operates under a charter that was adopted by our Board and is posted on our website at www.renovarobio.com.
The Audit Committee reviewed
and discussed the audited financial statements for the 2023 fiscal year with management, and with Sadler, Gibb & Associates, LLC
(“Sadler”), the Company’s independent registered public accounting firm. Further, the Audit Committee also discussed
with Sadler the matters required to be discussed by the applicable requirements of the Public Company Accounting Oversight Board (the
“PCAOB”) and the SEC. The Audit Committee reviewed permitted services under the rules of the SEC as currently in effect and
discussed with Sadler its independence from management and the Company, including the matters in the written disclosures and the letter
from Sadler required by the applicable requirements of the PCAOB regarding the independent accountant’s communications with the
Audit Committee concerning independence.
Based on its review of the
financial statements and the aforementioned discussions, the Audit Committee recommended to the Board of Directors that the audited financial
statements be included in the Company’s Annual Report on Form 10-K for the fiscal year ended June 30, 2023, for filing with the
SEC.
THE AUDIT COMMITTEE
Jayne McNicol (Chair)
James Sapirstein
Gregg Alton
Nominating and Corporate Governance Committee
The members of our Nominating
and Corporate Governance Committee are currently Carol L. Brosgart, M.D. and Gregg Alton (Chair).
The Nominating and Corporate
Governance Committee, as permitted by, and in accordance with, its charter, is responsible for matters related to the selection of directors
for appointment and/or election to the Board. This includes establishing criteria for, identifying, and recommending potential candidates
for nomination to serve on the Board, and establishing criteria to consider recommendations from the stockholders of the Company. The
Nominating and Corporate Governance Committee considers and makes recommendations with respect to the independence of all directors.
The Nominating and Corporate
Governance Committee is also responsible for maintaining compliance with applicable corporate governance requirements under the Exchange
Act and the listing standards of NASDAQ. The Nominating and Corporate Governance Committee oversees the evaluation of the Board, including
with respect to corporate governance, and develops and recommends to the Board corporate governance guidelines.
The Nominating and Corporate
Governance Committee acted 1 time during fiscal 2023 by written consent. The Nominating and Corporate Governance Committee operates under
a charter that was adopted by our Board and is posted on our website at www.renovarobio.com.
Compensation Committee
The members of our Compensation
Committee are currently James Sapirstein (Chair) and Carol L. Brosgart, M.D.
The Compensation Committee,
as permitted by, and in accordance with, its charter, is responsible for assisting the Board in fulfilling its responsibilities relating
to matters of human resources and compensation, including equity compensation, and to establish a plan of continuity and development
for our senior management. The Compensation Committee periodically assesses compensation of our executive officers in relation to companies
of comparable size, industry, and complexity, taking the performance of the Company and other companies into consideration. All decisions
with respect to the compensation of our principal executive officer are determined and approved solely by the Compensation Committee.
All decisions with respect to other executive compensation, including incentive compensation and equity-based plans, are first approved
by the Compensation Committee and then submitted, together with the Compensation Committee’s recommendation, to the members of
the Board for final approval. In addition, the Compensation Committee will, as appropriate, review and approve public or regulatory disclosure
relating to compensation, including the Compensation Disclosure and Analysis, and any metrics for performance measurements. The Compensation
Committee has the authority to retain and compensate any outside adviser as it determines necessary to permit it to carry out its duties
and engage such a consultant in connection with the Company’s compensation for the 2023 fiscal year.
The Board has determined that
each member of the Compensation Committee is a “nonemployee director” as that term is defined under Rule 16b-3 of the Exchange
Act and an “outside director” as that term is defined in Treasury Regulation Section 1.162-27(e)(3). The Compensation Committee
meets periodically and at least annually in connection with determining the compensation of management for each fiscal year.
The Compensation Committee
met 3 times during fiscal year 2023 and acted by written consent 4 times. The Compensation Committee operates under a charter that was
adopted by our Board and is posted on our website at www.renovarobio.com.
The Compensation Committee
has considered the potential risks arising from the Company’s compensation for all employees and does not believe the risks from
those compensation practices are reasonably likely to have a material adverse effect on the Company.
Executive Officers Who Are Not Directors
Luisa Puche. Ms. Puche, age 60, is our Chief Financial Officer and principal financial officer
since January 2019. Ms. Puche brings over 30 years of strong cross-functional leadership experience in both publicly-traded and privately-held
companies in various industries. Leveraging her broad global audit, advisory, and corporate expertise, she became president of Puche Group,
LLC, where she served as a senior accounting and financial advisor in a variety of advisory capacities including executive outsourcing,
technical accounting consultations; complex technical implementations, M&A transactions; IT Risk assessments; and SOX 404 implementations.
During this period, she led the global implementation of the latest revenue recognition accounting standard for Fresh Del Monte Produce
Inc., a $4B publicly traded global fresh produce company, as well as the global implementation of their SOX-404 program. Previously, Ms.
Puche served in various senior executive roles at Brightstar Corp., a $10B global wireless device services provider, with public reporting
requirements, including as Vice President/Global Controller culminating in Interim Chief Accounting Officer. During her tenure at the
Company she was responsible for the financial reporting of 55 countries, as well as being instrumental in various key transactions including
a $1.6B European acquisition and the sale of Brightstar to SoftBank. Ms. Puche was an executive at Ernst & Young, a big 4 accounting
firm, where she served for approximately 10 years. Ms. Puche holds a Bachelor of Accounting from Florida International University.
François Binette.
On October 18, 2022, the Company appointed Francois Binette PhD, age 60, as Chief Operating Officer of the Company, effective November
1, 2022. Dr. Binette has served as the Company’s Executive VP for Research & Development since April 2022. Dr. Binette has
over 25 years of product development expertise in advanced therapies and regenerative medicine. From 2016 to just prior to joining the
Company, Dr. Binette was at Lineage Cell Therapeutics, Inc (NYSE:LCTX), a leading company in the field of pluripotent stem cell therapy
development with a global footprint focused on ophthalmology, cancer vaccines, and spinal cord injuries, where he served as the Senior
Vice President R&D, Global Head of Product Development and led the CNS franchise as well as general pipeline development, contributing
to one of the largest non-cancer cell therapy corporate partnership deals with Genentech worth over $650 million in upfront and milestone
payments. During his first industry appointment at Genzyme Tissue Repair in Cambridge, he helped pioneer Carticel™ for cartilage
repair, the first FDA BLA-approved cell therapy product for human use. He then led R&D for Biosyntech, a startup biomaterials company
in Montreal applying its proprietary platform for various tissue engineering and drug delivery applications. Dr. Binette then joined
the DePuy Franchise of Johnson and Johnson (NYSE:JNJ), the second largest orthopedic business worldwide where he led several innovative
regenerative medicine combination product development initiatives from discovery to approved clinical trials in US and Europe. Dr. Binette
received his PhD from Laval University in Québec City, followed with post-doctoral training at the Sanford-Burnham institute,
and Harvard Medical School.
Delinquent Section 16(a) Reports
Section
16(a) of the Securities Exchange Act of 1934 requires executive officers, directors and persons who own more than 10% of a registered
class of our equity securities to file reports of ownership with the Securities and Exchange Commission. Based
solely on our review of the copies of such forms received by us, we believe that during the fiscal year ended June 30, 2023, all filing
requirements were timely satisfied, except (i) late Form 4’s were filed for Rene Sindlev on July 18, 2022 and October 25, 2022,
(ii) a late Form 4 was filed for Henrik Gronfeldt-Sorensen on October 26, 2022, (iii) a late Form 4 was filed for Jayne McNicol on June
14, 2023, (iv) a late Form 4 was filed for Carol Brosgart on January 5, 2023, (v) a late Form 4 was filed for Gregg Alton on January
5, 2023, (vi) a late Form 4 was filed for James Sapirstein on April, 4, 2023, (vii) a late Form 4 was filed for Mark Dybul on September
15, 2022, (viii) late Form 4’s were filed for Luisa Puche on July 26, 2022 and October 27, 2022, and (ix) a late Form 3 was filed
for Francois Binette on August, 18, 2022 and a late Form 4 for Francois Binette on October 27, 2022.
Code of Ethics
Our Board has adopted a Code
of Ethics and Conduct (our “Code of Ethics”). Our Code of Ethics sets forth standards of conduct applicable to our employees,
officers and directors to promote honest and ethical conduct, proper disclosure in our periodic filings, and compliance with applicable
laws, rules and regulations. Our Code of Ethics is available to view at our website, www.renovarobio.com by clicking on Investors/Media-Corporate
Governance. We intend to provide disclosure of any amendments or waivers of our Code of Ethics on our website within four business days
following the date of the amendment or waiver.
Item 11. Executive Compensation
| Name
and Principal Position | |
Year | |
Salary ($) | |
Bonus | |
Stock
Awards ($) | |
Option Awards
($)(1) | |
Non-equity
incentive
plan
compensation ($) | |
Other
Compensation
($) | |
Total
($) |
| Mark Dybul, M.D. (2) | |
| 2023 | | |
$ | 664,583 | | |
$ | 100,000 | | |
$ | — | | |
$ | 640,850 | | |
$ | — | | |
$ | — | | |
$ | 1,405,433 | |
| Chief Executive Officer | |
| 2022 | | |
$ | 850,000 | | |
$ | 100,000 | | |
$ | — | | |
$ | 9,801,000 | | |
$ | — | | |
$ | — | | |
$ | 10,751,000 | |
| Francois Binette | |
| 2023 | | |
$ | 389,375 | | |
$ | 115,000 | | |
$ | — | | |
$ | 377,195 | | |
$ | — | | |
$ | — | | |
$ | 881,570 | |
| Chief Operating Officer &EVP-R&D | |
| 2022 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | |
| Luisa Puche | |
| 2023 | | |
$ | 325,000 | | |
$ | 185,000 | | |
$ | — | | |
$ | 130,000 | | |
$ | — | | |
$ | — | | |
$ | 640,000 | |
| Chief Financial Officer | |
| 2022 | | |
$ | 293,750 | | |
$ | 110,000 | | |
$ | 9,812 | | |
$ | 375,780 | | |
$ | — | | |
$ | — | | |
$ | 789,342 | |
| (1) |
The amounts shown do not reflect compensation actually received by the executive officer. Instead, the amounts
shown are the total grant date valuations of stock option grants awarded during the year as determined pursuant to ASC Topic 718. The
valuations are expensed for financial reporting purposes over the vesting period of the grant. The performance-based options awarded
to Mr. Dybul in the fiscal year ended June 30, 2022, have been completely forfeited as of June 30, 2023. |
| (2) |
Effective January 1, 2023, Mr. Dybul took a reduction in base salary
from $850,000 to $550,000. |
Arrangements with Named Executive Officers
During the fiscal year ended
June 30, 2023, we had agreements in place with Dr. Dybul, Mr. Binette, and Ms. Puche. A description of each agreement is set forth below.
Mark R. Dybul, M.D.
Since January 7, 2019, when Dr. Dybul became our principal executive officer by virtue of his appointment as Executive Vice-Chair
of the Board, Dr. Dybul received compensation as Executive Vice Chair of the Board under his Amended and Restated Director’s Agreement,
as amended on May 1, 2019 (the “Director Agreement”), which called for cash compensation of $430,000 per annum, and the grant
of options to purchase 300,000 shares of common stock, which was granted on November 21, 2018. The Director Agreement did not provide
for any payments or other benefits upon a change in control. Dr. Dybul was given a one-time grant of options to purchase 450,000 shares
of common stock at a strike price of $8.00 per share on June 11, 2020.
On October 30, 2019, the Compensation
Committee approved and presented to the Board an employment agreement whereby Dr. Dybul would serve as the Company’s Chief Executive
Officer (the “Employment Agreement”) which was recommended by the Board for approval by our stockholders. On October 31,
2019, our stockholders approved the Employment Agreement via written consent. Effective July 1, 2021, Dr. Dybul and the Company entered
into the Executive Employment Agreement in connection with his appointment to Chief Executive Officer. The Employment Agreement was subsequently
amended on December 12, 2022, effective January 1, 2023. The following is a summary of the Employment Terms and other material terms
of the Employment Agreement, as amended.
Term. Dr. Dybul
will serve as Chief Executive Officer for a term of three (3) years with automatic yearly renewal terms thereafter unless terminated
at least 90 days before the expiry of a term.
Duties. Dr.
Dybul will perform duties consistent with the position of Chief Executive Officer, as directed by and reporting to the Board, where he
shall remain a director but without further compensation for Board service. Dr. Dybul will devote a substantial majority of his business
time and attention to the performance of his duties with the Company, but he will be able to hold positions with charitable organizations
approved by the Board and serve on boards of up to five non-competitive entities, with prior approval by the Board required for publicly
traded companies.
Place of Employment
and Expenses. Dr. Dybul shall work out of the Company’s headquarters in Los Angeles, commuting as needed. Dr. Dybul
shall be reimbursed for reasonable expenses for accommodations in Los Angeles and a company car.
Cash Compensation.
Dr. Dybul shall be entitled to a base salary of Five Hundred Fifty Thousand Dollars ($550,000) per year. Dr. Dybul shall be eligible
for a bonus of up to $800,000 per year in the sole discretion of the Compensation Committee and in accordance with any short-term incentive
plan adopted by the Company.
Benefits. Dr.
Dybul shall receive benefits provided to similarly situated employees of the Company and five (5) weeks’ vacation per year.
Termination.
The Employment Agreement may be terminated by the Company for “Cause” or by Dr. Dybul without “Good Reason” (each
as defined therein), in which case Dr. Dybul will only receive accrued compensation and benefits. In the event the Company terminates
the Employment Agreement without Cause or Dr. Dybul terminates the Agreement with Good Reason, Dr. Dybul will receive his base salary
for one (1) year and vesting of one (1) years’ worth of unvested options.
Change in Control.
Upon a change in control, the option grant described below shall immediately vest, and Dr. Dybul shall have the right to terminate the
Employment Agreement for Good Reason.
Restrictive Covenants.
Dr. Dybul shall be subject to restrictive covenants set forth in that certain Confidential and Proprietary Information Agreement attached
to the Employment Agreement, which are independent of the obligations set forth in the Employment Agreement. The restrictive covenants
include non-compete, non-solicitation and non-disparagement obligations for one (1) year, provided that the Company shall continue to
pay his base salary for such one (1) year period.
Description of the Option
Grant. Upon appointment to Chief Executive Officer, Dr. Dybul was awarded an option to purchase 3,000,000 shares of the Company’s
common stock at an exercise price equivalent to the closing price per share quoted on the NASDAQ Stock Market on the trading day prior
to the grant date. The option has a ten-year term, subject to continued employment, and 2,000,000 of the shares will vest ratably on
July 1, 2022, July 1, 2023, and July 1, 2024. One-third of the remaining 1,000,000 shares are subject to vesting at the end of each of
the three years beginning with the year ending June 30, 2023, based upon the achievement by the Company of certain benchmarks. 333,333
shares that required achievement of certain benchmarks to vest were forfeited as of June 30, 2022, and the remaining balance of 666,667
shares were forfeited as of June 30, 2023.
Francois Binette.
Pursuant to his offer letter from the Company, dated February 22, 2022, Mr. Binette was hired as the Company’s Executive VP for
Research & Development starting April 2022 with an annual base salary of $375,000, and is eligible for a discretionary cash bonus,
with a target of 40% of his base salary. Mr. Binette also received a grant of options to purchase 65,000 shares of Common Stock, vesting
on the first anniversary of the date of hire. On October 18, 2022, Mr. Binette was appointed as Chief Operating Officer of the Company,
effective November 1, 2022, and pursuant to an amendment to his offer letter, received an increase in base salary to $420,000 and 40,000
options, vesting in equal increments over three years.
Luisa Puche.
Pursuant to her offer letter from the Company, dated December 28, 2018 (the “Offer Letter”), Ms. Puche received an annual
base salary of $200,000, and is eligible for a discretionary cash bonus, with a target of 40% of her base salary. Ms. Puche also received
a grant of options to purchase 60,000 shares of Common Stock and 15,000 restricted stock units, each vesting in equal increments over
three years. The Offer Letter provides for at will employment; provided however, that upon termination of Ms. Puche’s employment
by the Company without cause, or for a termination of employment by Ms. Puche for good reason, she will receive six months’ salary
and COBRA eligibility. Additionally, if the termination without cause or for good reason occurs within 12 months of a change in control,
Ms. Puche will also be entitled to a pro-rata bonus and immediate vesting of any unvested options or restricted stock units. Ms. Puche
had a base salary of $300,000 for the fiscal year 2022. Effective October 18, 2022, Ms. Puche received an increase in base salary to
$350,000 following the completion of the 2022 fiscal year and 80,000 options, vesting in equal increments over three years.
Outstanding Equity Awards as of June 30, 2023
The following table provides
information concerning outstanding equity awards held by our named executive officers as of June 30, 2023.
| Option Awards |
|
Stock Awards |
| Name |
|
Number of
Securities
Underlying
Unexercised
Options (#)
Exercisable |
|
Number of
Securities
Underlying
Unexercised
Options (#)
Unexercisable |
|
Option
Exercise
Price
($) |
|
Option
Expiration
Date |
|
Number of
Shares
or Shares of
Stock That
Have
Not
Vested
(#) |
|
Market
Value of
Shares or
Shares of
Stock
That
Have
Not
Vested
($) |
Mark R. Dybul, M.D.
Chief Executive Officer(1) |
|
|
7,563 |
|
|
|
— |
|
|
$ |
8.00 |
|
|
02/27/2028 |
|
|
— |
|
|
|
— |
|
| |
|
|
5,226 |
|
|
|
— |
|
|
$ |
5.74 |
|
|
09/18/2028 |
|
|
— |
|
|
|
— |
|
| |
|
|
300,000 |
|
|
|
— |
|
|
$ |
6.50 |
|
|
11/21/2028 |
|
|
— |
|
|
|
— |
|
| |
|
|
450,000 |
|
|
|
— |
|
|
$ |
8.00 |
|
|
06/11/2030 |
|
|
— |
|
|
|
— |
|
| |
|
|
666,666 |
|
|
|
1,333,334 |
|
|
$ |
4.57 |
|
|
07/19/2031 |
|
|
— |
|
|
|
— |
|
| |
|
|
— |
|
|
|
350,000 |
|
|
$ |
2.60 |
|
|
08/25/2032 |
|
|
— |
|
|
|
— |
|
| Francois Binette, Chief Operating Officer |
|
|
65,000 |
|
|
|
— |
|
|
$ |
8.40 |
|
|
2/22/2032 |
|
|
— |
|
|
|
— |
|
| |
|
|
39,000 |
|
|
|
26,000 |
|
|
$ |
2.38 |
|
|
07/22/2032 |
|
|
— |
|
|
|
— |
|
| |
|
|
— |
|
|
|
40,000 |
|
|
$ |
2.15 |
|
|
10/18/2032 |
|
|
— |
|
|
|
— |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Luisa Puche
Chief Financial Officer |
|
|
60,000 |
|
|
|
— |
|
|
$ |
6.15 |
|
|
06/06/2029 |
|
|
— |
|
|
|
— |
|
| |
|
|
20,000 |
|
|
|
40,000 |
|
|
$ |
8.58 |
|
|
10/26/2031 |
|
|
— |
|
|
|
— |
|
| |
|
|
75,000 |
|
|
|
— |
|
|
$ |
2.38 |
|
|
07/22/2032 |
|
|
— |
|
|
|
— |
|
| |
|
|
— |
|
|
|
80,000 |
|
|
$ |
2.15 |
|
|
10/18/2032 |
|
|
— |
|
|
|
— |
|
| (1) The
performance-based options awarded to Mr. Dybul in the fiscal year ended June 30, 2022, have been completely forfeited as of June 30,
2023. |
Board Compensation
The table below sets forth
the compensation earned by directors, all of whom are non-employees for services during the fiscal year ended June 30, 2023:
| Name | |
Fees Earned
or Paid in Cash
($) | |
Stock Awards ($) | |
Option Awards
($) (1) | |
All Other Compensation
($) | |
Total
($) |
| | |
| |
| |
| |
| |
|
| René Sindlev | |
$ | 100,000 | | |
$ | — | | |
$ | 53,707 | | |
$ | — | | |
$ | 153,707 | |
| James Sapirstein | |
| 77,500 | | |
| — | | |
| 56,121 | | |
| — | | |
| 133,621 | |
| Carol Brosgart | |
| 69,000 | | |
| — | | |
| 55,706 | | |
| — | | |
| 124,706 | |
| Gregg Alton | |
| 77,500 | | |
| — | | |
| 55,706 | | |
| — | | |
| 133,206 | |
| Henrik Grønfeldt-Sørensen | |
| 60,000 | | |
| — | | |
| 55,091 | | |
| — | | |
| 115,091 | |
| Jayne McNicol | |
| 75,000 | | |
| — | | |
| 56,250 | | |
| — | | |
| 131,250 | |
| Total | |
$ | 459,000 | | |
$ | — | | |
$ | 332,581 | | |
$ | — | | |
$ | 791,581 | |
| (1) |
The amounts shown are not intended to reflect the value actually
received by the directors. Instead, the amounts shown are the total fair value of option awards granted in fiscal 2023 for financial
statement reporting purposes, as determined pursuant to Financial Accounting Standards Board Accounting Standards Codification Topic
718 or ASC Topic 718. These values are amortized as equity compensation expenses over the vesting period of the grants. |
Narrative to Director’s Compensation Table
Our director compensation
program reflects competitive practices for a NASDAQ listed company. The resulting compensation package for our directors and for committee
service (for non-employee members) as of the date hereof is set forth in the table below. In addition, our directors are awarded annual options
to purchase common stock valued at $75,000.
| Compensation
Element | |
Value |
| Retainer-Board Chair | |
$ | 100,000 | |
| Retainer-Board Members | |
$ | 60,000 | |
| Audit Committee Chair Fee | |
$ | 15,000 | |
| Compensation Committee Chair Fee | |
$ | 10,000 | |
| Nominating Committee Chair Fee | |
$ | 10,000 | |
| Audit Committee Member Fee | |
$ | 7,500 | |
| Compensation Committee Member Fee | |
$ | 5,000 | |
| Nominating Committee Member Fee | |
$ | 4,000 | |
Item 12. Security Ownership of Certain Beneficial
Owners and Management and Related Stockholder Matters
The
following sets forth information regarding the beneficial ownership of our common stock as of October 24, 2023 by:
| |
● |
each person to be known by us to be the beneficial owner of more
than 5% of our common stock; |
| |
● |
each of our named executive officers; |
| |
● |
each of our directors; and |
| |
● |
all of our current executive officers and directors as a group.
|
Beneficial
ownership of the Common Stock is determined in accordance with the rules of the SEC and includes any shares of Common Stock over which
a person exercises sole or shared voting or investment power, or of which a person has a right to acquire ownership at any time within
60 days. Except as otherwise indicated, we believe that the persons named in this table have sole voting and investment power with respect
to all shares of Common Stock held by them. Applicable percentage ownership in the following table is based on 66,698,144 shares of Common
Stock outstanding as of October 24, 2023, excluding 6,353,352 shares of Common Stock issuable only upon the exercise of warrants by other
warrant holders plus any securities that the individuals included in this table have the right to acquire within 60 days of October 24,
2023.
To
our knowledge, except as indicated in the footnotes to this table and pursuant to applicable community property laws, the persons named
in the table have sole voting and investment power with respect to all shares of Common Stock beneficially owned by them. Unless indicated
otherwise, the address for the beneficial holders is c/o Renovaro BioSciences Inc. 2080 Century Park E, Suite 906, Los Angeles,
CA, U.S.A.
| |
|
Renovaro BioSciences
Inc . |
| Name of Beneficial Owner |
|
Number of Common Shares |
|
% Common Shares
Ownership |
| |
|
|
|
|
| Directors/Officers: |
|
|
|
|
|
|
|
|
| Renè Sindlev, Chairman of
the Board (1) |
|
|
14,945,971 |
|
|
|
21.59 |
% |
| Mark Dybul, Chief Executive Officer (2) |
|
|
2,279,271 |
|
|
|
3.31 |
% |
| Luisa Puche, Chief Financial Officer (3) |
|
|
217,933 |
|
|
|
* |
% |
| Francois Binette, Chief Operating Officer (4) |
|
|
143,334 |
|
|
|
* |
% |
| Carol Brosgart, Director(5) |
|
|
50,507 |
|
|
|
* |
% |
| Gregg Alton, Director (6) |
|
|
50,507 |
|
|
|
* |
% |
| James Sapirstein, Director (7) |
|
|
85,895 |
|
|
|
* |
% |
| Jayne McNicol, Director (8) |
|
|
43,390 |
|
|
|
* |
% |
| Henrik Grønfeldt-Sørensen, Director
(9) |
|
|
136,889 |
|
|
|
* |
% |
| Leni Boeren, Director |
|
|
— |
|
|
|
* |
% |
| Ruud Hendrick |
|
|
— |
|
|
|
* |
% |
| Avram Miller (10) |
|
|
1,000,000 |
|
|
|
1.50 |
% |
| Directors/Officers Total (9 persons): |
|
|
18,953,697 |
|
|
|
26.29 |
% |
| 5% Shareholders who are not Directors
or Officers: |
|
|
|
|
|
|
|
|
| RS Bio ApS |
|
|
14,866,223 |
|
|
|
21.72 |
% |
| Serhat Gümrükcü (11) |
|
|
12,438,431 |
|
|
|
18.65 |
% |
| Anderson Wittekind (12) |
|
|
6,467,945 |
|
|
|
9.70 |
% |
| Paseco ApS (13) |
|
|
11,157,446 |
|
|
|
15.95 |
% |
| * |
Indicates less than 1%. |
| (1) |
Includes 12,432,338 shares of Common Stock, 70,126 of Series A Convertible
Preferred Stock that are presently convertible into 701,260 shares of Common Stock, and 1,732,625 exercisable warrants owned of record
by RS Bio ApS, a Danish entity, and options to purchase 79,748 shares of Common Stock exercisable within 60 days of October 24, 2023,
owned of record by Mr. Sindlev. Mr. Sindlev, our Chairman of the Board, holds the sole voting and disposition power of the shares
owned by RS Bio ApS. |
| (2) |
Includes 66,481 shares of Common Stock and options to purchase 2,212,790
shares of Common Stock exercisable within 60 days of October 24, 2023. |
| (3) |
Includes 16,266 shares of Common Stock and options to purchase 201,667
shares of Common Stock exercisable within 60 days of October 24, 2023. |
| (4) |
Includes 143,334 options to purchase shares of Common Stock exercisable
within 60 days of October 24, 2023. |
| (5) |
Represents options to purchase 50,507 shares of Common Stock exercisable
within 60 days of October 24, 2023. |
| (6) |
Represents options to purchase 50,507 shares of Common Stock exercisable
within 60 days of October 24, 2023. |
| (7) |
Represents options to purchase 85,895 shares of Common Stock exercisable
within 60 days of October 24, 2023. |
| (8) |
Represents options to purchase 43,390 shares of Common Stock exercisable
within 60 days of October 24, 2023. |
| (9) |
Includes 50,000 shares of Common Stock and options to purchase 86,889
shares of Common Stock exercisable within 60 days of October 24, 2023. Mr. Grønfeldt-Sørensen, our Director, holds
the sole voting and disposition power of the shares owned by Greenfield Holding ApS. Excludes 14,866,223 shares of Common Stock voting
shares owned of record by RS Bio ApS, a Danish entity, of which Mr. Grønfeldt-Sørensen is an officer but over which
he exercises no voting or disposition power. Mr. Sindlev holds the sole voting and disposition power of the shares owned by RS Bio
ApS. |
| (10) |
On October 10, 2023, Mr. Miller entered into an Advisory Agreement,
pursuant to which the Company issued Mr. Miller 1,000,000 shares of restricted stock, 166,667
of which will vest in 2024, 444,444 will vest in 2025, and 388,889 will vest in 2026, subject to Mr. Miller’s continued service
through each applicable vesting date. |
| (11) |
Consists of 12,438,431 shares owned by Gumrukcu. |
| (12) |
Consists of (a) 3,615,757 shares owned by Wittekind; (b) 1,313,499
shares owned by Weird Science LLC (“Weird Science”); (c) 633,921 shares owned by the William Anderson Wittekind 2020
Annuity Trust, a grantor retained annuity trust of which Wittekind is the sole trustee (the “Wittekind 2020 Annuity Trust”);
(d) 450,568 shares owned by the Dybul 2020 Angel Annuity Trust, a grantor retained annuity trust of which Wittekind is the sole trustee
(the “Dybul 2020 Annuity Trust”); (e) 50,000 shares owned by the Ty Mabry 2021 Annuity Trust, a grantor retained annuity
trust of which Wittekind is sole trustee (the “Mabry 2021 Annuity Trust”); (f) 366,079 shares owned by the William
Anderson Wittekind 2021 Annuity Trust, a grantor retained annuity trust of which Wittekind is the sole trustee (the “Wittekind
2021 Annuity Trust”, and, together with the Wittekind 2020 Annuity Trust, the Dybul 2020 Annuity Trust and the Mabry 2021 Annuity
Trust, the “Trusts”); and (g) 88,121 shares owned by Wittekind and Serhat Gumrukcu, Wittekind’s spouse, as joint
tenants with a right of survivorship. In his capacity as the sole manager of Weird Science, Wittekind has sole voting and sole dispositive
power over the shares owned by Weird Science. In his capacity as the sole trustee of the Trusts, Wittekind has sole voting power
and sole dispositive power over the shares owned by the Trusts. |
| (13) |
Includes 4,462,292 shares of Common Stock, (ii) 343,619 shares of
Series A Convertible Preferred Stock convertible into 3,436,190 shares of Common Stock, and (iii) warrants presently exercisable
into 3,258,964 shares of Common Stock. |
Equity Incentive Plan Information
The
following table provides information, as of June 30, 2023, regarding the number of shares of Company common stock that may be issued
pursuant to our 2014 Equity Incentive Plan and 2019 Equity Incentive Plan.
| Plan
Category | |
Number of securities to be issued
upon exercise of outstanding options, warrants and rights | |
Weighted average exercise price
of outstanding options, warrants and rights | |
Number of securities remaining available
for future issuance under equity compensation plans |
| Equity compensation plans approved by
security holders: | |
| 4,751,211 | | |
$ | 4.62 | | |
| 2,292,515 | (1) |
| Equity compensation plans not approved by security
holders | |
| — | | |
| — | | |
| — | |
| Total | |
| 4,751,211 | | |
$ | 4.62 | | |
| 2,292,515 | (1) |
| (1) |
On February 6, 2014, the Board adopted the Company’s 2014
Equity Incentive Plan (the “2014 Plan”), and the Company had reserved 1,206,000 shares of Common Stock for issuance in
accordance with the terms of the Plan. On October 30, 2019, the Board approved and on October 31, 2019, the Company’s stockholders
adopted the Company’s 2019 Equity Incentive Plan (the “2019 Plan”), which became effective on December 12, 2019
(the “Effective Date”) and replaced the 2014 Plan. The 2019 Plan included a reserve of (1) 6,000,000 new shares, (2)
the number of shares available under the 2014 Plan for the grant of awards as of the Effective Date, and (3) shares underlying outstanding
awards granted under the 2014 Plan that, after the Effective Date, expire or are terminated, surrendered, or forfeited for any reason
without the issuance of shares. The remaining shares available for grant related to the 2014 Plan was 655,769. As of the Effective
Date, this amount, along with the new 6,000,000 shares, totaled 6,655,769 shares available for grant immediately after the Effective
Date. After June 30, 2023, the Board and the Company’s stockholders approved the Company’s 2023 Equity Incentive Plan.
|
Item 13. Certain Relationships and Related Transactions
and Director Independence
Transactions with Related
Persons
Consulting Agreements
- On July 9, 2018, the Company entered into a consulting agreement with G-Tech Bio, LLC, a California limited liability company (“G-Tech”)
to assist the Company with the development of the gene therapy and cell therapy modalities for the prevention, treatment,
and amelioration of HIV in
humans, and with the development of a genetically enhanced Dendritic Cell for use as a wide spectrum platform for various diseases (including
but not limited to cancers and infectious diseases) (the “G-Tech Agreement”). G-Tech was entitled to consulting fees
for 20 months with a monthly consulting fee of not greater than $130,000 per month. Upon the completion of the 20 months, a monthly consulting
fee of $25,000 continued for scientific consulting and knowledge transfer on existing HIV experiments until the services were no longer
being rendered or the G-Tech Agreement is terminated. G Tech is controlled by certain members of Weird Science. For the years ended June
30, 2023, and 2022, zero and $275,000, respectively, was charged to research and development expenses related to this consulting agreement.
As of May 25, 2022, the consultant was no longer able to render services.
On January 31, 2020, the Company
entered into a Statement of Work and License Agreement (the “HBV License Agreement”) by and among the Company, and G-Tech,
and G Health Research Foundation, a not for profit entity organized under the laws of California doing business as Seraph Research Institute
(“SRI”) (collectively the “Licensors”), whereby the Company acquired a perpetual, sublicensable, exclusive license
(the “HBV License”) for a treatment under development (the “Treatment”) aimed to treat Hepatitis B Virus (HBV)
infections.
The HBV License Agreement
states that in consideration for the HBV License, the Company shall provide cash funding for research costs and equipment and certain
other in-kind funding related to the Treatment over a 24 month period, and provides for an up-front payment of $1.2 million within 7
days of January 31, 2020, along with additional payments upon the occurrence of certain benchmarks in the development of the technology
set forth in the HBV License Agreement, in each case subject to the terms of the HBV License Agreement. Additionally, the HBV License
Agreement provides for cooperation related to the development of intellectual property related to the Treatment and for a 2% royalty
to G-Tech on any net sales that may occur under the HBV License. On February 6, 2020, the Company paid the $1.2 million up-front payment.
The HBV License Agreement contains customary representations, warranties, and covenants of the parties with respect to the development
of the Treatment and the HBV License.
The cash funding for research
costs pursuant to the HBV License Agreement consisted of monthly payments amounting to $144,500 that covered scientific staffing resources
to complete the project as well as periodic payments for materials and equipment needed to complete the project. There were no payments
made after January 31, 2022. During the years ended June 30, 2023, and 2022, the Company paid a total of zero and $1,011,500, respectively,
for scientific staffing resources, R&D and IND Enabling studies. During the year ended June 30, 2022, the Company paid $1,500,000
in August 2021 for the milestone completion of a Pre-Investigational New Drug (IND) process following receipt of written comments in
accordance the HBV License Agreement. The Company has filed a claim against the Licensors, which includes certain payments it made related
to this license.
On April 18,
2021, the Company entered into a Statement of Work and License Agreement (the “License Agreement”), by and among the Company,
and G Tech and SRI (collectively, the “Licensors”), whereby the Company acquired a perpetual sublicensable, exclusive license
(the “Development License”) to research, develop, and commercialize certain formulations which are aimed at preventing and
treating pan-coronavirus or the potential combination of the pan-coronavirus and pan-influenza, including the SARS-coronavirus that causes
COVID-19 and pan-influenza (the “Prevention and Treatment”).
The License Agreement was
entered into pursuant to the existing Framework Agreement between the parties dated November 15, 2019. The License Agreement states that
in consideration for the Development License, the Company shall provide cash funding for research costs and equipment and certain other
in-kind funding related to the Prevention and Treatment over a 24-month period. Additionally, the License Agreement provides for an up-front
payment of $10,000,000 and a $760,000 payment for expenditures to date prior to the effective date related to research towards the Prevention
and Treatment within 60 days of April 18, 2021. The License Agreement provides for additional payments upon the occurrence of certain
benchmarks in the development of the technology set forth in the License Agreement, in each case subject to the terms of the License
Agreement.
The License Agreement provides
for cooperation related to the development of intellectual property related to the Prevention and Treatment and for a 3% royalty to G
Tech on any net sales that may occur under the License Agreement. For the years ended June 30, 2023, and June 30, 2022, the Company paid
zero and $150,000 related to the Prevention and Treatment research. The Company is no longer pursuing any product candidates that relate
to this license. The Company has filed a claim against the Licensors to recover all monies it paid related to this license.
On August 25, 2021, the Company
entered into an ALC Patent License and Research Funding Agreement in the HIV Field (the”ALC License Agreement”) with Dr.
Gümrükcü and SRI (collectively, the “Licensors”) whereby the Licensors granted the Company an exclusive, worldwide,
perpetual, fully paid-up, royalty-free license, with the right to sublicense, the proprietary technology subject to a U.S. patent application,
to make, use, offer to sell, sell or import products for use solely for the prevention, treatment, amelioration of or therapy exclusively
for HIV in humans, and research and development exclusively relating to HIV in humans; provided the Licensors retained the right to conduct
HIV research in the field. Pursuant to the ALC License Agreement, the Company granted a non-exclusive license back to the Licensors,
under any patents or other intellectual property owned or controlled by the Company, to the extent arising from the ALC License, to make,
use, offer to sell, sell or import products for use in the diagnosis, prevention, treatment, amelioration or therapy of any (i) HIV Comorbidities
and (ii) any other diseases or conditions outside the HIV Field. The Company made an initial payment to SRI of $600,000 and agreed to
fund future HIV research conducted by the Licensors, as mutually agreed to by the parties. On September 10, 2021, pursuant to the ALC
License Agreement, the Company paid the initial payment of $600,000.
G-Tech and SRI are controlled
by Dr. Serhat Gümrükcü and Anderson Wittekind, shareholders of the Company.
Advisory Agreement with Avram Miller
On October 10, 2023, Avram Miller, a director,
entered into an advisory agreement with the Company (the “Advisory Agreement”), pursuant to which Mr. Miller will provide
advice to the Board and the Company on various matters including strategic opportunities, capital allocation, business development, minority
investments, licensing arrangements, among others. As compensation for these services, on October 23, 2023, the Company issued Mr. Miller
1,000,000 shares of restricted stock, 166,667 of which will vest in 2024, 444,444 will vest in 2025, and 388,889 will vest in 2026, subject
to Mr. Miller’s continued service through each applicable vesting date.
Compensation of Named Executive Officers
and Directors
For information regarding compensation of named
executive officers and directors, please see “Item 11. Executive Compensation.”
Except as otherwise indicated
herein, there have been no other related party transactions, or any other transactions or relationships required to be disclosed pursuant
to Item 404 and Item 407(a) of Regulation S-K.
Director Independence
The NASDAQ listing standards
provide that an independent director is one who the Board affirmatively determines is free of any relationship that would interfere with
that individual’s exercise of independent judgment. The Board has determined that Mr. Sapirstein, Mr. Alton, Dr. Brosgart, Ms.
McNicol, Ms. Boeren and Mr. Hendriks are each independent as defined in the listing standards of NASDAQ. In making such determinations,
the Board has concluded that none of these directors has an employment, business, family, or other relationship, which, in the opinion
of our Board, would interfere with the exercise of independent judgment in carrying out the responsibilities of a director.
Item 14. Principal Accounting Fees and Services
The following information
sets forth fees billed to us by Sadler, Gibb & Associates, LLC (“Sadler”) during the years ended June 30, 2023, and June
30, 2022, for (i) services rendered for the audit of our annual financial statements and the review of our quarterly financial statements
(“Audit Fees”), (ii) services that were reasonably related to the performance of the audit or review of our financial statements
and that are not reported as Audit Fees (“Audit-Related Fees”), (iii) services rendered in connection with tax compliance,
tax advice and tax planning (“Tax Fees”), and (iv) services rendered by Sadler other than the foregoing (“Other Fees”).
Audit Fees
For the fiscal year ended
June 30, 2023, Sadler billed an aggregate of $170,000 in Audit Fees. For the fiscal year ended June 30, 2022, Sadler billed an aggregate
of $656,749 in Audit Fees.
Audit-Related Fees
For the fiscal year ended
June 30, 2023, Sadler billed an aggregate of $1,500 in Audit-Related Fees. For the fiscal year ended June 30, 2022, Sadler billed an
aggregate of $13,500 in Audit-Related Fees.
Tax and Other Fees
None.
Audit Committee’s Pre-Approval Process
The Audit Committee, which
has been in place since March 28, 2018, pre-approves all audit and permissible non-audit services on a case-by-case basis. In its review
of non-audit services, the Audit Committee considers whether the engagement could compromise the independence of our independent registered
public accounting firm, and whether it is in our best interests to engage our independent registered public accounting firm to perform
the services. The Audit Committee does not delegate its responsibilities to pre-approve services performed by our independent registered
public accounting firm to management. The Audit Committee may delegate, and has delegated, pre-approval authority to one or more of its
members. The member or members to whom such authority is delegated must report any pre-approval decisions to the Audit Committee at its
next scheduled meeting.
During the year ended June
30, 2023, all services performed by Sadler were pre-approved by the Audit Committee.
Item 15. Exhibits and Financial Statement Schedules
| Exhibit No. |
|
Description |
|
Incorporated
by Reference |
| 2.1 |
|
Stock
Purchase Agreement, dated as of September 28, 2023, by and among Renovaro Biosciences Inc., GEDi Cube Intl Ltd., Yalla Yalla Ltd.,
in its capacity as Sellers’ Representative, and the Sellers party thereto |
|
Incorporated
by reference to exhibit 2.1 to the Company’s Form 8-K filed with the SEC on September 29, 2023 |
| |
|
|
|
|
| 3.1 |
|
Certificate
of Incorporation, as amended |
|
Incorporated
herein by reference to Exhibit 3.1 to the Company’s Form 10-K filed with the SEC on October 2, 2023. |
| |
|
|
|
|
| 3.2 |
|
Bylaws |
|
Incorporated
herein by reference to exhibit to the Company’s Quarterly Report on Form 10-Q filed with the SEC on May 16, 2019. |
| |
|
|
|
|
| 4.1 |
|
Promissory
Note dated March 30, 2020 issued to Paseco ApS |
|
Incorporated
herein by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the SEC on March 31, 2020. |
| |
|
|
|
|
| 4.2 |
|
Amendment
No.2 to Promissory Note, dated May 17, 2022 |
|
Incorporated
herein by reference to Exhibit 4.3 to the Company’s Form 10-K filed with the SEC on February 27, 2023. |
| |
|
|
|
|
| 4.3 |
|
Amendment
No.3 to Promissory Note, effective December 30, 2022 |
|
Incorporated
herein by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the SEC on February 23, 2023. |
| |
|
|
|
|
| 4.4 |
|
Amendment
No. 4 to Promissory Note, effective July 31, 2023 |
|
Incorporated
by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the SEC on August 7, 2023 |
| |
|
|
|
|
| 4.5 |
|
Description
of Securities |
|
Incorporated
herein by reference to Exhibit 4.1 to the Company’s Form 10-K filed with the SEC on September 30, 2020. |
| |
|
|
|
|
| 4.6 |
|
Form
of Warrant |
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Form 8-K filed with the SEC on April 3, 2023 |
| |
|
|
|
|
| 4.7 |
|
Form
of Warrant |
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Form 8-K filed with the SEC on August 7, 2023 |
| 4.8 |
|
Form
of 5% Original Issue Discount Convertible Promissory Note |
|
Incorporated
by reference to Exhibit 4.1 to the Company’s Form 8-K filed with the SEC on October 10, 2023 |
| |
|
|
|
|
| 10.1 |
|
Form
of License Agreement between Weird Science, LLC and Renovaro Biopharma, Inc. |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on January 17, 2018. |
| |
|
|
|
|
| 10.2 |
|
2019
Equity Incentive Plan |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed with the SEC on February 10, 2020. |
| |
|
|
|
|
| 10.3 |
|
Statement
of Work and License Agreement by and among G-Tech Bio, LLC, the Company and G Health Research Foundation |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the SEC on February 3, 2020. |
| |
|
|
|
|
| 10.4 |
|
Note
Purchase Agreement |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the SEC on March 31, 2020. |
| |
|
|
|
|
| 10.5 |
|
General
Office Lease by and between the Registrant and Century City Medical Plaza Land Co., Inc. dated June 19, 2018 |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K, filed with the SEC on June 25, 2018. |
| |
|
|
|
|
| 10.6 |
|
Offer
Letter from the Company to Luisa Puche, dated December 28, 2018 |
|
Incorporated
herein by reference to Exhibit 10.11 to the Company’s Annual Report on Form 10-K filed with the SEC on September 30, 2019. |
| |
|
|
|
|
| 10.7 |
|
Employment
Agreement, dated August 11, 2021, by and between the Company and Dr. Mark Dybul |
|
Incorporated
herein by reference to Exhibit to 10.1 the Company’s Current Report on Form 8-K/A, filed with the SEC on August 16, 2021. |
| |
|
|
|
|
| 10.8 |
|
Amendment
to Employment Agreement between Mark Dybul, M.D. and the Company, dated December 12, 2022 |
|
Incorporated
herein by reference to Exhibit to 10.1 the Company’s Current Report on Form 8-K, filed with the SEC on December 16, 2022. |
| |
|
|
|
|
| 10.9 |
|
Security
Agreement, effective December 30, 2022, by and between the Company and Paseco ApS |
|
Incorporated
herein by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the SEC on February 23, 2023. |
| |
|
|
|
|
| 10.10 |
|
Purchase
Agreement, dated June 20, 2023, by and between the Company and Lincoln Park Capital Fund, LLC |
|
Incorporated
herein by reference to Exhibit 10.1 to the Company’s Form 8-K filed with the SEC on June 27, 2023 |
| |
|
|
|
|
| 10.11 |
|
Registration
Rights Agreement, dated June 20, 2023, by and between the Company and Lincoln Park Capital Fund, LLC |
|
Incorporated
herein by reference to Exhibit 10.2 to the Company’s Form 8-K filed with the SEC on June 27, 2023 |
| * |
|
Provided herewith. |
| ** |
|
Furnished herewith. |
ITEM 16. FORM 10-K SUMMARY
Not Applicable.
SIGNATURES
Pursuant to the requirements of
Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
| Date: October 30, 2023 |
RENOVARO BIOSCIENCES INC. |
| |
|
|
| |
By: |
/s/ Mark Dybul |
| |
|
Mark Dybul |
| |
|
Chief Executive Officer |
| |
|
(Principal Executive Officer) |
| |
|
|
| |
By: |
/s/ Luisa Puche |
| |
|
Luisa Puche |
| |
|
Chief Financial Officer |
| |
|
(Principal Financial and Accounting Officer) |
24
Exhibit 10.12
RENOVARO
BIOSCIENCES INC.
2023
EQUITY INCENTIVE PLAN
Renovaro
BioSciences Inc. (the “Company”) sets forth herein the terms and conditions of its 2023 Equity Incentive Plan (the
“Plan”), as follows:
The
Plan is intended to enhance the ability of the Company and its Affiliates to attract and retain highly-qualified employees, Consultants
and Non-Employee Directors, and to motivate such employees, Consultants, and Non-Employee Directors to serve the Company and its Affiliates
and to expend maximum effort to improve the business results and earnings of the Company, by providing to such persons an opportunity
to acquire or increase a direct proprietary interest in the operations and future success of the Company. To this end, the Plan provides
for the grant of stock options, stock appreciation rights, restricted stock, RSUs, other stock-based awards, and cash awards. Any of
these awards may, but need not, be made as performance incentives to reward attainment of performance goals in accordance with the terms
and conditions hereof. Upon becoming effective, the Plan replaces, and no further awards may be made under, the Prior Plans. Stock options
granted under the Plan may be non-qualified stock options or incentive options, as provided herein.
For
purposes of interpreting the Plan and related documents (including Award Agreements), the following definitions shall apply:
“Acquiror”
shall have the meaning set forth in Section 15.3(ii).
“Affiliate”
means any company or other trade or business that “controls,” is “controlled by,” or is “under common control
with,” the Company within the meaning of Rule 405 of Regulation C under the Securities Act, including, without limitation, any
Subsidiary.
“Award”
means a grant, under the Plan, of an Option, SAR, Restricted Shares, RSUs, Other Stock-based Award or cash award.
“Award
Agreement” means a written agreement (including an agreement transmitted electronically) between the Company and a Grantee,
or notice from the Company or an Affiliate to a Grantee that evidences and sets out the terms and conditions of an Award.
“Beneficial
Owner” shall have the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating
the beneficial ownership of any particular Person, such Person shall be deemed to have beneficial ownership of all securities that such
Person has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable
only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have corresponding meanings.
“Board”
means the Board of Directors of the Company.
“Cause”
shall be defined as that term is defined in the Grantee’s offer letter or other applicable employment agreement; or, if there is
no such definition, “Cause” means, as determined by the Company and unless otherwise provided in an applicable Award
Agreement: (i) the Grantee’s willful failure to perform the Grantee’s duties and responsibilities; (ii) the Grantee’s
commission of any act of fraud, embezzlement, dishonesty or willful misconduct; (iii) unauthorized use or disclosure by the Grantee of
any proprietary information of the Company or any Affiliate; or (iv) Grantee’s willful breach of any of the Grantee’s obligations
under any agreement with the Company or any Affiliate. The Committee, in its absolute discretion, shall determine the effect of all matters
and questions relating to the existence of Cause.
“Change
in Control” shall mean, in the case of a particular Award, unless the applicable Award Agreement states otherwise or contains
a different definition of “Change in Control,” the occurrence of any of the following events:
(i) An
acquisition (whether directly from the Company or otherwise) of any voting securities of the Company (the “Voting Securities”)
by any “Person” (as the term person is used for purposes of Section 13(d) or 14(d) of the Securities and Exchange Act of
1934, as amended (the “Exchange Act”)), immediately after which such Person has “Beneficial Ownership”
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of more than fifty percent (50%) of the combined voting power of
the Company’s then outstanding Voting Securities.
(ii) Consummation
of any definitive agreement, the consummation of which would cause to occur:
(A) A
merger, consolidation or reorganization involving the Company, where either or both of the events described in clause (i) above would
be the result;
(B) A
liquidation or dissolution of or appointment of a receiver, rehabilitator, conservator or similar person for, or the filing by a third
party of an involuntary bankruptcy against, the Company; or
(C) An
agreement for the sale or other disposition of all or substantially all of the assets of the Company to any Person (other than a transfer
to an Affiliate).
Solely
to the extent required by Section 409A, an event described above shall not constitute a Change in Control for purposes of the payment
(but not vesting) terms and conditions of any Award that is determined to be subject to Section 409A unless such event also constitutes
a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the Company’s
assets within the meaning of Section 409A (a “409A Change in Control Event”); provided, however, that if an event
described in clause (ii) above would be a 409A Change in Control Event upon consummation of the event described therein rather than upon
approval by the Board, then the consummation of such event rather than approval by the Board shall constitute a Change in Control.
“Code”
means the Internal Revenue Code of 1986, as it may be amended from time to time. Any reference to a section of the Code shall be deemed
to include a reference to any valid and binding governmental regulations, court decisions and other regulatory and judicial authority
issued or promulgated thereunder.
“Committee”
means a committee of members of the Board appointed by the Board to administer the Plan in accordance with Section 3. The Board
shall cause the Committee to satisfy the applicable requirements of any stock exchange on which the Common Stock may then be listed.
“Company”
shall have the meaning set forth in the preamble.
“Common
Stock” means the common stock of the Company, par value $0.0001 per share.
“Consultant”
means any person, other than an employee or Non-Employee Director, engaged by the Company or any Affiliate to render bona fide services
to such entity, including as an advisor, and who qualifies as a consultant or advisor under Rule 701 of the Securities Act (during any
period in which the Company is not a public company subject to the reporting requirements of the Exchange Act) or Form S-8 (during any
period in which the Company is a public company subject to the reporting requirements of the Exchange Act).
“Corporate
Transaction” means a recapitalization, reorganization, merger, consolidation, combination, exchange, consolidation, sale of
all or substantially all of the Company’s assets, or the acquisition of assets or stock of another entity by the Company, or other
corporate transaction involving the Company or any of its Affiliates.
“Disability”
means “permanent and total disability” as set forth in Code Section 22(e)(3).
“Effective
Date” means July 21, 2023, the date the Plan was approved by the Company’s stockholders.
“Exchange
Act” means the Securities Exchange Act of 1934, as not in effect or as hereafter amended.
“Fair
Market Value” of a Share as of a particular date shall mean (i) if the Common Stock (A) is listed on a national securities
exchange or (B) is not listed on a national securities exchange, but is quoted by the OTC Markets Group, Inc. (www.otcmarkets.com) or
any successor or alternative recognized over-the-counter market or another inter-dealer quotation system, on a last sale basis, the closing
or last price of the Common Stock reported on such national securities exchange or other inter-dealer quotation system for the applicable
date, or if the applicable date is not a trading day, the trading day immediately preceding the applicable date; or (ii) if the Common
Stock is not listed on a national securities exchange or quoted in an inter-dealer quotation system on a last sale basis, the amount
determined by the Committee to be the fair market value of the Common Stock in good faith in its sole discretion.
“Family
Member” means a person who is a spouse, former spouse, child, stepchild, grandchild, parent, stepparent, grandparent, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law, brother, sister, brother-in-law, or sister-in-law, including adoptive
relationships, of the applicable individual, any person sharing the applicable individual’s household (other than a tenant or employee),
a trust in which any one or more of these persons have more than 50% of the beneficial interest, a foundation in which any one or more
of these persons (or the applicable individual) control the management of assets, and any other entity in which one or more of these
persons (or the applicable individual) own more than 50% of the voting interests.
“GAAP”
means U.S. Generally Accepted Accounting Principles.
“Grant
Date” means, as determined by the Board, the latest to occur of (i) the date as of which the Board approves an Award,
(ii) the date on which the recipient of an Award first becomes eligible to receive an Award under Section 6, or (iii) such
other date as may be specified by the Board in the Award Agreement.
“Grantee”
means a person who receives or holds an Award under the Plan.
“Incentive
Stock Option” means an Option that is an “incentive stock option” within the meaning of Code Section 422.
“Issued
Shares” means, collectively, all outstanding Shares issued pursuant to Awards (including without limitation, outstanding Restricted
Shares prior to or after vesting and shares issued in connection with the exercise of an Option or SAR or the settlement of an RSU).
“Non-Employee
Director” means a member of the Board who is not an employee.
“Nonstatutory
Stock Option” means an Option that is not an Incentive Stock Option.
“Option”
means an option to purchase one or more Shares under the Plan, including an Incentive Stock Option and a Nonstatutory Stock Option.
“Option
Price” means the exercise price for each Share subject to an Option.
“Other
Stock-based Award” means Awards consisting of Share units, or other Awards, valued in whole or in part by reference to, or
otherwise based on, Common Stock, other than Options, SARs, Restricted Shares, and RSUs.
“Plan”
shall have the meaning set forth in the preamble.
“Prior
Plans” means the Renovaro BioSciences, Inc. 2019 Equity Incentive Plan and the Dandrit Biotech USA, Inc. 2014 Stock Incentive
Plan.
“Purchase
Price” means the purchase price for each Share under a grant of Restricted Shares.
“Restricted
Period” shall have the meaning set forth in Section 10.1.
“Restricted
Shares” means restricted Shares awarded to a Grantee under Section 10.
“RSU”
means a bookkeeping entry representing the equivalent of Shares, awarded to a Grantee under Section 10.
“SAR”
means a right granted to a Grantee under Section 9.
“SAR
Exercise Price” means the per Share exercise price of a SAR granted under Section 9.
“SEC”
means the United States Securities and Exchange Commission.
“Section 409A”
means Code Section 409A.
“Securities
Act” means the Securities Act of 1933, as now in effect or as hereafter amended.
“Separation
from Service” means the termination of the applicable Grantee’s employment with, and performance of services for, the
Company and each Affiliate. Unless otherwise determined by the Company, if a Grantee’s employment or service with the Company or
an Affiliate terminates but the Grantee continues to provide services to the Company or an Affiliate in a non-employee director capacity
or as an employee, officer, or consultant, as applicable, such change in status shall not be deemed a Separation from Service. Approved
temporary absences from employment because of illness, vacation, or leave of absence and transfers among the Company and its Affiliates
shall not be considered Separations from Service. Notwithstanding the foregoing, with respect to any Award that constitutes nonqualified
deferred compensation under Section 409A, “Separation from Service” shall mean a “separation from service” as
defined under Section 409A.
“Service
Provider” means an employee, officer, Non-Employee Director, or Consultant of the Company or an Affiliate.
“Share”
means one share of Common Stock.
“Stockholder”
means a stockholder of the Company.
“Subsidiary”
means any corporation, partnership, joint venture, affiliate, or other entity in which the Company owns more than 50% of the voting stock
or voting ownership interest, as applicable, or any other business entity designated by the Board as a Subsidiary for purposes of the
Plan.
“Substitute
Award” means any Award granted in assumption of or in substitution for an award of a company or business acquired by the Company
or an Affiliate or with which the Company or an Affiliate combines.
“Ten
Percent Stockholder” means an individual who owns more than 10% of the total combined voting power of all classes of outstanding
stock of the Company, its parent or any of its Subsidiaries. In determining stock ownership, the attribution rules of Code Section 424(d)
shall be applied.
“Termination
Date” means the date that is ten years after the Effective Date, unless the Plan is earlier terminated by the Board under Section 5.2.
| 3. | ADMINISTRATION
OF THE PLAN |
3.1.
General
The
Board shall have such powers and authorities related to the administration of the Plan as are consistent with the Company’s articles
of incorporation, bylaws and applicable law, and as further described in Section 3.3. To the extent permitted by applicable law,
the Board shall have the power and authority to delegate its powers and responsibilities hereunder to the Committee, which shall have
full authority to act in accordance with its charter (as in effect from time to time), and with respect to the authority of the Board
to act hereunder. All references to the Board shall be deemed to include a reference to the Committee, to the extent such power or responsibilities
of the Board have been delegated. The Committee shall administer the Plan; provided that the Board shall retain the right to exercise
the authority of the Committee to the extent consistent with applicable law and the applicable requirements of any securities exchange
on which the Common Stock may then be listed.
3.2. Committee
Composition
Except
as otherwise determined by the Board, the Committee shall consist solely of two or more Non-Employee Directors. The Board shall have
discretion to determine whether or not it intends to comply with the exemption requirements of SEC Rule 16b-3. However, if the Board
intends to satisfy such exemption requirements, with respect to any insider subject to Section 16 of the Exchange Act, the Committee
shall be a compensation committee of the Board that at all times consists solely of two or more Non-Employee Directors. To the extent
permitted by applicable law, the Board or the Committee may delegate its authority to grant Awards to any individual or committee of
individuals who are not Non-Employee Directors with respect to Awards that do not involve insiders within the meaning of SEC Rule 16.
To the extent that the Board delegates its authority to make Awards as provided by this Section 3.1, all references in the
Plan to the Board’s authority to make Awards and determinations with respect thereto shall be deemed to include the Board’s
delegate. Any such delegate shall serve at the pleasure of, and may be removed at any time by the Board. Nothing herein shall create
an inference that an Award is not validly granted under the Plan in the event Awards are granted under the Plan by a compensation committee
of the Board that does not at all times consist solely of two or more Non-Employee Directors.
3.3. Authority
of Board
Except
as specifically provided in Section 14 or as otherwise may be required by applicable law, regulatory requirement, or the
articles of incorporation or the bylaws of the Company, the Board shall have full power and authority to take all actions and to make
all determinations required or provided for under the Plan, any Award or any Award Agreement, and shall have full power and authority
to take all such other actions and make all such other determinations, including determinations of fact, not inconsistent with the specific
terms and conditions of the Plan that the Board deems to be necessary or appropriate to the administration of the Plan. The interpretation
and construction by the Board of the Plan, any Award, or any Award Agreement shall be final, binding, and conclusive. Without limitation,
the Board shall have full and final authority, subject to the other terms and conditions of the Plan, to:
| (i) | construe
and interpret the Plan and apply its provisions; |
| (iii) | determine
the type or types of Awards to be made to a Grantee and the applicable Grant Date; |
| (iv) | determine
the number of Shares to be subject to an Award; |
| (v) | establish
the terms and conditions of each Award (including, but not limited to, the Option Price of
any Option, the nature and duration of any restriction or condition (or provision for lapse
thereof) relating to the vesting, exercise, transfer, or forfeiture of an Award or the Shares
subject thereto, and any terms or conditions that may be necessary to qualify Options as
Incentive Stock Options); |
| (vi) | prescribe
the form of each Award Agreement; |
| (vii) | amend,
modify, or supplement the terms and conditions of any outstanding Award, including the authority,
in order to effectuate the purposes of the Plan, to modify Awards to foreign nationals or
individuals who are employed outside the United States to recognize differences in local
law, tax policy, or custom; |
| (viii) | promulgate,
amend and rescind rules and regulations relating to the administration of the Plan; |
| (ix) | to
authorize any person to execute, on behalf of the Company, any instrument required to carry
out the purposes of the Plan; and |
| (x) | to
modify the Option Price or SAR Exercise Price of any outstanding Option or SAR, provided
that if the modification effects a repricing, shareholder approval shall be required before
the repricing is effective. |
| 3.4. | Separation
from Service for Cause; Clawbacks |
| 3.4.1. | Separation
from Service for Cause |
The
Company may annul an Award if the Grantee incurs a Separation from Service for Cause.
All
awards, amounts, or benefits received or outstanding under the Plan shall be subject to clawback, cancellation, recoupment, rescission,
payback, reduction, or other similar action in accordance with any Company clawback or similar policy (“Clawback Policy”)
or any applicable law related to such actions. In addition, a Grantee may be required to repay to the Company previously paid compensation,
whether provided pursuant to the Plan or an Award Agreement in accordance with the Clawback Policy. A Grantee’s acceptance of an
Award shall be deemed to constitute the Grantee’s acknowledgement of and consent to the Company’s application, implementation,
and enforcement of any applicable Company clawback or similar policy that may apply to the Grantee, whether adopted before or after the
Effective Date and whether before or after the Grant Date of an Award, and any applicable law relating to clawback, cancellation, recoupment,
rescission, payback, or reduction of compensation, and the Grantee’s agreement that the Company may take any actions that may be
necessary to effectuate any such policy or applicable law, without further consideration or action.
The
Board may permit or require the deferral of any Award payment into a deferred compensation arrangement, subject to such rules and procedures
as it may establish and in accordance with Section 409A, which may include terms and conditions for the payment or crediting of
interest or dividend equivalents, including converting such credits into deferred units.
No
member of the Board or the Committee shall be liable for any action or determination made in good faith with respect to the Plan, any
Award, or Award Agreement.
Notwithstanding
any other term or condition of the Plan to the contrary, the Company may elect to satisfy any requirement under the Plan for the delivery
of stock certificates through the use of book-entry.
| 4. | shares
SUBJECT TO THE PLAN |
| 4.1. | Authorized
Number of Shares |
Subject
to adjustment under Section 15, the total number of Shares authorized to be awarded under the Plan shall not exceed the sum
of (i) 4,000,000 and (ii) the number of Shares available for the grant of awards as of the Effective Date under the Prior Plans. In addition,
Shares underlying any outstanding award granted under the Prior Plans that, after the Effective Date, expires, or is terminated, surrendered,
or forfeited for any reason without issuance of Shares shall be available for the grant of new Awards. As provided in Section 1,
no new awards shall be granted under the Prior Plans after the Effective Date. Shares issued under the Plan shall consist in whole or
in part of authorized but unissued Shares, treasury Shares, or Shares purchased on the open market or otherwise, all as determined by
the Company from time to time. All of the Shares available under this 4.1 shall be available for issuance under Incentive Stock Options.
Each
Share granted in connection with an Award shall be counted as one Share against the limit in Section 4.1, subject to this
Section 4.2.
| 4.2.2. | Cash-Settled
Awards |
Any
Award settled in cash shall not be counted as Shares for any purpose under the Plan.
| 4.2.3. | Expired
or Terminated Awards |
If
any Award under the Plan expires, or is terminated, surrendered, or forfeited, in whole or in part, the unissued Shares covered by such
Award shall again be available for the grant of Awards.
| 4.2.4. | Repurchased,
Surrendered, or Forfeited Awards |
If
Issued Shares are repurchased by, or are surrendered or forfeited to the Company at no more than cost, such Shares shall again be available
for the grant of Awards.
| 4.2.5. | Payment
of Option Price or Tax Withholding in Shares |
Notwithstanding
anything to the contrary contained herein: Shares subject to an Award under the Plan shall not again be made available for issuance or
delivery under the Plan if such Shares are (i) Shares tendered in payment of an Option, (ii) Shares delivered or withheld by the Company
to satisfy any tax withholding obligation, (iii) Shares covered by a Share-settled SAR or other Shares that were not issued upon the
settlement of the SAR.
In
the case of any Substitute Award, such Substitute Award shall not be counted against the number of Shares reserved under the Plan.
| 5. | EFFECTIVE
DATE, DURATION, AND AMENDMENTS |
The
Plan shall be effective as of the Effective Date, provided that it has been approved by the Stockholders. The Plan shall terminate automatically
on the ten-year anniversary of the Effective Date and may be terminated on any earlier date as provided in Section 5.2.
| 5.2. | Amendment
and Termination of the Plan |
The
Board may, at any time and from time to time, amend, suspend, or terminate the Plan as to any Awards that have not been made. An amendment
shall be contingent on approval of the Stockholders to the extent stated by the Board, required by applicable law, or required by applicable
securities exchange listing requirements. No Awards may be granted after the Termination Date. The applicable terms and conditions of
the Plan, and any terms and conditions applicable to Awards granted before the Termination Date shall survive the termination of the
Plan and continue to apply to such Awards. No amendment, suspension, or termination of the Plan shall, without the consent of the Grantee,
materially impair rights or obligations under any Award theretofore awarded.
| 6. | AWARD
ELIGIBILITY AND LIMITATIONS |
Awards
may be made to any Service Provider, as the Board may determine and designate from time to time, in its discretion, subject to Section
8.7 in the case of an Incentive Stock Option. The Board may grant an Award to a person who is reasonably expected to become a Service
Provider provided that such grant is contingent upon such person becoming a Service Provider.
Service
Providers may receive more than one Award, subject to such restrictions as are provided herein.
| 6.3. | Stand-Alone,
Additional, Tandem, and Substitute Awards |
The
Board may grant Awards either alone or in addition to, in tandem with, or in substitution or exchange for, any other Award or any award
granted under another plan of the Company, any Affiliate, or any business entity to be acquired by the Company or an Affiliate, or any
other right of a Grantee to receive payment from the Company or any Affiliate. Such additional, tandem, substitute or exchange Awards
may be granted at any time. If an Award is granted in substitution or exchange for another Award, the Board shall have the right to require
the surrender of such other Award in consideration for the grant of the new Award. Subject to Section 3.3(ix), and the requirements
of applicable law, the Board shall have the right, in its discretion, to make Awards in substitution or exchange for any other award
under another plan of the Company, any Affiliate, or any business entity to be acquired by the Company or an Affiliate. In addition,
Awards may be granted in lieu of cash compensation, including in lieu of cash amounts payable under other plans of the Company or any
Affiliate, in which the value of Shares subject to the Award is equivalent in value to the cash compensation (for example, RSUs or Restricted
Shares).
Each
Award shall be evidenced by an Award Agreement, in such form or forms as the Board shall from time to time determine. Without limiting
the foregoing, an Award Agreement may be provided in the form of a notice that provides that acceptance of the Award constitutes acceptance
of all terms and conditions of the Plan and the notice. Award Agreements granted from time to time or at the same time need not contain
similar terms and conditions but shall be consistent with the terms and conditions of the Plan. Each Award Agreement evidencing an Award
of Options shall specify whether such Options are intended to be Nonstatutory Stock Options or Incentive Stock Options, and in the absence
of such specification such options shall be deemed Nonstatutory Stock Options.
| 8. | TERMS
AND CONDITIONS OF OPTIONS |
The
Option Price of each Option shall be fixed by the Board and stated in the related Award Agreement. Each Option shall be separately designated
in the Award Agreement as either an Incentive Stock Option or Nonqualified Option. The Option Price of each Option (except those that
constitute Substitute Awards) shall be at least the Fair Market Value of a Share on the Grant Date; provided, however,
that in the event that a Grantee is a Ten Percent Stockholder as of the Grant Date, the Option Price of an Option granted to such Grantee
that is intended to be an Incentive Stock Option shall be not less than 110% of the Fair Market Value of a Share on the Grant Date. In
no case shall the Option Price of any Option be less than the par value of a Share.
Subject
to Section 8.3, each Option shall become exercisable at such times and under such terms and conditions (including, without
limitation, performance requirements) as may be determined by the Board and stated in the Award Agreement. No Option may be exercised
for a fraction of a Share. The Board may, but shall not be required to, provide for an acceleration of vesting and exercisability in
the terms of any Award Agreement upon the occurrence of a specified event.
8.3.1 General
Each
Option shall terminate, and all rights to purchase Shares thereunder shall cease, upon the expiration of the Option term determined by
the Board and stated in the Award Agreement not to exceed ten years from the Grant Date, or under such circumstances and on any date
before ten years from the Grant Date as may be set forth in the Plan or as may be fixed by the Board and stated in the related Award
Agreement; provided, however, that in the event that the Grantee is a Ten Percent Stockholder, an Option granted to such
Grantee that is intended to be an Incentive Stock Option at the Grant Date shall not be exercisable after the expiration of five years
from its Grant Date.
8.3.2 Separation
from Service
Unless
otherwise provided in an Award Agreement or in an employment agreement the terms of which have been approved by the Board, in the event
a Grantee has a Separation from Service (other than upon the Grantee’s death or Disability), the Grantee may exercise any Option
(to the extent that the Grantee was entitled to exercise such Option as of the date of Separation from Service) but only within such
period of time ending on the earlier of (i) the date three months following the Grantee’s Separation from Service or (ii) the expiration
of the term of the Option as set forth in the Award Agreement; provided that, if the Separation from Service is by the Company
for Cause or if the Grantee’s Separation from Service is due to resignation, all outstanding Options (whether or not vested) shall
immediately terminate and cease to be exercisable. If, after termination, the Grantee does not exercise the Option within the time specified
in the Award Agreement, the Option shall terminate.
8.3.3 Extension
of Termination Date
A
Grantee’s Award Agreement may also provide that if the exercise of the Option following the Grantee’s Separation from Service
for any reason would be prohibited at any time because the issuance of Shares would violate the registration requirements under the Securities
Act or any other state or federal securities law or the rules of any securities exchange or interdealer quotation system, then the Option
shall terminate on the earlier of (i) the expiration of the term of the Option in accordance with Section 8.3.1 or (ii) the expiration
of a period after the Grantee’s Separation from Service that is three months after the end of the period during which the exercise
of the Option would be in violation of such registration or other securities law requirements.
8.3.4 Disability
of Grantee
Unless
otherwise provided in an Award Agreement, in the event of a Grantee’s Separation from Service as a result of the Grantee’s
Disability, the Grantee may exercise any Option (to the extent that the Grantee was entitled to exercise such Option as of the date of
termination), but only within such period of time ending on the earlier of (i) the date 12 months following such termination or (ii)
the expiration of the term of the Option as set forth in the Award Agreement. If, after termination, the Grantee does not exercise the
Option within the time specified herein or in the Award Agreement, the Option shall terminate.
8.3.5 Death
of Grantee
Unless
otherwise provided in an Award Agreement, in the event of a Grantee’s Separation from Service as a result of the Grantee’s
death, then the Option may be exercised (to the extent the Grantee was entitled to exercise such Option as of the date of death) by the
Grantee’s estate, by a person who acquired the right to exercise the Option by bequest or inheritance or by a person designated
to exercise the Option upon the Grantee’s death, but only within the period ending on the earlier of (i) the date 12 months following
the date of death or (ii) the expiration of the term of such Option as set forth in the Award Agreement. If, after the Grantee’s
death, the Option is not exercised within the time specified herein or in the Award Agreement, the Option shall terminate.
| 8.4. | Limitations
on Exercise of Option |
Notwithstanding
any other term or condition of the Plan, in no event may any Option be exercised, in whole or in part, (i) prior to the date the Plan
is approved by the Stockholders as provided herein or (ii) after the occurrence of an event that results in termination of the Option.
An
Option that is exercisable may be exercised by the Grantee’s delivery of a notice of exercise to the Company, setting forth the
number of Shares with respect to which the Option is to be exercised, accompanied by full payment for the Shares. To be effective, notice
of exercise must be made in accordance with procedures established by the Company from time to time.
| 8.6. | Rights
of Holders of Options |
Unless
otherwise stated in the related Award Agreement, an individual holding or exercising an Option shall have none of the rights of a Stockholder
(for example, the right to receive cash or dividend payments or distributions attributable to the subject Shares or to direct the voting
of the subject Shares) until the Shares covered thereby are fully paid and issued to the Grantee. Except as provided in Section 15
or the related Award Agreement, no adjustment shall be made for dividends, distributions, or other rights for which the record date
is before the date of such issuance.
| 8.7. | Limitations
on Incentive Stock Options |
An
Option shall constitute an Incentive Stock Option only (i) if the Grantee of the Option is an employee of the Company or any Subsidiary;
(ii) to the extent specifically provided in the related Award Agreement; and (iii) to the extent that the aggregate Fair Market
Value (determined at the time the Option is granted) of the Shares with respect to which all Incentive Stock Options held by such Grantee
become exercisable for the first time during any calendar year (under the Plan and all other plans of the Grantee’s employer and
its Affiliates) does not exceed $100,000. This limitation shall be applied by taking Options into account in the order in which they
were granted. No Option shall be treated as an Incentive Stock Option unless the Plan has been approved by the Stockholders in a manner
intended to comply with the stockholder approval requirements of Code Section 422; provided that any Option intended
to be an Incentive Stock Option shall not fail to be effective solely on account of a failure to obtain such approval, but rather such
Option shall be treated as a Nonstatutory Stock Option unless and until such approval is obtained.
| 9. | TERMS
AND CONDITIONS OF STOCK APPRECIATION RIGHTS (SARs) |
A
SAR shall confer on the Grantee a right to receive, upon exercise thereof, the excess of (i) the Fair Market Value of one Share
on the date of exercise over (ii) the SAR Exercise Price. The Award Agreement for a SAR (except those that constitute Substitute
Awards) shall specify the SAR Exercise Price, which shall be fixed on the Grant Date as not less than the Fair Market Value of a Share
on that date. SARs may be granted alone or in conjunction with all or part of an Option or at any subsequent time during the term of
such Option or in conjunction with all or part of any other Award. A SAR granted in tandem with an outstanding Option after the Grant
Date of such Option shall have a SAR Exercise Price that is equal to the Option Price; provided, however, that the SAR
Exercise Price may not be less than the Fair Market Value of a Share on the Grant Date of the SAR to the extent required by Section 409A.
The
Board shall determine at the Grant Date, or thereafter, the time or times at which and the circumstances under which a SAR may be exercised
in whole or in part (including based on achievement of performance goals and/or future service requirements), the time or times at which
SARs shall cease to be or become exercisable after Separation from Service or upon other terms or conditions, the method of exercise,
whether or not a SAR shall be in tandem or in combination with any other Award, and any other terms and conditions of any SAR.
The
term of a SAR granted under the Plan shall be determined by the Board, in its sole discretion, and stated in the related Award Agreement;
provided, however, that such term shall not exceed ten years.
| 9.4. | Payment
of SAR Amount |
Upon
exercise of a SAR, a Grantee shall be entitled to receive payment from the Company (in cash or Shares) in an amount determined by multiplying:
| (i) | the
difference between the Fair Market Value of a Share on the date of exercise over the SAR
Exercise Price; by |
| (ii) | the
number of Shares with respect to which the SAR is exercised. |
| 10. | TERMS
AND CONDITIONS OF RESTRICTED SHARES AND RSUs |
At
the time of grant, the Board may, in its sole discretion, establish a period of time (a “Restricted Period”) and any
additional restrictions including the satisfaction of corporate or individual performance objectives applicable to an Award of Restricted
Shares or RSUs. Each Award of Restricted Shares or RSUs may be subject to a different Restricted Period and additional restrictions.
Neither Restricted Shares nor RSUs may be sold, transferred, assigned, pledged, or otherwise encumbered or disposed of during the Restricted
Period or prior to the satisfaction of any other applicable restrictions.
| 10.2. | Restricted
Share Certificates |
The
Company shall issue, in the name of each Grantee to whom Restricted Shares have been granted, stock certificates or other evidence of
ownership representing the total number of Restricted Shares granted to the Grantee, as soon as reasonably practicable after the Grant
Date. The Board may provide in an Award Agreement that either (i) the Secretary of the Company shall hold such certificates for the Grantee’s
benefit until such time as any Restricted Shares are forfeited to the Company or the restrictions lapse, or (ii) such certificates shall
be delivered to the Grantee; provided, however, that such certificates shall bear a legend or legends that comply with the applicable
securities laws and regulations and make appropriate reference to the restrictions imposed under the Plan and the Award Agreement.
| 10.3. | Rights
of Holders of Restricted Shares |
Unless
the Board otherwise provides in an Award Agreement and subject to Section 17.10, holders of Restricted Shares shall have
rights as Stockholders, including voting and dividend rights.
| 10.4. | Rights
of Holders of RSUs |
| 10.4.1. | Settlement
of RSUs |
RSUs
may be settled in cash or Shares, as determined by the Board and set forth in the Award Agreement. The Award Agreement shall also set
forth whether the RSUs shall be settled (i) within the time period specified for “short term deferrals” under Section 409A
or (ii) otherwise within the requirements of Section 409A, in which case the Award Agreement shall specify upon which events
such RSUs shall be settled.
| 10.4.2. | Voting
and Dividend Rights |
Unless
otherwise stated in the applicable Award Agreement and subject to Section 17.10, holders of RSUs shall not have rights as
Stockholders, including no voting or dividend or dividend equivalents rights.
A
holder of RSUs shall have no rights other than those of a general creditor of the Company. RSUs represent an unfunded and unsecured obligation
of the Company, subject to the applicable Award Agreement.
| 10.5. | Purchase
of Restricted Shares |
The
Grantee shall be required, to the extent required by applicable law, to purchase Restricted Shares from the Company at a Purchase Price
equal to the greater of (i) the aggregate par value of the Shares represented by such Restricted Shares or (ii) the Purchase
Price, if any, specified in the related Award Agreement. If specified in the Award Agreement, the Purchase Price may be deemed paid by
services already rendered. The Purchase Price shall be payable in a form described in Section 11 or, if permitted by the
Board, in consideration for past services rendered.
| 10.6. | Delivery
of Stock Certificates |
Upon
the expiration or termination of any Restricted Period and the satisfaction of any other terms and conditions prescribed by the Board,
the restrictions applicable to Restricted Shares or RSUs settled in Shares shall lapse, and, unless otherwise provided in the Award Agreement,
a stock certificate for such Shares shall be delivered, free of all such restrictions, to the Grantee or the Grantee’s beneficiary
or estate, as the case may be.
| 11. | FORM
OF PAYMENT FOR OPTIONS AND RESTRICTED SHARES |
Payment
of the Option Price for an Option or the Purchase Price for Restricted Shares shall be made in cash or in cash equivalents acceptable
to the Company, except as provided in this Section 11. Notwithstanding any provision of this Section 11, during any
period for which the Common Stock is publicly traded (i.e., the Common Stock is listed on any established stock exchange or a national
market system) an exercise by a Non-Employee Director or officer that involves or may involve a direct or indirect extension of credit
or arrangement of an extension of credit by the Company, directly or indirectly, in violation of Section 402(a) of the Sarbanes-Oxley
Act of 2002 shall be prohibited with respect to any Award under this Plan.
To
the extent the Award Agreement so provides, payment of the Option Price for Shares purchased pursuant to the exercise of an Option or
the Purchase Price for Restricted Shares may be made all or in part through the tender to, or withholding by, the Company of Shares that
shall be valued, for purposes of determining the extent to which the Option Price or Purchase Price for Restricted Shares has been paid
thereby, at their Fair Market Value on the date of exercise or surrender. Notwithstanding the foregoing, in the case of an Incentive
Stock Option, the right to make payment in the form of already owned Shares may be authorized only at the time of grant.
With
respect to an Option only (and not with respect to Restricted Shares), to the extent permitted by law and to the extent the Award Agreement
so provides, payment of the Option Price may be made all or in part by delivery (on a form acceptable to the Company) of an irrevocable
direction to a licensed securities broker acceptable to the Company to sell Shares and to deliver all or part of the sales proceeds to
the Company in payment of the Option Price and any withholding taxes described in Section 17.3.
| 11.4. | Other
Forms of Payment |
To
the extent the Award Agreement so provides, payment of the Option Price or the Purchase Price for Restricted Shares may be made in any
other form that is consistent with applicable laws, regulations, and rules, including the Company’s withholding of Shares otherwise
due to the exercising Grantee.
| 12. | TERMS
AND CONDITIONS OF PERFORMANCE AWARDS |
The
right of a Grantee to exercise or receive a grant or settlement of any Award, and the timing thereof, may be subject to such performance
conditions as may be specified by the Board. The Board may use such business criteria and other measures of performance as it may deem
appropriate in establishing any performance conditions, and may exercise its discretion to reduce the amounts payable under any Award
subject to performance conditions.
| 13. | other
sTOCK-based awards |
| 13.1. | Grant
of Other Stock-based Awards |
Other
Stock-based Awards may be granted either alone or in addition to or in conjunction with other Awards. Other Stock-based Awards may be
granted in lieu of other cash or other compensation to which a Service Provider is entitled from the Company or may be used in the settlement
of amounts payable in Shares under any other compensation plan or arrangement of the Company. Subject to the terms and conditions of
the Plan, the Board shall have the sole and complete authority to determine the persons to whom and the time or times at which such Awards
may be made, the number of Shares to be granted under such Awards, and all other terms and conditions of such Awards. Unless the Board
determines otherwise, any such Award shall be confirmed by an Award Agreement, which shall contain such terms and conditions as the Board
determines to be necessary or appropriate to carry out the intent of the Plan with respect to such Award.
| 13.2. | Terms of Other
Stock-based Awards |
Any
Shares subject to Awards made under this Section 12 may not be sold, assigned, transferred, pledged, or otherwise encumbered
before the date on which the Shares are issued, or, if later, the date on which any applicable restriction, performance, or deferral
period lapses.
The
Company shall not be required to sell or issue any Shares under any Award if the sale or issuance of such Shares would constitute a violation
by the Grantee, any other individual, or the Company of any law or regulation of any governmental authority, including any federal or
state securities laws or regulations. If at any time the Company determines that the listing, registration, or qualification of any Shares
subject to an Award upon any securities exchange or under any governmental regulatory body is necessary or desirable as a term or condition
of, or in connection with, the issuance or purchase of Shares hereunder, no Shares may be issued or sold to the Grantee or any other
individual exercising an Option unless such listing, registration, qualification, consent or approval shall have been effected or obtained
free of any terms and conditions not acceptable to the Company, and any delay caused thereby shall in no way affect the date of termination
of the Award. Specifically, in connection with the Securities Act, upon the exercise of any Option or the delivery of any Shares underlying
an Award, unless a registration statement under such Act is in effect with respect to the Shares covered by such Award, the Company shall
not be required to sell or issue such Shares unless the Board has received evidence satisfactory to it that the Grantee or any other
individual exercising an Option may acquire such Shares under an exemption from registration under the Securities Act. Any determination
in this connection by the Board shall be final, binding, and conclusive. The Company may, but shall not be obligated to, register any
securities covered hereby under the Securities Act. The Company shall not be obligated to take any affirmative action in order to cause
the exercise of an Option or the issuance of Shares under the Plan to comply with any law or regulation of any governmental authority.
As to any jurisdiction that expressly imposes the requirement that an Option shall not be exercisable until the Shares covered by such
Option are registered or are exempt from registration, the exercise of such Option (under circumstances in which the laws of such jurisdiction
apply) shall be deemed conditioned upon the effectiveness of such registration or the availability of such an exemption. The Board may
require the Grantee to sign such additional documentation, make such representations, and furnish such information as the Board may consider
appropriate in connection with the grant of Awards or issuance or delivery of Shares in compliance with applicable laws.
The
Plan is intended to comply with Section 25102(o) of the California Corporations Code, to the extent applicable. In that regard, to the
extent required by Section 25102(o), (1) the terms of any Options or SARs, to the extent vested and exercisable upon a Grantee’s
Separation from Service, shall include any minimum exercise periods following Separation from Service specified by Section 25102(o) and
(2) any repurchase right of the Company with respect to Issued Shares shall include a minimum 90-day notice requirement. Any Plan term
that is inconsistent with Section 25102(o) shall, without further act or amendment by the Company or the Board, be reformed to comply
with the requirements of Section 25102(o).
During
any time when the Company has a class of equity security registered under Section 12 of the Exchange Act, it is the intent of the Company
that Awards and the exercise of Options granted to officers and directors hereunder shall qualify for the exemption provided by Rule
16b-3 under the Exchange Act. To the extent that any provision of the Plan or action by the Board or Committee does not comply with the
requirements of Rule 16b-3, it shall be deemed inoperative to the extent permitted by law and deemed advisable by the Board, and shall
not affect the validity of the Plan. In the event that Rule 16b-3 is revised or replaced, the Board may exercise its discretion to modify
this Plan in any respect necessary to satisfy the requirements of, or to take advantage of any features of, the revised exemption or
its replacement.
| 14.4 | Non-Exempt Employees. |
No
Option granted to a Grantee who is a non-exempt employee for purposes of the Fair Labor Standards Act of 1938, as amended, shall be first
exercisable for any shares of Common Stock until at least six months following the date of grant of the Option. Notwithstanding the foregoing,
consistent with the provisions of the Worker Economic Opportunity Act, in the event of the Grantee’s death or Disability, upon
a Change in Control in which the vesting of such Options accelerates, or upon the Grantee’s retirement (as such term may be defined
in the Grantee’s Award Agreement or in another applicable agreement or in accordance with the Company’s then current employment
policies and guidelines) any such vested Options may be exercised earlier than six months following the date of grant. The foregoing
provision is intended to operate so that any income derived by a non-exempt employee in connection with the exercise or vesting of an
Option shall be exempt from the Grantee’s regular rate of pay.
| 15. | EFFECT
OF CHANGES IN CAPITALIZATION |
| 15.1. | Changes
in Common Stock |
If
(i) the number of outstanding Shares is increased or decreased or the Shares are changed into or exchanged for a different number or
kind of shares or other securities of the Company on account of any recapitalization, reclassification, stock split, reverse split, combination
of shares, exchange of shares, stock dividend or other distribution payable in capital stock, or other increase or decrease in such Shares
effected without receipt of consideration by the Company occurring after the Effective Date or (ii) there occurs any spin-off, split-up,
extraordinary cash dividend, or other distribution of assets by the Company, (A) the number and kinds of shares for which grants of Awards
may be made (including the per-Grantee maximums set forth in Section 4), (B) the number and kinds of shares for which outstanding
Awards may be exercised or settled, and (C) the performance goals relating to outstanding Awards, shall be equitably adjusted by the
Company; provided that any such adjustment shall comply with Section 409A. In addition, in the event of any such increase
or decease in the number of outstanding shares or other transaction described in clause (ii) above, the number and kind of shares for
which Awards are outstanding and the Option Price per share of outstanding Options and SAR Exercise Price per share of outstanding SARs
shall be equitably adjusted; provided that any such adjustment shall comply with Section 409A.
| 15.2. | Effect
of Certain Transactions |
Except
as otherwise provided in an Award Agreement, in the event of a Corporate Transaction, the Plan and the Awards shall continue in effect
in accordance with their respective terms, except that after a Corporate Transaction either (i) each outstanding Award shall be treated
as provided for in the agreement entered into in connection with the Corporate Transaction or (ii) if not so provided in such agreement,
each Grantee shall be entitled to receive in respect of each Share subject to any outstanding Awards, upon exercise or payment or transfer
in respect of any Award, the same number and kind of stock, securities, cash, property, or other consideration that each Stockholder
was entitled to receive in the Corporate Transaction in respect of one Share; provided, however, that, unless otherwise
determined by the Board, such stock, securities, cash, property or other consideration shall remain subject to all of the terms and conditions
(including performance criteria) that were applicable to the Awards before such Corporate Transaction. Without limiting the generality
of the foregoing, the treatment of outstanding Options and SARs under this Section 15.2 in connection with a Corporate Transaction
in which the consideration paid or distributed to the Stockholders is not entirely shares of common stock of the acquiring or resulting
corporation may include the cancellation of outstanding Options and SARs upon consummation of the Corporate Transaction as long as, at
the election of the Board, (A) the holders of affected Options and SARs have been given a period of at least 15 days before the date
of the consummation of the Corporate Transaction to exercise the Options or SARs (to the extent otherwise exercisable) or (B) the holders
of the affected Options and SARs are paid (in cash or cash equivalents) in respect of each Share covered by the Option or SAR being canceled
an amount equal to the excess, if any, of the per Share price paid or distributed to Stockholders in the Corporate Transaction (the value
of any noncash consideration to be determined by the Board) over the Option Price or SAR Exercise Price, as applicable. For avoidance
of doubt, (i) the cancellation of Options and SARs under clause (B) of the preceding sentence may be effected notwithstanding any other
term or condition of the Plan or any Award Agreement and (ii) if the amount determined under clause (B) of the preceding sentence is
zero or less, the affected Option or SAR may be cancelled without any payment therefore. The treatment of any Award as provided in this
Section 15.2 shall be conclusively presumed to be appropriate for purposes of Section 15.1.
Subject
to the requirements and limitations of Section 409A, if applicable, the Board may provide for any one or more of the following in connection
with a Change in Control, which such actions need not be the same for all Grantees:
| (i) | Accelerated
Vesting. Unless otherwise provided in any Award Agreement, upon a Grantee’s Separation
from Service immediately prior to, upon, or following a Change in Control for any reason
other than Cause, the exercisability, vesting and/or settlement of an Award shall immediately
accelerate. |
| (ii) | Assumption,
Continuation or Substitution. In the event of a Change in Control, the surviving, continuing,
successor, or purchasing corporation or other business entity or parent thereof, as the case
may be (the “Acquiror”), may, without the consent of any Grantee, either
assume or continue the Company’s rights and obligations under each or any Award or
portion thereof outstanding immediately prior to the Change in Control or substitute for
each or any such outstanding Award or portion thereof a substantially equivalent award with
respect to the Acquiror’s stock, as applicable. For purposes of this Section 15.3,
if so determined by the Board, in its discretion, an Award denominated in Shares shall be
deemed assumed if, following the Change in Control, the Award confers the right to receive,
subject to the terms and conditions of the Plan and the applicable Award Agreement, for each
Share subject to the Award immediately prior to the Change in Control, the consideration
(whether stock, cash, other securities or property or a combination thereof) to which a holder
of a Share on the effective date of the Change in Control was entitled; provided, however,
that if such consideration is not solely common stock of the Acquiror, the Board may, with
the consent of the Acquiror, provide for the consideration to be received upon the exercise
or settlement of the Award, for each Share subject to the Award, to consist solely of common
stock of the Acquiror equal in Fair Market Value to the per share consideration received
by holders of Shares pursuant to the Change in Control. If any portion of such consideration
may be received by holders of Shares pursuant to the Change in Control on a contingent or
delayed basis, the Board may, in its sole discretion, determine such Fair Market Value per
share as of the time of the Change in Control on the basis of the Board’s good faith
estimate of the present value of the probable future payment of such consideration. Any Award
or portion thereof which is neither assumed or continued by the Acquiror in connection with
the Change in Control nor exercised or settled as of the time of consummation of the Change
in Control shall terminate and cease to be outstanding effective as of the time of consummation
of the Change in Control. |
| (iii) | Cash-Out
of Awards. The Board may, in its discretion and without the consent of any Grantee, determine
that, upon the occurrence of a Change in Control, each or any Award or a portion thereof
outstanding immediately prior to the Change in Control and not previously exercised or settled
shall be canceled in exchange for a payment with respect to each vested Share (and each unvested
Share, if so determined by the Board) subject to such canceled Award in (i) cash, (ii) stock
of the Company or of a corporation or other business entity a party to the Change in Control,
or (iii) other property which, in any such case, shall be in an amount having a Fair Market
Value equal to the Fair Market Value of the consideration to be paid per Share in the Change
in Control, reduced by the exercise or purchase price per share, if any, under such Award.
If any portion of such consideration may be received by holders of Shares pursuant to the
Change in Control on a contingent or delayed basis, the Board may, in its sole discretion,
determine such Fair Market Value per share as of the time of the Change in Control on the
basis of the Board’s good faith estimate of the present value of the probable future
payment of such consideration. In the event such determination is made by the Board, the
amount of such payment (reduced by applicable withholding taxes, if any) shall be paid to
Grantees in respect of the vested portions of their canceled Awards as soon as practicable
following the date of the Change in Control and in respect of the unvested portions of their
canceled Awards in accordance with the vesting schedules applicable to such Awards. The Board
may, in its discretion, without payment of any consideration to the Grantee, cancel any outstanding
Award to the extent not vested or exercised immediately prior to the Change in Control and
not otherwise assumed or continued by the Acquiror in accordance with Section 15.3(ii)
above. |
Adjustments
under this Section 15 related to Shares or other securities of the Company shall be made by the Board, whose determination
in that respect shall be final, binding and conclusive. No fractional Shares or other securities shall be issued under any such adjustment,
and any fractions resulting from any such adjustment shall be eliminated in each case by rounding downward to the nearest whole Share.
| 16. | No
Limitations on Company |
The
grant of Awards shall not affect or limit in any way the right or power of the Company to make adjustments, reclassifications, reorganizations,
or changes of its capital or business structure or to merge, consolidate, dissolve, or liquidate, or to sell or transfer all or any part
of its business or assets.
| 17. | TERMS
APPLICABLE GENERALLY TO AWARDS |
| 17.1. | Disclaimer
of Rights |
No
term or condition of the Plan or any Award Agreement shall be construed to confer upon any individual the right to remain in the employ
or service of the Company or any Affiliate, or to interfere in any way with any contractual or other right or authority of the Company
or any Affiliate either to increase or decrease the compensation or other payments to any individual at any time, or to terminate any
employment or other relationship between any individual and the Company. In addition, notwithstanding any other term or condition of
the Plan, unless otherwise stated in the applicable Award Agreement, no Award shall be affected by any change of duties or position of
the Grantee, so long as such Grantee continues to be a Service Provider. The obligation of the Company to pay any benefits under the
Plan shall be interpreted as a contractual obligation to pay only those amounts described herein, in the manner and under the terms and
conditions prescribed herein. The Plan shall in no way be interpreted to require the Company to transfer any amounts to a third party
trustee or otherwise hold any amounts in trust or escrow for payment to any Grantee or beneficiary under the Plan.
| 17.2. | Nonexclusivity
of the Plan |
Neither
the adoption of the Plan nor the submission of the Plan to the Stockholders for approval shall be construed as creating any limitations
upon the right and authority of the Board to adopt such other incentive compensation arrangements (which arrangements may be applicable
either generally to a class or classes of individuals or specifically to a particular individual or particular individuals), including,
without limitation, the granting of Options as the Board determines desirable.
The
Company or an Affiliate, as the case may be, shall have the right to deduct from payments of any kind otherwise due to a Grantee any
federal, state, or local taxes of any kind required by law to be withheld (i) with respect to the vesting of or other lapse of restrictions
applicable to an Award, (ii) upon the issuance of any Shares upon the exercise of an Option or SAR, or (iii) otherwise due in connection
with an Award. At the time of such vesting, lapse, or exercise, the Grantee shall pay to the Company or the Affiliate, as the case may
be, any amount that the Company or the Affiliate may reasonably determine to be necessary to satisfy such withholding obligation. The
Company or the Affiliate, as the case may be, may require or permit the Grantee to satisfy such obligations, in whole or in part, (A)
by causing the Company or the Affiliate to withhold up to the maximum required number of Shares otherwise issuable to the Grantee as
may be necessary to satisfy such withholding obligation or (B) by delivering to the Company or the Affiliate Shares already owned by
the Grantee. The Shares so delivered or withheld shall have an aggregate Fair Market Value equal to such withholding obligations. The
Fair Market Value of the Shares used to satisfy such withholding obligation shall be determined by the Company or the Affiliate as of
the date that the amount of tax to be withheld is to be determined. To the extent applicable, a Grantee may satisfy any withholding obligation
only with Shares that are not subject to any repurchase, forfeiture, unfulfilled vesting, or other similar requirements.
| 17.4. | Other
Terms and Conditions; Employment Agreements |
Each
Award Agreement may contain such other terms and conditions not inconsistent with the Plan as may be determined by the Board, in its
sole discretion. In the event of any conflict between the terms and conditions of an employment agreement and the Plan, the terms and
conditions of the employment agreement shall govern.
If
any term or condition of the Plan or any Award Agreement is determined to be illegal or unenforceable by any court of law in any jurisdiction,
the remaining terms and conditions hereof and thereof shall be severable and enforceable, and all terms and conditions shall remain enforceable
in any other jurisdiction.
The
Plan and all Award Agreements shall be construed in accordance with and governed by the laws of the State of Delaware without regard
to the principles of conflicts of law that could cause the application of the laws of any jurisdiction other than the State of Delaware.
For purposes of resolving any dispute that arises under the Plan, each Grantee, by virtue of receiving an Award, shall be deemed to have
submitted to and consented to the exclusive jurisdiction of the State of Florida and to have agreed that any related litigation shall
be conducted solely in the courts of Miami-Dade County or the federal courts for the U.S. for the Southern District of Florida, where
the Plan is made and to be performed, and no other courts. The Plan is not intended to be subject to the Employee Retirement Income Security
Act of 1974.
The
Plan is intended to comply with Section 409A to the extent subject thereto, and, accordingly, to the maximum extent permitted, the
Plan shall be interpreted and administered to be in compliance therewith. Any payments described in the Plan that are due within the
“short-term deferral period” as defined in Section 409A shall not be treated as deferred compensation unless applicable
laws require otherwise. For purposes of Section 409A, each installment payment under the Plan shall be treated as a separate payment.
Notwithstanding any other term or condition of the Plan, to the extent required to avoid accelerated taxation or tax penalties under
Section 409A, amounts that would otherwise be payable and benefits that would otherwise be provided under the Plan during the six-month
period immediately after the Grantee’s Separation from Service shall instead be paid on the first payroll date after the six-month
anniversary of the Grantee’s Separation from Service (or the Grantee’s death, if earlier). Notwithstanding the foregoing,
neither the Company nor the Board shall have any obligation to take any action to prevent the assessment of any additional tax or penalty
on any Grantee under Section 409A and neither the Company nor the Board shall have any liability to any Grantee for such tax or
penalty.
| 17.8. | Separation
from Service |
The
Board shall determine the effect of a Separation from Service upon Awards, and such effect shall be set forth in the appropriate Award
Agreement. Without limiting the foregoing, the Board may provide in the Award Agreements at the time of grant, or any time thereafter
with the consent of the Grantee, the actions that may be taken upon the occurrence of a Separation from Service, including accelerated
vesting or termination, depending upon the circumstances surrounding the Separation from Service.
| 17.9. | Transferability
of Awards and Issued Shares |
| 17.9.1. | Transfers
in General |
Except
as provided in Section 17.9.2, no Award shall be assignable or transferable by the Grantee to whom it is granted, other than
by will or the laws of descent and distribution, and, during the lifetime of the Grantee, only the Grantee personally (or the Grantee’s
personal representative) may exercise rights under the Plan.
If
authorized in the applicable Award Agreement, a Grantee may transfer, not for value, all or part of an Award (other than Incentive Stock
Options) to any Family Member. For the purpose of this Section 17.9.2, a “not for value” transfer is a transfer
that is (i) a gift, (ii) a transfer under a domestic relations order in settlement of marital property rights; or (iii) a
transfer to an entity in which more than 50% of the voting interests are owned by Family Members (or the Grantee) in exchange for an
interest in that entity. After a transfer under this Section 17.9.2, any such Award shall continue to be subject to the same
terms and conditions as were applicable immediately before transfer. Subsequent transfers of transferred Awards are prohibited except
to Family Members of the original Grantee in accordance with this Section 17.9.2 or by will or the laws of descent and distribution.
| 17.10. | Dividend
Equivalent Rights |
If
specified in the Award Agreement, the recipient of an Award may be entitled to receive dividend equivalent rights with respect to the
Shares or other securities covered by an Award. The terms and conditions of a dividend equivalent right may be set forth in the Award
Agreement. Dividend equivalents credited to a Grantee may be paid in cash or deemed to be reinvested in additional Shares or other securities
of the Company at a price per unit equal to the Fair Market Value of a Share on the date that such dividend was paid to Stockholders.
Notwithstanding the foregoing, dividends or dividend equivalents shall not be paid on any Award or portion thereof that is unvested or
on any Award that is subject to the achievement of performance criteria before the Award has become earned and payable.
A
Grantee’s acceptance of an Award shall be deemed to constitute the Grantee’s acknowledgement of and consent to the collection
and processing of personal data relating to the Grantee so that the Company can meet its obligations and exercise its rights under the
Plan and generally administer and manage the Plan. This data shall include data about participation in the Plan and Shares offered or
received, purchased, or sold under the Plan and other appropriate financial and other data (such as the date on which the Awards were
granted) about the Grantee and the Grantee’s participation in the Plan.
| 17.12. | Disqualifying
Dispositions |
Any
Grantee who shall make a “disposition” (as defined in Section 424 of the Code) of all or any portion of Shares acquired upon
exercise of an Incentive Stock Option within two years from the Grant Date of such Incentive Stock Option or within one year after the
issuance of the Shares acquired upon exercise of such Incentive Stock Option shall be required to immediately advise the Company in writing
as to the occurrence of the sale and the price realized upon the sale of such shares of Common Stock.
In
the Plan, unless otherwise stated, the following uses apply:
| |
(i) |
references to a statute or
law refer to the statute or law and any amendments and any successor statutes or laws, and to all valid and binding governmental regulations,
court decisions, and other regulatory and judicial authority issued or rendered thereunder, as amended, or their successors, as in effect
at the relevant time; |
| |
|
|
| |
(ii) |
in computing periods from a
specified date to a later specified date, the words “from” and “commencing on” (and the like) mean “from
and including,” and the words “to,” “until” and “ending on” (and the like) mean “to and
including”; |
| |
|
|
| |
(iii) |
indications of time of day
shall be based upon the time applicable to the location of the principal headquarters of the Company; |
| |
|
|
| |
(iv) |
the words “include,”
“includes” and “including” (and the like) mean “include, without limitation,” “includes, without
limitation” and “including, without limitation” (and the like), respectively; |
| |
|
|
| |
(v) |
all references to articles
and sections are to articles and sections in the Plan; |
| |
|
|
| |
(vi) |
all words used shall be construed
to be of such gender or number as the circumstances and context require; |
| |
|
|
| |
(vii) |
the captions and headings of
articles and sections have been inserted solely for convenience of reference and shall not be considered a part of the Plan, nor shall
any of them affect the meaning or interpretation of the Plan; |
| |
|
|
| |
(viii) |
any reference to an agreement,
plan, policy, form, document or set of documents, and the rights and obligations of the parties under any such agreement, plan, policy,
form, document or set of documents, shall mean such agreement, plan, policy, form, document or set of documents as amended from time
to time, and any and all modifications, extensions, renewals, substitutions or replacements thereof; and |
| |
|
|
| |
(ix) |
all accounting terms not specifically
defined shall be construed in accordance with GAAP. |
24
Exhibit 21.1
LIST OF SUBSIDIARIES
The following is a list of subsidiaries of the Company:
| Subsidiary Legal Name |
State or Other Jurisdiction of Incorporation or Organization |
| |
|
| Renovaro Biopharma, Inc. |
Delaware |
| Renovaro Biosciences Denmark ApS |
Denmark |
| Renovaro Technologies, Inc. |
Nevada |
Exhibit 31.1
CERTIFICATION OF PRINCIPAL EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY
ACT OF 2002
I, Mark Dybul, certify that:
| 1. |
I have reviewed this Amendment No. 1 to the Annual Report on Form 10-K/A of Renovaro Biosciences Inc.; |
| |
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| |
|
| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| |
|
| 4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15-d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| |
|
| |
a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
| |
|
|
| |
b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
| |
|
|
| |
c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
| |
|
|
| |
d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| |
|
| 5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| |
|
| |
a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
| |
|
|
| |
b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Date: October 30, 2023 |
|
| |
|
|
| By: |
/s/ Mark Dybul |
|
| Mark Dybul |
|
| Chief Executive Officer |
|
| (Principal Executive Officer) |
|
Exhibit 31.2
CERTIFICATION OF PRINCIPAL FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Luisa Puche, certify that:
| 1. |
I have reviewed this Amendment No. 1 to the Annual Report on Form 10-K/A of Renovaro Biosciences Inc.; |
| |
|
| 2. |
Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
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| 3. |
Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
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| 4. |
The registrant’s other certifying officer(s) and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15-d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
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a) |
Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; |
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b) |
Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; |
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c) |
Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and |
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d) |
Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
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| 5. |
The registrant’s other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
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a) |
All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and |
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b) |
Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| Date: October 30, 2023 |
|
| |
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| /s/ Luisa Puche |
|
| Luisa Puche |
|
Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
Exhibit 32.1
CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Amendment No. 1 to the Annual Report of Renovaro Biosciences Inc. (the “Company”) on Form 10-K/A
for the year ending June 30, 2023 as filed with the Securities and Exchange Commission (the “Report”), the undersigned,
Mark Dybul, as Chief Executive Officer (Principal Executive Officer) of the Company, hereby certifies as of the date hereof, solely
for purposes of Title 18, Chapter 63, Section 1350 of the United States Code, that to the best of my knowledge:
| (1) |
The Report fully complies with the
requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and |
| |
|
| (2) |
The information contained in the Report
fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Date: October 30, 2023 |
|
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|
|
| By: |
/s/ Mark Dybul |
|
| Mark Dybul |
|
| Chief Executive Officer |
|
| (Principal Executive Officer) |
|
Exhibit 32.2
CERTIFICATION
PURSUANT TO
18 U.S.C. SECTION 1350, AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Amendment No. 1 to the Annual Report of Renovaro Biosciences Inc. (the “Company”) on Form 10-K/A
for the year ending June 30, 2023 as filed with the Securities and Exchange Commission (the “Report”), the undersigned,
Luisa Puche, as Chief Financial Officer (Principal Financial Officer) of the Company, hereby certifies as of the date hereof,
solely for purposes of Title 18, Chapter 63, Section 1350 of the United States Code, that to the best of my knowledge:
| (1) |
The Report fully complies with the
requirements of Section 13(a) or 15(d), as applicable, of the Securities Exchange Act of 1934, and |
| |
|
| (2) |
The information contained in the Report
fairly presents, in all material respects, the financial condition and results of operations of the Company. |
| Date: October 30, 2023 |
|
| |
|
| /s/ Luisa Puche |
|
| Luisa Puche |
|
| |
|
Chief Financial Officer
(Principal Financial and Accounting Officer) |
|
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