Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________________
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
(Amendment No. )
________________________
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
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Preliminary Proxy Statement |
| ☐ |
Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material Pursuant to §240.14a-12 |
ACLARION, INC.
________________________
(Name of Registrant as Specified in its Charter)
________________________
(Name of Person(s) Filing Proxy Statement, if other
than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
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Fee paid previously with preliminary materials. |
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Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i) and 0-11 |
ACLARION, INC.
8181 ARISTA PLACE, SUITE 100
BROOMFIELD, COLORADO 80021
NOTICE OF 2024 ANNUAL MEETING OF STOCKHOLDERS
To be Held December [***], 2024
Notice is hereby given that the 2024 Annual Meeting
of Stockholders, or the Annual Meeting, of Aclarion, Inc., will be held on December [***], 2024 at 9:30 a.m. Mountain Time. The Annual
Meeting will be held at the offices of Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield, Colorado 80021.
The purpose of the Annual Meeting is the following:
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To elect seven director nominees to our board of directors, to serve until the Company’s 2025 annual meeting of stockholders and until their successors have been duly elected and qualified, or until their earlier death, resignation or removal (the “Director Proposal” or “Proposal No. 1”); |
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To ratify the appointment of Haynie & Company as our independent registered public accounting firm for the fiscal year ending December 31, 2024 (the “Auditor Proposal” or “Proposal No. 2”); |
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To authorize, in accordance with Nasdaq Listing Rule 5635(d), the issuance of shares of our common stock, pursuant to the Company’s amended Equity Line of Credit (as defined herein) (the “ELOC Amendment Issuance Proposal” or “Proposal No. 3”); |
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To authorize, in accordance with Nasdaq Listing Rule 5635(d), the issuance of shares of our common stock, pursuant to our Series B convertible preferred stock that the Company issued to certain private investors on August 14, 2024 (the “Series B Preferred Issuance Proposal” or “Proposal No. 4”); |
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To authorize, in accordance with Nasdaq Listing Rule 5635(d), the issuance of shares of our common stock, pursuant to our Series C convertible preferred stock and related warrants that the Company issued to certain private investors on September 30, 2024 (the “Series C Preferred Issuance Proposal” or “Proposal No. 5”); |
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To grant discretionary authority to our board of directors to (i) amend
our certificate of incorporation to combine outstanding shares of our common stock into a lesser number of outstanding shares, or a “reverse
stock split,” at a specific ratio within a range of one-for-five (1-for-5) to a maximum of a one-for-four hundred (1-for-400) split,
with the exact ratio to be determined by our board of directors in its sole discretion; and (ii) effect the reverse stock split, if at
all, within one year of the date the proposal is approved by stockholders (the “Reverse Stock Split Proposal” or “Proposal
No. 6”); and |
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To approve an amendment to the Company’s 2022 Equity Incentive Plan (“2022 Plan”) (the “Equity Plan Proposal” or “Proposal No. 7”); and |
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To transact any other business properly brought before the Annual Meeting or any adjournment or postponement of the Annual Meeting. |
Only Aclarion, Inc. stockholders of record at the
close of business on November [***], 2024, the record date for the Annual Meeting, are entitled to notice of, and to vote at, the Annual
Meeting or any adjournment or postponement of the Annual Meeting.
You can find more information on each of the matters
to be voted on at the Annual Meeting, including information regarding the nominees for election to our board of directors, in the accompanying
proxy statement. The board of directors recommends a vote “FOR” the election of the seven director nominees, “FOR”
the ratification of the appointment of our independent registered public accounting firm for the fiscal year ending December 31, 2024,
“FOR” the ELOC Amendment Issuance Proposal, “FOR” the Series B Preferred Issuance Proposal, “FOR”
the Series C Preferred Issuance Proposal, “FOR” the Reverse Stock Split Proposal, and “FOR” the Equity Plan Proposal,
as disclosed in the accompanying proxy statement.
This Proxy Statement and our 2023 Annual Report
are available at www.aclarion.com.
Your vote is important. Whether or not you
are able to attend the Annual Meeting in person, it is important that your shares be represented. To ensure that your vote is recorded
promptly, please vote as soon as possible, even if you plan to attend the Annual Meeting in person, by submitting your proxy via the Internet
at the address listed on the proxy card.
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By order of the Board of Directors, |
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/s/ Brent Ness |
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Brent Ness |
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Chief Executive Officer |
Broomfield, Colorado
November [***], 2024
Table of Contents
ACLARION, INC.
8181 Arista Place, Suite 100
Broomfield, CO 80021
PROXY STATEMENT
FOR THE 2024 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD DECEMBER [***], 2024
This proxy statement contains information about
the 2024 Annual Meeting of Stockholders, or the Annual Meeting, of Aclarion, Inc., which will be held on December [***], 2024 at 9:30
a.m. Mountain Time. The Annual Meeting will be held at the offices of Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield, CO 80021.
You may only attend the Annual Meeting in person.
The board of directors of Aclarion, Inc. is using
this proxy statement to solicit proxies for use at the Annual Meeting. In this proxy statement, the terms “Aclarion, Inc.,”
“Aclarion,” the “Company,” “we,” “us,” “our,” and similar designations refer
to Aclarion, Inc. and, where appropriate, our subsidiaries. The mailing address of our principal executive office is Aclarion, Inc., 8181
Arista Place, Suite 100, Broomfield, CO 80021.
All properly submitted proxies will be voted in
accordance with the instructions contained in those proxies. If no instructions are specified, the proxies will be voted in accordance
with the recommendation of our board of directors with respect to each of the matters set forth in the accompanying Notice of Meeting.
You may revoke your proxy at any time before it is exercised at the meeting by giving our Corporate Secretary written notice to that effect.
We made this proxy statement and our Annual Report
to Stockholders for the fiscal year ended December 31, 2023, or the 2023 Annual Report, available to stockholders on or about November
[***], 2023.
We are an “emerging growth company”
under applicable federal securities laws and therefore permitted to conform with certain reduced public company reporting requirements.
As an emerging growth company, we provide in this proxy statement the scaled disclosure permitted under the Jumpstart Our Business Startups
Act of 2012, including the compensation disclosures required of a “smaller reporting company,” as that term is defined in
Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended, or the Exchange Act. In addition, as an emerging growth
company, we are not required to conduct votes seeking approval, on an advisory basis, of the compensation of our named executive officers
or the frequency with which such votes must be conducted. We will remain an “emerging growth company” until the earliest of
(i) the last day of the fiscal year following the fifth anniversary of our initial public offering in April 2022; (ii) the last day of
the fiscal year in which our total annual gross revenue is equal to or more than $1.07 billion; (iii) the date on which we have issued
more than $1 billion in nonconvertible debt during the previous three years; or (iv) the date on which we are deemed to be a large accelerated
filer under the rules of the Securities and Exchange Commission, or the SEC.
Important Notice Regarding the Availability
of Proxy Materials for
the Annual Meeting of Stockholders to be Held
on December [***], 2024:
The Notice of Meeting, Proxy Statement, and Annual
Report on Form 10-K for the year ended December 31, 2023 are being mailed to our stockholders on or about December [***], 2024. These
materials are also available materials available at: www.aclarion.com.
This proxy statement and our Annual Report on
Form 10-K for the fiscal year ended December 31, 2023 are also available on the SEC’s website at www.sec.gov.
ACLARION, INC.
PROXY STATEMENT
FOR THE 2024 ANNUAL MEETING OF STOCKHOLDERS
GENERAL INFORMATION
What is a proxy?
A proxy is the legal designation of another person
to vote the stock you own. That other person is called a proxy. If you designate someone as your proxy in a written document, that document
is also called a proxy or a proxy card. By completing, signing and returning the accompanying proxy card, you are designating Brent Ness,
Chief Executive Officer, and John Lorbiecki, Chief Financial Officer, as your proxies for the Annual Meeting and you are authorizing Mr.
Ness and Mr. Lorbiecki to vote your shares at the Annual Meeting as you have instructed on the proxy card. This way, your shares will
be voted whether or not you attend the Annual Meeting. Even if you plan to attend the Annual Meeting, we urge you to vote in one of the
ways described below so that your vote will be counted even if you are unable or decide not to attend the Annual Meeting.
What is a proxy statement?
A proxy statement is a document that we are required
by regulations of the U.S. Securities and Exchange Commission, or “SEC,” to give you when we ask you to sign a proxy card
designating Mr. Ness and Mr. Lorbiecki as proxies to vote on your behalf.
When are this proxy statement and the accompanying materials scheduled
to be sent to stockholders?
On or about December [***], 2024, we intend to
begin mailing to each stockholder of record entitled to vote at the Annual Meeting the Notice of Meeting, Proxy Statement, and Annual
Report on Form 10-K for the year ended December 31, 2023. Only stockholders who owned our common stock on November [***], 2024 are entitled
to vote at the Annual Meeting.
Why did you send me this proxy statement?
We sent you this proxy statement and the enclosed
proxy card because our board of directors is soliciting your proxy to vote at the Annual Meeting and any adjournment and postponement
thereof. This proxy statement summarizes information related to your vote at the Annual Meeting. All stockholders who find it convenient
to do so are cordially invited to attend the Annual Meeting at the Company’s offices in person. However, you do not need to attend
the meeting to vote your shares. Instead, you may simply complete, sign and return the proxy card or vote over the Internet or by mail.
Who is soliciting my vote?
Our board of directors is soliciting your vote
for the Annual Meeting.
When is the record date for the Annual Meeting?
The record date for determination of stockholders
entitled to vote at the Annual Meeting is the close of business on November [***], 2024.
Who may attend the Annual Meeting?
Only record holders and beneficial owners of our
common stock, or their duly authorized proxies, may attend the Annual Meeting. You may only attend the Annual Meeting in person. If your
shares of common stock are held in street name, you will need to provide a copy of a brokerage statement or other documentation reflecting
your stock ownership as of the record date.
How do I attend the Annual Meeting?
The Annual Meeting will be held on December [***],
2024, at 9:30 a.m. Mountain Time. The Annual Meeting will be held at the offices of Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield,
Colorado 80021. You may only attend the Annual Meeting in person. Information on how to vote your shares in connection with the Annual
Meeting is discussed below.
Who is entitled to vote?
The board of directors has fixed the close of business
on November [***], 2024 as the record date for the determination of stockholders entitled to notice of, and to vote at, the Annual Meeting
or any adjournment or postponement thereof.
There were [***] shares of our common stock outstanding
on November [***], 2024, all of which are entitled to vote with respect to all matters to be acted upon at the Annual Meeting. Each stockholder
of record as of the record date is entitled to one vote for each share of our common stock held by such stockholder.
What is the difference between holding shares as a record holder
and as a beneficial owner (holding shares in street name)?
If your shares are registered in your name with
our transfer agent, VStock Transfer, LLC, you are the “record holder” of those shares. If you are a record holder, these proxy
materials have been provided directly to you by the Company.
If your shares are held in a stock brokerage account,
a bank or other holder of record, you are considered the “beneficial owner” of those shares held in “street name.”
If your shares are held in street name, these proxy materials have been forwarded to you by that organization. The organization holding
your account is considered to be the stockholder of record for purposes of voting at the Annual Meeting. As the beneficial owner, you
have the right to instruct this organization on how to vote your shares. See below for information on how shares held in street name will
be voted without instructions being provided by the beneficial owner.
How do I vote?
If you are a stockholder of record, there are several
ways for you to vote your shares.
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By Internet (before the Annual Meeting). You may vote at www.vstocktransfer.com/proxy, 24 hours a day, seven days a week, by following the instructions at that site for submitting your proxy electronically. You will be required to enter the 16-digit control number provided in the Notice of Availability or the proxy card. Votes submitted through the Internet must be received by 11:59 p.m. Eastern Time on December [***], 2024. |
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By Mail. If you requested and received a printed copy of the proxy materials, you may vote by mail by completing, signing and dating the enclosed proxy card and returning it in the enclosed prepaid envelope. Votes submitted through the mail must be received prior to December [***], 2024. |
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During the Annual Meeting. If you are a stockholder of record as of the record date, you may vote in person by attending the Annual Meeting in person. Submitting a proxy prior to the Annual Meeting will not prevent stockholders from attending the Annual Meeting, revoking their earlier-submitted proxy, and voting in person at the Annual Meeting. |
If the Annual Meeting is adjourned or postponed,
the deadlines above may be extended.
If you are a beneficial owner of shares held in
“street name” by your broker, bank or other nominee, you should have received a voting instruction form with these proxy materials
from your broker, bank or other nominee rather than from us. The voting deadlines and availability of Internet voting for beneficial owners
of shares will depend on the voting processes of the broker, bank or other nominee that holds your shares. Therefore, we urge you to carefully
review and follow the voting instruction form and any other materials that you receive from that organization. If you hold your shares
in multiple accounts, you should vote your shares as described in each set of proxy materials you receive.
If you submit a proxy without giving voting instructions,
your shares will be voted in the manner recommended by the board of directors on all matters presented in this proxy statement, and as
the persons named as proxies in the proxy card may determine in their discretion with respect to any other matters properly presented
at the Annual Meeting. You may also authorize another person or persons to act for you as proxy in a writing, signed by you or your authorized
representative, specifying the details of those proxies’ authority. The original writing must be given to each of the named proxies,
although it may be sent to them by electronic transmission if, from that transmission, it can be determined that the transmission was
authorized by you.
If any other matters are properly presented for
consideration at the Annual Meeting, including, among other things, consideration of a motion to adjourn the Annual Meeting to another
time or place (including, without limitation, for the purpose of soliciting additional proxies), the persons named in your proxy and acting
thereunder will have discretion to vote on those matters in accordance with their best judgment. We do not currently anticipate that any
other matters will be raised at the Annual Meeting.
How do I revoke my proxy?
If you are a stockholder of record, you may revoke
your proxy by (1) following the instructions on the proxy card and submitting a new vote by Internet or mail using the procedures described
in the “How do I Vote?” section above before the applicable deadline, (2) attending and voting at the Annual Meeting (although
attendance at the Annual Meeting will not in and of itself revoke a proxy), or (3) filing an instrument in writing revoking the proxy
or submitting another duly executed proxy card bearing a later date with our Corporate Secretary. Any written notice of revocation or
subsequent proxy card must be received by our Corporate Secretary prior to the taking of the vote at the Annual Meeting. Such written
notice of revocation or subsequent proxy card should be hand delivered to our Corporate Secretary or sent to our principal executive offices
at Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield, CO 80021, Attention: Corporate Secretary.
If a broker, bank, or other nominee holds your
shares, you must contact such broker, bank, or nominee in order to find out how to change your vote.
How is a quorum reached?
Our bylaws provide that one-third of the outstanding
shares entitled to vote, present in person or represented by proxy, will constitute a quorum for the transaction of business at the Annual
Meeting.
Under the General Corporation Law of the State
of Delaware, shares that are voted “abstain” or “withheld” and broker “non-votes” are counted as present
for purposes of determining whether a quorum is present at the Annual Meeting. If a quorum is not present, the meeting may be adjourned
until a quorum is obtained.
How will my shares be voted if I give no specific instruction?
We must vote your shares as you have instructed.
If no instructions are specified, the proxies will be voted in accordance with the recommendation of our board of directors with respect
to each of the matters set forth in the accompanying Notice of Meeting.
If your shares are held in street name, see “What
is a broker non-vote?” below regarding the ability of banks, brokers and other such holders of record to vote the uninstructed shares
of their customers or other beneficial owners in their discretion.
What is a broker non-vote?
A “broker non-vote” occurs when shares
held by a broker in “street name” for a beneficial owner are not voted with respect to a proposal because (1) the broker has
not received voting instructions from the stockholder who beneficially owns the shares and (2) the broker lacks the authority to vote
the shares at their discretion.
If your shares are held in “street
name” by a broker, bank or other nominee, your broker, bank or other nominee is required to vote your shares according to your instructions.
If you do not give instructions to your broker, bank or other nominee, the broker, bank or other nominee will still be able to vote your
shares with respect to certain “discretionary” items, but will not be allowed to vote your shares with respect to “non-discretionary”
items.
Proposal No. 1 (Election of Directors),
Proposal No. 3 (ELOC Amendment Issuance Proposal), Proposal No. 4 (Series B Preferred Issuance Proposal), Proposal No. 5 (Series C Preferred
Issuance Proposal), and Proposal No. 7 (Equity Plan Proposal) are “non-discretionary” items. If you do not instruct your broker
how to vote with respect to these proposals, your broker, bank or other nominee may not vote for this proposal, and those votes will be
counted as broker “non-votes.
Proposal 2 (Auditor Proposal) and Proposal 6 (Reverse
Stock Split Proposal) are considered “routine” or “discretionary” matters. A broker, therefore, will be permitted
to exercise its discretion to vote uninstructed shares on Proposal 2 and Proposal 6.
What is an abstention?
An abstention is a stockholder’s affirmative
choice to decline to vote on a proposal. Under Delaware law, abstentions are counted as shares present and entitled to vote at the Annual
Meeting.
Abstentions are included in the tabulation
of the voting results on any such proposal and, therefore, may have the same effect as a vote against certain proposals considered at
the Annual Meeting (as further described below).
What vote is required to adopt each proposal?
Each share of our common stock outstanding
on the record date is entitled to one vote on any proposal presented at the Annual Meeting.
For Proposal No. 1, the election of
directors, the nominees must receive a plurality of the votes properly cast on the proposal, meaning that the seven director nominees
receiving the most votes will be elected. Shares voting “withheld” and broker non-votes will have no effect on the outcome
of Proposal No. 1. Cumulative voting is not permitted for the election of directors.
Proposal No. 2, the ratification of
our independent registered public accounting firm, requires the affirmative vote of a majority of the shares of common stock present in
person or represented by proxy and entitled to vote at the Annual Meeting. Abstentions will have the same effect as a vote against this
proposal.
Proposal No. 3, the ELOC Amendment Issuance Proposal,
requires the affirmative vote of a majority of the shares of common stock present in person or represented by proxy and entitled to vote
at the Annual Meeting. Abstentions will have the same effect as a vote against this proposal. Broker non-votes will have no effect on
the outcome of this proposal.
Proposal No. 4, the Series B Preferred Issuance
Proposal, requires the affirmative vote of a majority of the shares of common stock present in person or represented by proxy and entitled
to vote at the Annual Meeting. Abstentions will have the same effect as a vote against this proposal. Broker non-votes will have no effect
on the outcome of this proposal.
Proposal No. 5, the Series C Preferred Issuance
Proposal, requires the affirmative vote of a majority of the shares of common stock present in person or represented by proxy and entitled
to vote at the Annual Meeting. Abstentions will have the same effect as a vote against this proposal. Broker non-votes will have no effect
on the outcome of this proposal.
Proposal No. 6, the Reverse Stock Split
Proposal, requires the affirmative vote of a majority of the votes cast by the stockholders entitled to vote on the matter at the Annual
Meeting. Abstentions will have no effect on the approval or disapproval of this proposal. Broker non-votes will have no effect on the
approval or disapproval of this proposal.
Proposal No. 7, the Equity Plan Proposal, requires
the affirmative vote of a majority of the shares of common stock present in person or represented by proxy and entitled to vote at the
Annual Meeting. Abstentions will have the same effect as a vote against this proposal. Broker non-votes will have no effect on the outcome
of this proposal.
Who pays the cost for soliciting proxies?
We are making this solicitation and will pay the
entire cost of preparing and distributing our proxy materials and soliciting votes. If you choose to access the proxy materials or vote
over the Internet, you are responsible for any Internet access charges that you may incur. Our officers and employees may, without compensation
other than their regular compensation, solicit proxies through further mailings, personal conversations, facsimile transmissions, e-mails,
or otherwise. We will also reimburse brokers, banks, custodians, other nominees, and fiduciaries for forwarding these materials to their
principals to obtain the authorization for the execution of proxies.
How may stockholders submit matters for consideration at an annual
meeting?
The required notice must be in writing and received
by our Corporate Secretary at our principal executive offices not later than the close of business on the 90th day nor earlier
than the close of business on the 120th day prior to the first anniversary of the preceding year’s annual meeting. However,
in the event that the date of the annual meeting is convened more than 30 days before or more than 60 days after the first anniversary
of the preceding year’s annual meeting, or if no annual meeting were held in the preceding year, a stockholder’s notice must
be so received not later than the close of business on the later of (i) the 90th day prior to the scheduled date of such annual
meeting or (ii) the 10th day following the day on which public announcement of the date of such annual meeting was first made.
In addition, any stockholder proposal intended
to be included in the proxy statement for the next annual meeting of our stockholders in 2024 must also satisfy the requirements of SEC
Rule 14a-8 under the Exchange Act. If the date of the annual meeting is moved by more than 30 days from the date contemplated at the time
of the previous year’s proxy statement, then notice must be received within a reasonable time before we begin to print and send
proxy materials. If that happens, we will publicly announce the deadline for submitting a proposal in a press release or in a document
filed with the SEC. We intend to hold the 2025 annual meeting in June or July, 2025. Therefore, we intend to publicly announce the date
of the 2025 annual meeting and the Rule 14a-8 deadline in early 2025.
How can I know the voting results?
We plan to announce preliminary voting results
at the Annual Meeting and will publish final results in a Current Report on Form 8-K, or Form 8-K, to be filed with the SEC within four
business days following the Annual Meeting. If final voting results are not available to us in time to file a Form 8-K within four business
days after the Annual Meeting, we intend to file a Form 8-K to publish preliminary results and, within four business days after the final
results are known to us, file an additional Form 8-K to publish the final results.
PROPOSAL NO. 1 — ELECTION OF DIRECTORS
Our board of directors currently consists of seven
members.
Our certificate of incorporation and bylaws provide
that the authorized number of directors may be fixed from time to time by resolution of the majority of our board of directors. Our certificate
of incorporation provides that our directors may be removed only for cause by the affirmative vote of the holders of at least two-thirds
(2/3) of the outstanding shares then entitled to vote at an annual election of directors, and that any vacancy on our board of directors,
including a vacancy resulting from an enlargement of our board of directors, may be filled only by vote of a majority of our directors
then in office.
Our board of directors has nominated each of Jeffrey
Thramann, Brent Ness, Scott Breidbart, Steve Deitsch, David Neal, William Wesemann and Amanda Williams for election as directors at the
Annual Meeting. The nominees are presently directors, and each has indicated a willingness to continue to serve as a director, if elected.
If the nominees become unable or unwilling to serve, however, the proxies may be voted for a substitute nominee selected by our board
of directors.
Nominees for Election as Directors
The following table identifies our director nominees,
and sets forth their principal occupation and business experience during the last five years and their ages as of October 31, 2024.
| Name |
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Age |
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Position(s) held |
|
Served as a Director
Since |
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| Jeff Thramann, M.D. |
|
60 |
|
Executive Chairman and Director |
|
2020(1) |
| Brent Ness |
|
58 |
|
Chief Executive Officer, President and Director |
|
2021(2) |
| Scott Breidbart, M.D. |
|
68 |
|
Director |
|
(3) |
| Steve Deitsch |
|
53 |
|
Director |
|
(3) |
| David Neal |
|
53 |
|
Director |
|
(4) |
| William Wesemann |
|
68 |
|
Director |
|
(4) |
| Amanda Williams |
|
47 |
|
Director |
|
(3) |
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| (1) |
Dr. Thramann has been a director since 2020. He was appointed Executive Director as of March 2021, and became Executive Chairman as of April 21, 2022. |
| (2) |
Mr. Ness was appointed CEO and a director on September 15, 2021. |
| (3) |
Ms. Williams, Mr. Deitsch, and Dr. Breidbart have been directors since April 21, 2022. |
| (4) |
Mr. Wesemann and Mr. Neal have been directors since 2016. |
Jeff Thramann, M.D., Executive Chairman and
Director: Jeff Thramann has been a director since September, 2020. He was also an executive Director since March 2021, which
is an executive officer of the Company. He transitioned to Executive Chairman at the time of our April 2022 IPO. He oversees strategic
initiatives, capitalization and governance at the company. This includes day-to-day involvement in working with senior management to establish
the strategic vision of the Company, assist in KOL development, work with the Chief Executive Officer and Chief Financial Officer on financial
plans, clinical reimbursement and product strategies, and assisting the Chief Executive Officer in recruitment and hiring of senior executives
and the pursuit of business development activities. His responsibilities also include leading investor relations efforts, building the
board of directors and leading board meetings. Dr. Thramann is currently the founder and Executive Chairman of Auddia Inc. (NASDAQ: AUUD),
a technology company that is reinventing how consumers interact with audio through an AI platform that enables unique consumer experiences
across radio and podcast listening. Dr. Thramann founded Auddia Inc. in January 2012. In 2002, Dr. Thramann was the founder (and became
the chairman) of Lanx, LLC (“Lanx”). Lanx was an innovative medical device company focused on the spinal implant market that
created the interspinous process fusion space with the introduction of its patented Aspen product. Lanx was sold to Biomet, Inc., an international
orthopedic conglomerate, in November, 2013. Concurrent with Lanx, in July, 2006 Dr. Thramann was the founder and chairman of ProNerve,
LLC (“ProNerve”). ProNerve was a healthcare services company that provided monitoring of nerve function during high-risk surgical
procedures affecting the brain and spinal cord. ProNerve was sold to Waud Capital Partners, a private equity firm, in 2012. Prior to ProNerve
and concurrent with Lanx, Dr. Thramann was the founder and chairman of U.S. Radiosurgery (“USR”). USR is a healthcare services
company that provides advanced radiosurgical treatments for tumors throughout the body. USR became the largest provider of robotic guided
CyberKnife treatments of such tumors in the U.S. and was sold to Alliance Healthcare Services (NASDAQ: AIQ) in April, 2011. From July,
2001 through April, 2008, Dr. Thramann was the founder and senior partner of Boulder Neurosurgical Associates, a neurosurgical practice
serving Boulder County, Colorado. Dr. Thramann is the named inventor on over 100 U.S. and international issued and pending patents. He
completed his neurosurgical residency and complex spinal reconstruction fellowship at the Barrow Neurological Institute in Phoenix, AZ,
in June, 2001. He is a graduate of Cornell University Medical College in New York City and earned his Bachelor of Science degree in electrical
engineering management at the U. S. Military Academy in West Point, NY.
Brent Ness, Chief Executive Officer. Mr.
Ness became our Chief Executive Officer on September 15, 2021. From December 2019 through April 2021, he was a consultant and then became
President and Chief Commercial Officer of Cleerly, Inc. (“Cleerly”). Cleerly is a developer of an AI enabled non-invasive
digital care pathway aimed at improving clinicians understanding of their patients’ risk of sudden coronary death. At Cleerly, Mr.
Ness co-led efforts to create a partnership with Canon, Inc. who co-markets Cleerly solutions as part of their offerings. From March 2016
to December 2019, Mr. Ness was the Chief Operating Officer of Mighty Oak Medical (“Mighty Oak”) whose principal products progressed
from pre-FDA clearance through an international full market launch of their platform called FIREFLY. FIREFLY is a 3D Printed patient
specific solution that is intended to provide spine surgeons with a highly accurate alternative to navigation and robotic applications
in the spinal navigation space. FIREFLY involves the use of CT scans as the core data upon which sophisticated pre-surgical plans are
created along with guides and bone models. From 2014 through 2016, Mr. Ness was the Chief Commercial Officer of HeartFlow, Inc. (“Heartflow”).
HeartFlow is a medical technology company that created and developed a non-invasive cardiac test enabling physicians to make more informed
decisions for their patients with suspected coronary heart disease. Mr. Ness led the business from pre-FDA clearance through a global
expansion of early adopter sites. Along with the senior leadership team at HeartFlow, he deployed a strong clinical evidence-based approach
in the early launch of the SaaS platform to engage Key Opinion Leader Physicians and the third-party payer community. This resulted in
the issuance of Category III CPT Codes and multiple private payer coverage decisions. From 2008 through 2013, he was President of ProNerve,
LLC, (“ProNerve"). ProNerve is a provider of intraoperative neuromonitoring services which involves the use of a variety of
electro-physiological monitoring procedures during spine and brain surgery, to allow early warning and avoidance of injury to nervous
system structures. As President of ProNerve, Mr. Ness presided over a roll up of the highly fragmented Interoperative Nerve Monitoring
Industry. From 2004 to 2008, Mr. Ness served as Vice President- Global Sales and Marketing for Medtronic Navigation, a division of Medtronic,
Inc. Earlier in his career he was employed by GE Healthcare as Director of Corporate Accounts and for Philips North America as Vice President
of Sales Operations, which companies are suppliers of diagnostic imaging equipment.
Mr. Ness currently serves as an advisor to Mighty
Oak Medical, K2 Capital and Cleerly. Mr. Ness has a Bachelor’s Degree in Marketing from the University of North Dakota and an MBA
from the University of Colorado.
Scott Breidbart, M.D., Director: Dr.
Scott Breidbart has been consulting in the healthcare industry since November 2021. Before that, he was the Chief Medical Officer of Affinity
Health Plans from January 2018 until its purchase in November 2021. From October 2016 to January 2018, he was Chief Medical Officer of
Solera Health and from October 2015 to September 2016, he was the Chief Clinical Officer of Emblem Health. From November 2008 to October
2015, Mr. Breidbart served as the Chief Medical Officer of Empire BlueCross BlueShield, and from May 1998 to August 2008 he had various
roles in medical management for HealthNet. Dr. Breidbart practiced pediatric endocrinology for ten years on the faculty of New York Medical
College. He is Board Certified in Pediatrics and Pediatric Endocrinology and is licensed to practice medicine in NY. He holds a BA in
Mathematics from Yale, an MD from Columbia, and an MBA from Pace University. We believe Dr. Breidbart’s experience with medical
management and medical reimbursement matters provides him with the appropriate set of skills to serve as a member of our board of directors.
Steve Deitsch, Director: Steve
Deitsch is currently the CFO of OrganOx, a medical device company which is changing the paradigm in liver transplantation. He has extensive
strategic, operational, and financial leadership experience at both publicly traded and privately held companies. From September 2020
to April 2024, Mr. Deitsch served as Chief Financial Officer at Paragon 28, a medical device company focused on surgical implants for
the foot and ankle. From April 2017 to August 2019, Mr. Deitsch served as Senior Vice President and Chief Financial Officer of BioScrip,
Inc., which is now part of Option Care Health, Inc. (NASDAQ: BIOS). From August 2015 to April 2017, Mr. Deitsch served as Executive
Vice President, Chief Financial Officer and Corporate Secretary of Coalfire, Inc., a leading cyber-security firm owned by The Carlyle
Group. He served as the Chief Financial Officer of the Zimmer Biomet Spine, Bone Healing, and Microfixation business from July 2014 to
July 2015 and as Vice President Finance, Biomet Corporate Controller from February 2014 to July 2014. Mr. Deitsch was the Chief Financial
Officer of Lanx from September 2009 until it was acquired by Biomet in October 2013. From 2002 to 2009, Mr. Deitsch also served in various
senior financial leadership roles at Zimmer Holdings, Inc. (now part of Zimmer Biomet, Inc.), including Vice President Finance, Reconstructive
and Operations, and Vice President Finance, Europe. He is a director and audit committee chair of Auddia Inc. (NASDAQ: AUUD), since February
of 2021. Mr. Deitsch holds a B.S. in Accounting from Ball State University and has an in-active CPA license. We believe Mr. Deitsch’s
financial, management and healthcare experience provides him with the appropriate set of skills to serve as a member of our board of directors.
David Neal, Director: Mr. Neal
has been a director since September 2016. He is the founder and a current member of SC Capital 1 LLC which was formed in 2016. SC Capital
1 LLC is a securitized LLC formed to invest in breakthrough medical technologies and therapies. Also, from April 2015 to the present,
he has been a partner of Frontier Wealth Enterprises, LLC a financial services firm providing advice-based financial services to high-net
worth families. From 2000 to 2015, he held various positions with UBS, including Portfolio Manager and manager of a Regional Office in
Wichita Kansas. He was on the Hutchinson Regional Medical Center board of directors for 9 years and currently is a member of the board
of the Hutchinson Community Foundation. He holds a Bachelor of Sport Science degree from the University of Kansas and a Master of Management
Science degree from the John Cook School of Business at Saint Louis University. We believe Mr. Neal’s experience in medical technology
investment provides him with the appropriate set of skills to serve as a member of our board of directors.
William (Bill) Wesemann, Director: Mr.
Wesemann has been a director since 2016. Mr. Wesemann has been an independent businessman and investor since June 2002. Prior to 2002
his experience included serving in chief executive, sales leadership, and advisory roles at technology companies. Since 2004, he has been
a director of LivePerson (Nasdaq: LPSN), a global technology company that develops conversational commerce and AI software. He is also
a director of Stationhead, Inc. (commencing in 2019), a consumer social audio platform; and a director of Mylio, Inc (commencing in 2013)
a photo management company. Mr. Wesemann received a B.A. from Glassboro State College (Rowan University). We believe Mr. Wesemann’s
experience in technology investing provides him with the appropriate set of skills to serve as a member of our board of directors.
Amanda Williams, Director: Ms.
Williams has been Senior Vice President for Clinical and Regulatory at MedAlliance, a Cordis company, which is a healthcare company focused
on treating peripheral and coronary artery disease with the Selution drug coated balloon, since August 2023. From September 2018 to May
2023, she was the Senior Vice President of Clinical, Quality and Regulatory at ViewRay, Inc. (Nasdaq: VRAY), a healthcare company that
integrates real time MRI imaging of tumors with the delivery of high dose radiation for improved treatment accuracy. From December, 2017,
to September, 2018, she was the Head of Regulatory with the Image Guided Therapy Devices and Systems divisions of Philips. From July,
2010 to December, 2017 Ms. Sequira was the Senior Director (2010-2013) and Vice President (2013-2017) of Clinical and Regulatory with
The Spectranetics Corp., (now part of Philips), and from 2003 to 2010 she was Manager, and then Director of Regulatory of AGA Medical
Corp (now part of Abbott). Prior to these roles, she worked as a Regulatory Specialist with Vascular Solutions and as a Chemist with GE
– Osmonics. In these positions, she worked on a diverse range of products, including cardiovascular treatment, implantable heart
defect device, combination drug/device and large capital equipment (both imaging and treatment) devices. At Spectranetics, she led
teams that completed multiple global randomized clinical studies. She holds a Master of Science in Regulatory from Northeastern University
and a Bachelor of Science in Chemistry from the University of Minnesota. We believe Ms. Williams’ medical clinical and regulatory
matters provides her with the appropriate set of skills to serve as a member of our board of directors.
Vote Required and Board of Directors’ Recommendation
To be elected, the directors nominated via Proposal
No. 1 must receive a plurality of the votes properly cast on the proposal, meaning that the seven director nominees receiving the most
votes will be elected. You may vote FOR all the nominees, FOR any one of the nominees, WITHHOLD your vote from all the nominees or WITHHOLD
your vote from any one of the nominees. Votes that are withheld will not be included in the vote tally for the election of directors.
If your shares are held in “street name” by a broker, bank or other nominee, your broker, bank or other nominee does not have
authority to vote your unvoted shares held by the firm for the election of directors. As a result, any shares not voted by you will be
treated as a broker non-vote. Such broker non-votes will have no effect on the results of this vote.
The proxies will be voted in favor of the above
nominees unless a contrary specification is made in the proxy. The nominees have consented to serve as our directors if elected. However,
if the nominees are unable to serve or for good cause will not serve as a director, the proxies will be voted for the election of such
substitute nominee as our board of directors may designate.
The board of directors recommends voting “FOR”
the election of Jeffrey Thramann, Brent Ness, Scott Breidbart, Steve Deitsch, David Neal, William Wesemann and Amanda Williams as directors,
to serve for a term ending at the annual meeting of stockholders to be held in 2025.
Executive Officers Who Are Not Directors
The following table identifies our executive officers
who are not directors, and sets forth their current positions at Aclarion and their ages as of October 31, 2024.
| Name |
|
Age |
|
Position(s) held |
|
Served as an Officer Since |
| Executive Officers |
|
|
|
|
|
|
| John Lorbiecki |
|
61 |
|
Chief Financial Officer |
|
2021(1) |
| Ryan Bond |
|
53 |
|
Chief Strategy Officer |
|
2021(2) |
_______________
| (1) |
Mr. Lorbiecki was appointed Chief Financial Officer on October 1, 2021. |
| (2) |
Mr. Bond was appointed Chief Strategy Officer on September 15, 2021. |
John Lorbiecki, Chief Financial Officer:
Mr. Lorbiecki became our Chief Financial Officer on October 1, 2021. He has over 25 years of financial management and operational experience
which includes serving as the divisional CFO for two business units within Medtronic, Inc. From January 2019 through October 1, 2021,
Mr. Lorbiecki was a principal of Strategic Finance Solutions LLC, a financial consulting company. From April 2021 to October 2021, he
also advised Fusion Robotics LLC through their merger with Integrity Implants Inc., now doing business as Accelus Inc. From January 2020
through April 2021, Mr. Lorbiecki held the lead finance role at Honeybee Robotics, an aerospace company that designs and builds advanced
robotic systems. He led the financial dimensions of the strategic planning process, managed monthly project reviews to measure progress
and ensure economic targets were met, and oversaw monthly accounting activities. From March 2017 through July 2018, he served as Chief
Operating Officer at Colorado Therapeutics LLC, a medical startup focused on innovative biologic soft tissue repair products where he
was instrumental in completing the relocation of the company headquarters and increasing manufacturing capacity. From 1991 through 2017
he was with Medtronic, among the largest medical device companies in the world. He led sales operations, including pricing and contracting,
for the Cardiac Surgery Division, and moved through other business unit and corporate financial leadership roles. Mr. Lorbiecki has a
Bachelor’s Degree in Economics from the University of St. Thomas where he graduated magna cum laude and an MBA from the University
of Chicago Booth School of Business.
Ryan Bond, Chief Strategy Officer: Mr.
Bond became our Chief Strategy Officer in September 2021. From December 2018 to August 2021, he has been our Vice President, Business
Development, where he led business development, sales and marketing including a limited commercial launch of Aclarion’s cloud-based
SaaS with early adopters in the US, EU, and UK, Mr. Bond coordinated multiple research trials sponsored by our customers, where Aclarion’s
proprietary, adjunctive diagnostic technology is employed. Mr. Bond was instrumental in working with reimbursement consultants to gain
Category III CPT Codes for Aclarion with assigned APC rates and advocating to CMS for the removal of a long-standing non-coverage policy
for magnetic resonance spectroscopy (MRS, CPT Code 76390). From November 2014 to September 2018 Mr. Bond was Director, Healthcare Solutions
at NuVasive, a company in the global spine market. While at NuVasive, he led several strategic initiatives involving strategic partnerships,
channel development, pricing, contracting, and sales training. From 2005 to 2014, Mr. Bond was with Accelero Health Partners (“Accelero”),
a consulting firm focused on musculoskeletal service line development using a combination of strategic organizational development programs
and a proprietary cloud-based business intelligence tool that discretely measured a cadre of clinical, functional, operational, and volume-based
metrics, while simultaneously illustrating the interrelated cause-effect of each. In 2006, Accelero was acquired by Zimmer Holdings. Mr.
Bond serves on an Advisory Board to the College of Business at Ohio University, where he earned a Bachelor’s of Science Degree in
Engineering from the Russ College of Engineering and Technology.
The principal occupation and employment during
the past five years of each of our executive officers was carried on, in each case except as specifically identified above, with a corporation
or organization that is not a parent, subsidiary or other affiliate of us. There is no arrangement or understanding between any of our
executive officers and any other person or persons pursuant to which he was or is to be selected as an executive officer.
There are no material legal proceedings to which
any of our executive officers is a party adverse to us or our subsidiary or in which any such person has a material interest adverse to
us or our subsidiary.
PROPOSAL NO. 2 — RATIFICATION OF THE APPOINTMENT
OF
OF HAYNIE & COMPANY AS OUR INDEPENDENT
REGISTERED PUBLIC ACCOUNTING FIRM
FOR THE FISCAL YEAR ENDING DECEMBER 31, 2024
The audit committee of our board of directors has
appointed Haynie & Company as our independent registered public accounting firm for the fiscal year ending December 31, 2024. Aclarion’s
stockholders are being asked to ratify this appointment. Haynie & Company has served as Aclarion’s independent registered public
accounting firm since August 29, 2023.
The audit committee is solely responsible for selecting
Aclarion’s independent registered public accounting firm for the fiscal year ending December 31, 2024. Stockholder approval is not
required to appoint Haynie & Company as our independent registered public accounting firm. However, the board of directors believes
that submitting the appointment of Haynie & Company to the stockholders for ratification is good corporate governance. If the stockholders
do not ratify this appointment, the audit committee will reconsider whether to retain Haynie & Company. If the selection of Haynie
& Company is ratified, the audit committee, at its discretion, may direct the appointment of a different independent registered public
accounting firm at any time it decides that such a change would be in the best interest of Aclarion and its stockholders.
A representative of Haynie & Company is expected
to attend the Annual Meeting and will have an opportunity to make a statement if he or she desires to do so and to respond to appropriate
questions from our stockholders.
During the Company’s two most recent fiscal
years ended December 31, 2021 and 2022, and the subsequent interim period through the date of its engagement, the Company did not consult
with Haynie & Company regarding either of the following: (i) the application of accounting principles to a specified transaction,
either completed or proposed, or the type of audit opinion that might be rendered on the Company’s financial statements, and Haynie
& Company did not provide a written report or oral advice on any accounting, auditing or financial reporting issue that Haynie &
Company concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing or financial
reporting issue, or (ii) any matter that was either the subject of a disagreement, as defined in Item 304(a)(1)(iv) of Regulation S-K
and the related instructions, or a “reportable event,” as described in Item 304(a)(1)(v) of Regulation S-K.
Resignations of Daszkal Bolton LLP and CohnReznick LLP
The firm of Daszkal Bolton LLP, independent registered
public accounting firm, served as the independent registered public accounting firm for the Company from 2021 through May 11, 2023.
On March 8, 2023, the Company was advised by Daszkal
Bolton LLP had completed a combination agreement with CohnReznick LLP, and that Daszkal Bolton LLP would resign as the Company’s
independent registered public accounting firm.
On May 11,
2023, Daszkal Bolton LLP affirmed to the Company that it had resigned as the Company’s independent registered accounting firm. On
May 15, 2023, upon the approval of the audit committee, the Company engaged CohnReznick LLP as the Company’s new independent registered
public accounting firm for the Company’s fiscal year ending December 31, 2023 and interim periods.
Subsequently, the audit committee, after consultation
with the Company’s management and CohnReznick LLP, concluded that the Company’s previously issued audited financial statements
for the year ended December 31, 2022 would be restated and re-audited by Cohn Reznick LLP. The restated and re-audited financial statements
were filed with the SEC on June 12, 2023.
On July 10, 2023, the audit committee of the Company
was notified by CohnReznick LLP of its decision to resign as the independent registered public accounting firm of the Company effective
upon the filing of the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2023. Upon the filing of the Form
10-Q on August 25, 2023, CohnReznickLLP resigned.
Daszkal Bolton LLP’s reports on the Company’s
financial statements for the fiscal years ended December 31, 2021 and 2022 did not contain an adverse opinion or a disclaimer of opinion,
and were not qualified or modified as to uncertainty, audit scope, or accounting principles. The reports had been prepared assuming that
the Company would continue as a going concern and included an explanatory paragraph regarding the Company’s ability to continue
as a going concern as result of recurring loses and a deficiency in shareholders’ equity.
In addition, during the Company’s two most
recent fiscal years ended December 31, 2021 and 2022, and the subsequent interim period through the effective date of Daszkal Bolton LLP’s
resignation, there were (i) no disagreements (as described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) between
the Company and Daszkal Bolton LLP on any matter of accounting principles or practices, financial statement disclosure, or auditing scope
or procedure, which disagreements, if not resolved to Daszkal Bolton LLP’s satisfaction, would have caused Daszkal Bolton LLP to
make reference to the subject matter of disagreement in connection with its reports on the Company’s consolidated financial statements
for such years; and (ii) no “reportable events” within the meaning of Item 304(a)(1)(v) of Regulation S-K, except that Daszkal
Bolton LLP advised the Company of material weaknesses in its internal control over financial reporting as of December 31, 2021 and 2022.
During the
Company’s two most recent fiscal years ended December 31, 2021 and 2022, and the subsequent interim period through the date of its
engagement, the Company did not consult with CohnReznick LLP regarding either of the following: (i) the application of accounting principles
to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on the Company’s financial
statements, and CohnReznick LLP did not provide a written report or oral advice on any accounting, auditing or financial reporting issue
that CohnReznick LLP concluded was an important factor considered by the Company in reaching a decision as to the accounting, auditing
or financial reporting issue, or (ii) any matter that was either the subject of a disagreement, as defined in Item 304(a)(1)(iv) of Regulation
S-K and the related instructions, or a “reportable event,” as described in Item 304(a)(1)(v) of Regulation S-K.
The Company engaged CohnReznick LLP as its independent
registered public accounting firm on May 15, 2023. Since May 15, 2023 through the effective date of CohnReznick LLP’s resignation,
there were (i) no disagreements (as described in Item 304(a)(1)(iv) of Regulation S-K and the related instructions) between the Company
and CohnReznick LLP on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedure,
which, if not resolved to CohnReznick LLP’s satisfaction, would have caused CohnReznick LLP to make reference thereto in its reports
on the financial statements for such period; and (ii) no “reportable events” within the meaning of Item 304(a)(1)(v) of Regulation
S-K, except that CohnReznick advised the Company of material weaknesses in its internal control over financial reporting as of March 31,
2023.
Independent Registered Public Accounting
Firm Fees
The table below presents fees for professional
audit and other services rendered by Daszkal Bolton LLP for the fiscal years 2023 and 2022:
| | |
2023 | |
2022 |
| Audit fees(1) | |
$ | – | | |
$ | 127,886 | |
| Tax fees | |
| – | | |
| – | |
| All other fees | |
| – | | |
| – | |
| Total fees | |
$ | – | | |
$ | 127,886 | |
The table below presents fees for professional
audit and other services rendered by CohnReznick LLP for the fiscal years 2023 and 2022:
| | |
2023 | |
2022 |
| Audit fees(1) | |
$ | 113,305 | | |
$ | 30,000 | |
| Tax fees | |
| – | | |
| – | |
| All other fees | |
| – | | |
| – | |
| Total fees | |
$ | 113,305 | | |
$ | 30,000 | |
The table below presents fees
for professional audit and other services rendered by Haynie & Company for the fiscal years 2023 and 2022:
| | |
2023 | |
2022 |
| Audit fees(1) | |
$ | 82,768 | | |
$ | – | |
| Tax fees | |
| – | | |
| – | |
| All other fees | |
| – | | |
| – | |
| Total fees | |
$ | 82,768 | | |
$ | – | |
| (1) |
Audit fees consist of fees for the audit of our annual financial statements and the review of our interim financial statements. Audit fees also include the services that an independent auditor would customarily provide in connection with statutory requirements, regulatory filings, and similar engagements for the fiscal year, such as comfort letters, attest services, consents, and assistance with review of documents filed with the SEC. |
Audit Committee Pre-approval Policy and Procedures
Our audit committee has adopted policies and procedures
relating to the approval of all audit and non-audit services that are to be performed by our independent registered public accounting
firm. This policy provides that we will not engage our independent registered public accounting firm to render audit or non-audit services
unless the service is specifically approved in advance by our audit committee or the engagement is entered into pursuant to the pre-approval
procedure described below.
From time to time, our audit committee may pre-approve
specified types of services that are expected to be provided to us by our independent registered public accounting firm during the next
12 months. Any such pre-approval details the particular service or type of services to be provided and is also generally subject to a
maximum dollar amount.
During fiscal years 2023 and 2022, no services
were provided to us by Daszkal Bolton LLP and CohnReznick LLP other than in accordance with the pre-approval policies and procedures described
above.
Vote Required and Board of Directors’ Recommendation
The affirmative vote of a majority of the shares
of common stock present in person, or represented by proxy, and entitled to vote at the Annual Meeting is required to ratify the appointment
of our independent public accountants. Abstentions will be treated as shares present and entitled to vote and will therefore have the
same effect as a vote against this proposal.
If your shares are held in “street name”
by a broker, bank or other nominee, your broker, bank or other nominee has authority to vote your unvoted shares held by the firm on this
proposal. If your broker, bank or other nominee does not exercise this authority, such broker non-votes will have no effect on the results
of this vote.
The board of directors recommends voting “FOR”
Proposal No. 2 to ratify the appointment of Haynie & Company as Aclarion’s independent registered public accounting firm for
the fiscal year ending December 31, 2024.
PROPOSAL NO. 3 — APPROVAL OF ELOC AMENDMENT
ISSUANCE PROPOSAL
General
Our board has approved, subject to stockholder
approval, an amendment (the “ELOC Amendment”) to the Company’s existing common stock purchase agreement dated as of
October 9, 2023, by and between the Company and White Lion Capital, LLC (“White Lion”) (the “Purchase Agreement”).
Upon stockholder approval of the ELOC Amendment, the Company will able to potentially issue the full amount of shares authorized under
the Purchase Agreement (as amended pursuant to the ELOC Amendment). Our board is asking stockholders to approve the ELOC Amendment.
The ELOC Amendment makes the following
changes to the existing Purchase Agreement:
| 1. | The ELOC Amendment extends the expiration date of the Purchase Agreement from December 31, 2024 to
December 31, 2025. |
| 2. | The ELOC Amendment adds certain additional methods of pricing the shares that may be sold by the Company
under the Purchase Agreement. |
| 3. | In consideration for the commitments of White Lion under the amended Purchase Agreement, the Company
has agreed to issue to White Lion [***] shares of Common Stock (the “Commitment Shares”), having a value of $[***] based upon
the closing sale price of our common stock on November [***], 2024. |
No other changes to the Purchase Agreement
have been proposed or approved.
Reason for the ELOC Amendment
Under the Purchase Agreement, the Company
has the right, but not the obligation to require White Lion to purchase, from time to time, up to $10,000,000 in aggregate gross purchase
price of newly issued shares of the Company’s common stock, subject to certain limitations and conditions set forth in the Purchase
Agreement. Through September 30, 2024, the Company has issued shares to White Lion for total proceeds of $3,216,981, leaving approximately
$6.8 million of future share sales available under the Purchase Agreement. The Purchase Agreement currently expires on December 31, 2024.
The board believes that extending the
term of the Purchase Agreement will enhance the Company’s ability to raise additional capital over the coming year. In addition,
the ELOC Amendment provides the Company a greater range of pricing options for shares that it may sell to White Lion in the future.
Terms of the Purchase Agreement (as amended by the ELOC Amendment)
Pursuant to the Purchase Agreement, subject to
specified terms and conditions, the Company may sell to White Lion up to $10 million (the “Investment Amount”) of shares of
common stock (the “Purchase Notice Shares”) from time to time during the term of the Purchase Agreement (the “Equity
Line of Credit”). In connection with the Equity Line of Credit, the Company also agreed to file a registration statement with the
SEC covering the resale of shares of common stock issued or sold to White Lion under the Purchase Agreement (the “Registration Statement”).
In consideration for the commitments of White Lion
under the ELOC Amendment, the Company will issue to White Lion [***] shares of Common Stock (the “Commitment Shares”), having
a value of $[***] based upon the closing sale price of our common stock on November [***], 2024.
The Company cannot issue any additional shares
to White Lion until the date that the Registration Statement covering the resale of shares of common stock that have been and may in the
future be issued to White Lion under the Purchase Agreement, which the Company agreed to file with the SEC in connection with the Equity
Line of Credit, is declared effective by the SEC and a final prospectus in connection therewith is filed and all of the other conditions
set forth in the Purchase Agreement are satisfied (such date, the “Commencement Date”).
Subject to
the satisfaction of certain customary conditions, the Company’s right to sell shares to White Lion will commence on the Commencement
Date and extend until December 31, 2025, unless the Company has exercised its right in full to sell shares to White Lion under the Purchase
Agreement prior to such date (the period beginning on the effective date and ending on the earlier of such dates, the “Commitment
Period”). During such term, subject to the terms and conditions of the Purchase Agreement, the Company shall notify (such notice,
a “Purchase Notice”) White Lion when the Company exercises its right to sell shares (the effective date of such notice, a
“Notice Date”). The Purchase Notice may be an Accelerated Purchase Notice, a Fixed Purchase Notice, a Pre-Market Purchase
Notice, a Rapid Purchase Notice or a VWAP Purchase Notice, each as described below.
The number of shares sold pursuant to any such
notice may not exceed the lesser of (i) 30% of the Average Daily Trading Volume for the common stock traded on Nasdaq and (ii) $1,000,000
divided by the highest closing price of the common stock over the most recent five business days immediately preceding receipt of the
applicable Purchase Notice from the Company, and can be increased at any time at the sole discretion of White Lion, up to 9.99% of the
outstanding shares of the Company.
Under an Accelerated Purchase Notice, the purchase
price to be paid by White Lion for any such shares will equal the lowest traded price of the common stock during the 15 minutes period
prior to receipt of the applicable Purchase Notice multiplied by 85%; provided, however, if the delivery of the applicable Purchase Notice
Shares is not initiated and completed by the Company’s transfer agent by 2:00 pm Pacific Time on the applicable Notice Date, the
purchase price shall mean the lowest traded price of the Company’s common stock on the entire Accelerated Purchase Notice Date.
Under a Fixed Purchase Notice, the purchase price to be paid by White Lion for any such shares will equal 85% of lowest daily VWAP of
the common stock during a period of five consecutive business days prior to, ending on and including the applicable Notice Date. Under
a Pre-Market Purchase Notice, the purchase price to be paid by White Lion for any such shares will equal the lowest traded price of the
common stock commencing on the Pre-Market Purchase Notice Date, between 12:00 am Pacific Time and ending at 6:30am Pacific Time; provided,
however, if the delivery of the applicable Purchase Notice Shares is not initiated and completed by the Company’s transfer agent
by 1:00 pm Pacific Time on the applicable Notice Date, the Pre-Market Purchase Price shall mean the lowest traded price of the Company’s
common stock on the entire Pre-Market Purchase Notice Date. Under a VWAP Purchase Notice, the purchase price to be paid by White Lion
will equal 90% of the VWAP of the common stock during the two consecutive business days commencing on and including the applicable Notice
Date. Under a Rapid Purchase Notice, the purchase price to be paid by White Lion will equal 85% of the VWAP of the common stock on the
applicable Notice Date, unless notice is provided after 9:00 a.m. New York time on any business day, in which case the purchase price
to be paid by White Lion will equal the lowest traded price of the Company’s common stock on the applicable Notice Date.
The Company may terminate the Purchase Agreement
at any time in the event of a material breach of the Common Stock Purchase Agreement by White Lion, which shall be effected by written
notice being sent by the Company to White Lion. In addition, the Purchase Agreement shall automatically terminate on the earlier of (i)
the end of the Commitment Period or (ii) the date that, pursuant to or within the meaning of any bankruptcy law, the Company commences
a voluntary case or any person commences a proceeding against the Company, a custodian is appointed for the Company or for all or substantially
all of its property or the Company makes a general assignment for the benefit of its creditors.
The Purchase Agreement also prohibits the Company
from directing White Lion to purchase any shares of common stock if those shares, when aggregated with all other shares of common stock
then beneficially owned by White Lion and its affiliates, would result in White Lion and its affiliates having beneficial ownership, at
any single point in time, of more than 9.99% of the then total outstanding shares of common stock.
The Company’s net proceeds under the Purchase
Agreement will depend on the frequency of sales and the number of shares sold to White Lion and the prices at which the Company sells
shares to White Lion. The Company expects that any net proceeds it receives from such sales to White Lion will be used for general corporate
purposes, including working capital.
Nasdaq
Because our common stock is traded on the Nasdaq
Capital Market, we are subject to the Nasdaq Listing Rules, including Rule 5635(d).
Pursuant to Listing Rule 5635(d), stockholder approval
is required prior to the issuance of securities in connection with a transaction (or a series of related transactions) other than a public
offering involving the sale, issuance or potential issuance of common stock (or securities convertible into or exercisable for common
stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for less than the “Minimum
Price” as defined in the Nasdaq Listing Rules. The Company may not issue or sell to White Lion under the Purchase Agreement more
than 19.99% of the shares of the common stock outstanding immediately prior to the execution of the Purchase Agreement unless (i) stockholder
approval is obtained or (ii) the issuances and sales of common stock pursuant to the Purchase Agreement are not deemed to be less than
the Minimum Price.
Additional Information
This summary is intended to provide you with basic
information concerning the Purchase Agreement, the ELOC Amendment and the Equity Line of Credit. The full text of the ELOC Amendment was
filed as an exhibit to our Current Report on Form 8-K filed with the SEC on November [***], 2024 (the “November [***]
Form 8-K”). The November [***] Form 8-K and the documents filed as exhibits thereto are incorporated herein by reference.
Effect on Current Stockholders if the ELOC Amendment Issuance Proposal
is Approved
Each additional share of our common stock that
would be issuable to White Lion, would have the same rights and privileges as each share of our currently outstanding common stock. The
issuance of shares of our common stock to White Lion pursuant to the terms of the Purchase Agreement will not affect the rights of the
holders of our outstanding common stock, but such issuances will have a dilutive effect on the existing stockholders, including the voting
power and economic rights of the existing stockholders, and may result in a decline in our stock price or greater price volatility. Further,
any sales in the public market of our shares of common stock issuable to White Lion could adversely affect prevailing market prices of
our shares of common stock.
Effect on Current Stockholders if the ELOC Amendment Issuance Proposal
is Not Approved
The Company is not seeking the approval of its
stockholders to authorize its entry into the Purchase Agreement or the ELOC Amendment, as the Company has already done so and such documents
already are binding obligations of the Company. The failure of the Company’s stockholders to approve this Proposal No. 3 will not
negate the existing terms of the documents, which will remain binding obligations of the Company.
If the stockholders do not approve this Proposal
No. 3, the Company will be limited in its ability to issue Purchase Notice Shares pursuant to the Purchase Agreement because the Purchase
Agreement would terminate on December 31, 2024. The board and the management of the Company believe that the potential to use the Equity
Line of Credit would provide the Company flexibility in how it implements its business plans and ultimately generates value for its stockholders.
Vote Required and Board of Directors’ Recommendation
The affirmative vote of a majority of the shares
of common stock present in person, or represented by proxy, and entitled to vote at the Annual Meeting is required for the approval of
this Proposal 3. Abstentions will be treated as shares present and entitled to vote and will therefore have the same effect as a vote
against this proposal.
If your shares are held in “street name”
by a broker, bank or other nominee, your broker, bank or other nominee does not have authority to vote your unvoted shares held by the
firm on this Proposal 3. As a result, any shares not voted by you will be treated as a broker non-vote. Such broker non-votes will have
no effect on the results of the vote on Proposal 3.
The board of directors recommends voting “FOR”
Proposal No. 3 to approve the ELOC Amendment Issuance Proposal.
PROPOSAL NO. 4 — APPROVAL OF SERIES B
PREFERRED ISSUANCE PROPOSAL
Our stockholders are being asked to approve the
issuance of all of the shares of common stock which are in excess of 19.99% (or [***] shares of common stock) of the shares of the common
stock outstanding immediately prior to August 14, 2024 (the date of the execution of the exchange agreement related to our Series B Convertible
Preferred Stock financing (the “Series B Preferred Financing”). Upon stockholder approval, the Company will able to issue
more than 19.99% of the shares of the common stock outstanding pursuant to the Series B Preferred Financing without further action from
the stockholders and without violating applicable Nasdaq rules.
Series B Convertible
Preferred Stock Financing
On
August 14, 2024, we entered into an exchange agreement with accredited investor note holders to exchange and cancel approximately $930,000
of principal and accrued interest on certain outstanding notes of the Company for 930 shares of newly issued Series B convertible preferred
stock (“Series B Preferred Stock”) at a purchase price of $1,000 per share of Series B Preferred Stock.
The
Series B Preferred Stock is convertible into Common Stock at an initial conversion price (“Conversion Price”) of $0.234 per
share of common stock.
Terms of the Series
B Preferred Stock
Dividends
Holders of the Series B Preferred Stock will be
entitled to dividends in the amount of 10% per annum, payable quarterly.
The Company has the option to pay dividends on
the Series B Preferred Stock in additional shares of common stock. If the Company elects to pay in the form of common stock, the number
of dividend shares to be issued shall be calculated by using a “Dividend Conversion Price” equal to the lower of (i) the then
applicable Series B Conversion Price as in effect on the applicable dividend date, or (ii) 90% of the lowest VWAP of the common stock
during the five (5) consecutive trading day period ending and including the trading day immediately preceding the applicable dividend
date.
The Company also has the option to cumulate or
“capitalize” the dividends, in which case the accrued dividend amount shall be added to the stated value of each share of
Series B Preferred Stock.
Conversion Rights; Anti-Dilution Adjustments
The stated value of each share of Series B Preferred
Stock (including all the unpaid dividends and other amounts payable on the Series B Preferred Stock) will be convertible into common stock
at an initial fixed Conversion Price of $0.234 per share of common stock. The Series B Preferred Stock may be converted into shares of
common stock at any time at the option of the holder. The Series B Preferred Stock may also be converted into shares of common stock at
the option of the Company if the closing price of the common stock exceeds 300% of the Conversion Price for 20 consecutive trading days.
The Conversion Price of the Series B Preferred
Stock is subject to certain anti-dilution adjustments, including in the event of any stock splits or combinations, certain dividends and
distributions, reclassification, exchange or substitution of the Company’s common stock or in the event that the Company grants,
issues or sells (or enters into any agreement to grant, issue or sell), or is deemed to have granted, issued or sold, any shares of common
stock for a consideration per share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect immediately
prior to such granting, issuance or sale or deemed granting, issuance or sale (the foregoing a “Dilutive Issuance”) Immediately
after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price.
Defaults; Triggering Events; Alternate Conversion
Price
The Series B Preferred Stock Certificate of Designations
contains customary events of default, or “Triggering Events”, including, among others, (i) certain events of bankruptcy, insolvency
or reorganization; (ii) failure to comply with the listing rules of Nasdaq; (iii) certain breaches of the transaction agreements related
to this financing; and (iv) any of the shares of the Series B Preferred Stock remaining outstanding on or after August 14, 2026.
Upon the occurrence of a Triggering Event, (i)
the dividend rate on the Series B Preferred Stock will increase to 18%, and (ii) the Conversion Price then in effect will be adjusted
to an “Alternate Conversion Price” equal to the lowest of (i) the applicable Conversion Price as then in effect, and (ii)
the greater of (x) the “Floor Price” of $0.0468 and (y) 80% of the lowest VWAP of the common stock during the five (5) consecutive
trading day period immediately preceding the delivery or deemed delivery of the applicable conversion notice,
Ownership, Exercise and Conversion Limitations
The holders will not be able to receive shares
upon the conversion of the Series B Preferred Stock, unless prior stockholder approval is obtained, if (i) the number of shares to be
issued would exceed 20% of the Company’s outstanding number of shares at a discount to the applicable Nasdaq Minimum Price or (ii)
the number of shares to be issued to any holder would result in in a Change of Control within the meaning of Nasdaq Rule 5635(b).
The Company shall not effect the conversion of
any of the Series B Preferred Stock held by a holder, and such holder shall not have the right to convert any of the Series B Preferred
Stock held by such holder to the extent that after giving effect to such conversion, such holder would beneficially own in excess of 4.99%
(the “Maximum Percentage”) of the shares of common stock outstanding immediately after giving effect to such conversion.
Additional Information
The foregoing summaries of the Series B Preferred
Stock do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached as exhibits to our
Current Report on Form 8-K filed August 14, 2024, which are incorporated herein by reference.
Purpose of this Proposal 4
Because our common stock is traded on the Nasdaq
Capital Market, we are subject to the Nasdaq Listing Rules, including Rule 5635(d).
Pursuant to Listing Rule 5635(d), stockholder approval
is required prior to the issuance of securities in connection with a transaction (or a series of related transactions) other than a public
offering involving the sale, issuance or potential issuance of common stock (or securities convertible into or exercisable for common
stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for less than the “Minimum
Price” as defined in the Nasdaq Listing Rules (the “Exchange Cap”).
The initial conversion price of the Series B Preferred
Stock exceeds the Nasdaq Minimum Price. Due to the potential conversion price adjustments described above, however, such conversion price
may be adjusted below the Minimum Price under certain circumstances. In addition, the number of shares issuable upon the conversion of
the Series B Preferred Stock exercise would proportionately increase if the conversion price is reduced.
Accordingly, we are required to get stockholder
approval under Nasdaq Listing Rule 5635(d) for any issuances above the Exchange Cap related to the Series B Preferred Financing.
Potential Consequences if this Proposal 4 is
Not Approved
The Company is not seeking the approval of our
stockholders to authorize our entry into the Series B Preferred Financing or the issuance of the Series B Preferred Stock in connection
therewith, as such financing has already been completed and these securities have already been issued. We are only asking for approval
to allow the issuance of shares of our common stock upon conversion of the Series B Preferred Stock in excess of the Exchange Cap.
Potential Adverse Effects of the Approval of
this Proposal 4
If this Proposal No. 4 is approved, existing stockholders
will suffer dilution in their ownership interests in the future as a result of the potential issuance of shares of common stock upon conversion
of the Series B Preferred Stock. Assuming we complete dilutive issuances in the future that reduce the conversion price of the Series
B Preferred Stock and the number of shares of common stock potentially issuable upon the conversion of the Series B Preferred Stock would
increase. The issuance of a large number of shares would dilute your ownership interest in our company. In addition, the sale into the
public market of these shares also could materially and adversely affect the market price of our common stock.
Vote Required and Board of Directors’ Recommendation
The affirmative vote of a majority of the shares
of common stock present in person, or represented by proxy, and entitled to vote at the Annual Meeting is required for the approval of
this Proposal 4. Abstentions will be treated as shares present and entitled to vote and will therefore have the same effect as a vote
against this proposal.
If your shares are held in “street name”
by a broker, bank or other nominee, your broker, bank or other nominee does not have authority to vote your unvoted shares held by the
firm on this Proposal 4. As a result, any shares not voted by you will be treated as a broker non-vote. Such broker non-votes will have
no effect on the results of the vote on Proposal 4.
The board of directors recommends voting “FOR”
Proposal No. 4 to approve the Series B Preferred Issuance Proposal.
PROPOSAL NO. 5 — APPROVAL OF SERIES C
PREFERRED ISSUANCE PROPOSAL
Our stockholders are being asked to approve the
issuance of all of the shares of common stock which are in excess of 19.99% (or [***] shares of common stock) of the shares of the common
stock outstanding immediately prior to September 30, 2024 (the date of the execution of the transaction agreements related to our $1.0
million Series C Convertible Preferred Stock and Warrants financing (the “Series C Preferred/Warrants Financing”). Upon stockholder
approval, the Company will able to issue more than 19.99% of the shares of the common stock outstanding pursuant to the Series C Preferred/Warrants
Financing without further action from the stockholders and without violating applicable Nasdaq rules.
$1.0 Million Convertible
Preferred Stock and Warrants Financing
On
September 30, 2024, we entered into a securities purchase agreement with accredited investors for a convertible preferred stock and warrants
financing. The Company received $1,000,000 of gross proceeds in connection with the closing of this financing.
At the closing, the Company issued 1,000 shares
of Series C convertible preferred stock (“Series C Preferred Stock”) at a purchase price of $1,000 per share of Series C Preferred
Stock. The Series C Preferred Stock is convertible into common stock at an initial conversion price (“Conversion Price”) of
$0.1759 per share of common stock. The Company also issued warrants (“Series C Warrants”) exercisable for 5,685,048 shares
of common stock with a five year term and an initial exercise price of $0.1759 per share.
Terms of the Series
C Preferred Stock
Dividends
Holders of the Series C Preferred Stock will be
entitled to dividends in the amount of 10% per annum, payable quarterly.
The Company has the option to pay dividends on
the Series C Preferred Stock in additional shares of common stock. If the Company elects to pay in the form of common stock, the number
of dividend shares to be issued shall be calculated by using a “Dividend Conversion Price” equal to the lower of (i) the then
applicable Series C Conversion Price as in effect on the applicable dividend date, or (ii) 90% of the lowest VWAP of the common stock
during the five (5) consecutive trading day period ending and including the trading day immediately preceding the applicable dividend
date.
The Company also has the option to cumulate or
“capitalize” the dividends, in which case the accrued dividend amount shall be added to the stated value of each share of
Series C Preferred Stock.
Conversion Rights; Anti-Dilution Adjustments
The stated value of each share of Series C Preferred
Stock (including all the unpaid dividends and other amounts payable on the Series C Preferred Stock) will be convertible into common stock
at an initial fixed Conversion Price of $0.1759 per share of common stock. The Series C Preferred Stock may be converted into shares of
common stock at any time at the option of the holder. The Series C Preferred Stock may also be converted into shares of common stock at
the option of the Company if the closing price of the common stock exceeds 300% of the Conversion Price for 20 consecutive trading days.
The Conversion Price of the Series C Preferred
Stock is subject to certain anti-dilution adjustments, including in the event of any stock splits or combinations, certain dividends and
distributions, reclassification, exchange or substitution of the Company’s common stock or in the event that the Company grants,
issues or sells (or enters into any agreement to grant, issue or sell), or is deemed to have granted, issued or sold, any shares of common
stock for a consideration per share (the “New Issuance Price”) less than a price equal to the Conversion Price in effect immediately
prior to such granting, issuance or sale or deemed granting, issuance or sale (the foregoing a “Dilutive Issuance”) Immediately
after such Dilutive Issuance, the Conversion Price then in effect shall be reduced to an amount equal to the New Issuance Price.
Defaults; Triggering Events; Alternate Conversion
Price
The Series C Preferred Stock Certificate of Designations
contains customary events of default, or “Triggering Events”, including, among others, (i) certain events of bankruptcy, insolvency
or reorganization; (ii) failure to comply with the listing rules of Nasdaq; (iii) certain breaches of the transaction agreements related
to this financing; and (iv) any of the shares of the Series C Preferred Stock remaining outstanding on or after September 30, 2026.
Upon the occurrence of a Triggering Event, (i)
the dividend rate on the Series C Preferred Stock will increase to 18%, and (ii) the Conversion Price then in effect will be adjusted
to an “Alternate Conversion Price” equal to the lowest of (i) the applicable Conversion Price as then in effect, and (ii)
the greater of (x) the “Floor Price” of $0.0352 and (y) 80% of the lowest VWAP of the common stock during the five (5) consecutive
trading day period immediately preceding the delivery or deemed delivery of the applicable conversion notice,
Terms of the Warrants
In connection with the closing, the Company issued
to the investors Series C Warrants exercisable for 5,685,049 shares of common stock with a five year term and an initial exercise price
of $0.1759 per share.
The exercise price of the Series C Warrants is
subject to certain anti-dilution adjustments, including in the event of any stock splits or combinations, certain dividends and distributions,
reclassification, exchange or substitution of the Company’s common stock or in the event that the Company grants, issues or sells
(or enters into any agreement to grant, issue or sell), or is deemed to have granted, issued or sold, any shares of common stock for a
consideration per share (the “New Issuance Price”) less than a price equal to the exercise price in effect immediately prior
to such granting, issuance or sale or deemed granting, issuance or sale (the foregoing a “Dilutive Issuance”). Immediately
after such Dilutive Issuance, the exercise price then in effect shall be reduced to an amount equal to the New Issuance Price.
Ownership, Exercise and Conversion Limitations
The holders will not be able to receive shares
upon exercise of the Series C Warrants or the conversion of the Series C Preferred Stock, unless prior stockholder approval is obtained,
if (i) the number of shares to be issued would exceed 20% of the Company’s outstanding number of shares at a discount to the applicable
Nasdaq Minimum Price or (ii) the number of shares to be issued to any holder would result in in a Change of Control within the meaning
of Nasdaq Rule 5635(b).
The Company shall not effect the conversion of
any of the Series C Preferred Stock or the exercise of any of the Series C Warrants held by a holder, and such holder shall not have the
right to convert any of the Series C Preferred Stock or exercise any of the Series C Warrants held by such holder to the extent that after
giving effect to such conversion or exercise, such holder would beneficially own in excess of 4.99% (the “Maximum Percentage”)
of the shares of common stock outstanding immediately after giving effect to such conversion or exercise.
Additional Information
The foregoing summaries of the Series C Preferred
Stock and the Series C Warrants do not purport to be complete and are subject to, and qualified in their entirety by, such documents attached
as exhibits to our Current Report on Form 8-K filed October 1, 2024, which are incorporated herein by reference.
Purpose of this Proposal 5
Because our common stock is traded on the Nasdaq
Capital Market, we are subject to the Nasdaq Listing Rules, including Rule 5635(d).
Pursuant to Listing Rule 5635(d), stockholder approval
is required prior to the issuance of securities in connection with a transaction (or a series of related transactions) other than a public
offering involving the sale, issuance or potential issuance of common stock (or securities convertible into or exercisable for common
stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding before the issuance for less than the “Minimum
Price” as defined in the Nasdaq Listing Rules (the “Exchange Cap”).
The initial conversion price of the Series C Preferred
Stock and the initial exercise price of the Series C Warrants exceed the Nasdaq Minimum Price. Due to the potential conversion and exercise
price adjustments described above, however, such conversion and exercise prices may be adjusted below the Minimum Price under certain
circumstances. In addition, the number of shares issuable upon the conversion of the Series C Preferred Stock exercise would proportionately
increase if the conversion price is reduced.
Accordingly, we are required to get stockholder
approval under Nasdaq Listing Rule 5635(d) for any issuances above the Exchange Cap related to the Series C Preferred/Warrants Financing.
Potential Consequences if this Proposal 5 is
Not Approved
The Company is not seeking the approval of our
stockholders to authorize our entry into the Series C Preferred/Warrants Financing or the issuance of the Series C Preferred Stock and
the Series C Warrants in connection therewith, as such financing has already been completed and these securities have already been issued.
We are only asking for approval to allow the issuance of shares of our common stock upon conversion of the Series C Preferred Stock and
exercise of the Series C Warrants in excess of the Exchange Cap.
Potential Adverse Effects of the Approval of
this Proposal 5
If this Proposal No. 5 is approved, existing stockholders
will suffer dilution in their ownership interests in the future as a result of the potential issuance of shares of common stock upon conversion
of the Series C Preferred Stock and the exercise of the Series C Warrants. Assuming we complete dilutive issuances in the future that
reduce the conversion price of the Series C Preferred Stock, the number of shares of common stock potentially issuable upon the conversion
of the Series C Preferred Stock would increase. The issuance of a large number of shares would dilute your ownership interest in our company.
In addition, the sale into the public market of these shares also could materially and adversely affect the market price of our common
stock.
Vote Required and Board of Directors’ Recommendation
The affirmative vote of a majority of the shares
of common stock present in person, or represented by proxy, and entitled to vote at the Annual Meeting is required for the approval of
this Proposal 5. Abstentions will be treated as shares present and entitled to vote and will therefore have the same effect as a vote
against this proposal.
If your shares are held in “street name”
by a broker, bank or other nominee, your broker, bank or other nominee does not have authority to vote your unvoted shares held by the
firm on this Proposal 5. As a result, any shares not voted by you will be treated as a broker non-vote. Such broker non-votes will have
no effect on the results of the vote on Proposal 5.
The board of directors recommends voting “FOR”
Proposal No. 5 to approve the Series C Preferred Issuance Proposal.
PROPOSAL NO. 6 —
REVERSE STOCK SPLIT PROPOSAL
Our board of directors has approved an amendment
to our Certificate of Incorporation, as amended, to combine the outstanding shares of our common stock into a lesser number of outstanding
shares (a “Reverse Stock Split”). If approved by the stockholders as proposed, the board of directors would have the sole
discretion to effect the Reverse Stock Split, if at all, within one (1) year of the date the proposal is approved by stockholders and
to fix the specific ratio for the combination within a range of one-for-five (1-for-5) to a maximum of a one-for-four hundred (1-for-400)
split. The board of directors has the discretion to abandon the amendment and not implement the Reverse Stock Split.
If approved by our stockholders, this proposal
would permit (but not require) the board of directors to effect a Reverse Stock Split of the outstanding shares of our common stock within
one (1) year of the date the proposal is approved by stockholders, at a specific ratio within a range of one-for-five (1-for-5) to a maximum
of a one-for-four hundred (1-for-400) split, with the specific ratio to be fixed within this range by the board of directors in its sole
discretion without further stockholder approval. We believe that enabling the board of directors to fix the specific ratio of the Reverse
Stock Split within the stated range will provide us with the flexibility to implement it in a manner designed to maximize the anticipated
benefits for our stockholders.
In fixing the ratio, the board of directors may
consider, among other things, factors such as: the initial and continued listing requirements of the Nasdaq Capital Market; the number
of shares of our common stock outstanding; potential financing opportunities; and prevailing general market and economic conditions.
The Reverse Stock Split, if approved by our stockholders,
would become effective upon the filing of the amendment to our Certificate of Incorporation with the Secretary of State of the State of
Delaware, or at the later time set forth in the amendment. The exact timing of the amendment will be determined by the board of directors
based on its evaluation as to when such action will be the most advantageous to our Company and our stockholders. In addition, the board
of directors reserves the right, notwithstanding stockholder approval and without further action by the stockholders, to abandon the amendment
and the Reverse Stock Split if, at any time prior to the effectiveness of the filing of the amendment with the Secretary of State of the
State of Delaware, the board of directors, in its sole discretion, determines that it is no longer in our best interest and the best interests
of our stockholders to proceed.
The proposed form of amendment to our certificate
of incorporation to effect the Reverse Stock Split is attached as Appendix A to this Proxy Statement. Any amendment to our certificate
of incorporation to effect the Reverse Stock Split will include the Reverse Stock Split ratio fixed by the board of directors, within
the range approved by our stockholders.
Current $1 Bid Price Listing Compliance Matter
In the past, the Company has at times been out
of compliance with the Nasdaq listing requirement that requires Nasdaq listed companies to maintain a minimum bid price of listed common
stock of $1.00 per share (as further described below).
More specifically, on April 8, 2024, we received
a written notice from the Nasdaq Stock Market LLC (“Nasdaq”) that we were not in compliance with Nasdaq Listing Rule 5550(a)(2),
as the minimum bid price of our common stock had been below $1.00 per share for 30 consecutive business days. In accordance with Nasdaq
Listing Rule 5810(c)(3)(A), we had 180 days to regain compliance with the minimum bid price requirement. On October 8, 2024, we received
from the Nasdaq staff written notification that our securities are subject to delisting from the Nasdaq Capital Market for non-compliance
with the bid price requirement.
We appealed this matter to
a Nasdaq hearing panel (the “Panel”). We had an appeal hearing on October 10, 2024 before the Panel to appeal the delisting
notice from the Nasdaq staff. The Panel has granted the Company an extension until January 31, 2025 to demonstrate compliance with the
$1 bid price requirement.
At the Company’s special
stockholders’ meeting on September 23, 2024, the Company’s stockholders approved a proposal to grant discretionary authority
to our board of directors to (i) amend our certificate of incorporation to combine outstanding shares of our common stock into a lesser
number of outstanding shares, or a “reverse stock split,” at a specific ratio within a range of one-for-five (1-for-5) to
a maximum of a one-for-fifty (1-for-50) split, with the exact ratio to be determined by our board of directors in its sole discretion.
The Company intends to implement the reverse stock split approved at the September 2024 special meeting the near future in order to assist
with the Company’s compliance with Nasdaq’s bid price requirement.
Reasons for the Reverse Stock Split
The Company’s primary reason for approving
and recommending the Reverse Stock Split is to make our common stock more attractive to certain institutional investors, which would provide
for a stronger investor base, and to increase the per share price and bid price of our common stock, if necessary in the future, to maintain
or regain compliance with the continued listing requirements of Nasdaq.
As described above, in the past the Company has
been out of compliance with the Nasdaq listing requirement that requires Nasdaq listed companies to maintain a minimum bid price of listed
common stock of $1.00 per share (as described below).
The Company’s board is asking stockholders
to approve this additional Reverse Stock Split proposal so that the Company would be prepared and able to implement an additional reverse
split expeditiously if such a reverse split would become necessary at some point in the future to maintain the Company’s Nasdaq
listing for its common stock.
Reducing the number of outstanding shares of common
stock should, absent other factors, generally increase the per share market price of the common stock. Although the intent of the Reverse
Stock Split is to increase the price of the common stock, there can be no assurance, however, that even if the Reverse Stock Split is
implemented, that the Company’s bid price of the Company’s common stock will be sufficient, over time, for the Company to
regain or maintain compliance with the Nasdaq minimum bid price requirement.
In addition, the Company believes the Reverse Stock
Split will make its common stock more attractive to a broader range of investors, as it believes that the current market price of the
common stock may prevent certain institutional investors, professional investors and other members of the investing public from purchasing
stock. Many brokerage houses and institutional investors have internal policies and practices that either prohibit them from investing
in low-priced stocks or tend to discourage individual brokers from recommending low-priced stocks to their customers. Furthermore, some
of those policies and practices may function to make the processing of trades in low-priced stocks economically unattractive to brokers.
Moreover, because brokers’ commissions on low-priced stocks generally represent a higher percentage of the stock price than commissions
on higher-priced stocks, the current average price per share of common stock can result in individual stockholders paying transaction
costs representing a higher percentage of their total share value than would be the case if the share price were higher. The Company believes
that the Reverse Stock Split will make our common stock a more attractive and cost effective investment for many investors, which in turn
would enhance the liquidity of the holders of our common stock.
Reducing the number of outstanding shares of our
common stock through the Reverse Stock Split is intended, absent other factors, to increase the per share market price of our common stock.
However, other factors, such as our financial results, market conditions and the market perception of our business may adversely affect
the market price of our common stock. As a result, there can be no assurance that the Reverse Stock Split, if implemented, will result
in the intended benefits described above, that the market price of our common stock will increase following the Reverse Stock Split, that
as a result of the Reverse Stock Split we will be able to meet or maintain a bid price over the minimum bid price requirement of Nasdaq
or that the market price of our common stock will not decrease in the future. Additionally, we cannot assure you that the market price
per share of our common stock after the Reverse Stock Split will increase in proportion to the reduction in the number of shares of our
common stock outstanding before the Reverse Stock Split. Accordingly, the total market capitalization of our common stock after the Reverse
Stock Split may be lower than the total market capitalization before the Reverse Stock Split.
In evaluating whether to seek stockholder approval
for the Reverse Stock Split, our Board took into consideration negative factors associated with reverse stock splits. These factors include:
the negative perception of reverse stock splits that investors, analysts and other stock market participants may hold; the fact that the
stock prices of some companies that have effected reverse stock splits have subsequently declined, sometimes significantly, following
their reverse stock splits; the possible adverse effect on liquidity that a reduced number of outstanding shares could cause; and the
costs associated with implementing a reverse stock split.
Even if our stockholders approve the Reverse Stock
Split, our Board reserves the right not to effect the Reverse Stock Split if in our Board’s opinion it would not be in the best
interests of the Company or our stockholders to effect such Reverse Stock Split.
Potential Effects of the Proposed Amendment
If our stockholders approve the Reverse Stock Split
and the board of directors effects it, the number of shares of common stock issued and outstanding will be reduced, depending upon the
ratio determined by the board of directors. The Reverse Stock Split will affect all holders of our common stock uniformly and will not
affect any stockholder’s percentage ownership interest in the Company, except that as described below in “Fractional Shares,”
record holders of common stock otherwise entitled to a fractional share as a result of the Reverse Stock Split because they hold a number
of shares not evenly divisible by the Reverse Stock Split ratio will automatically be entitled to receive an additional fraction of a
share of common stock to round up to the next whole share. In addition, the Reverse Stock Split will not affect any stockholder’s
proportionate voting power (subject to the treatment of fractional shares).
The Reverse Stock Split will not change the terms
of the common stock. After the Reverse Stock Split, the shares of common stock will have the same voting rights and rights to dividends
and distributions and will be identical in all other respects to the common stock now authorized. The common stock will remain fully paid
and non-assessable.
Under our charter, the Company currently is authorized
to issue 200,000,000 shares of common stock. The Company currently has approximately [***] million common shares outstanding. The Reverse
Stock Split will have no effect on the number of common shares that we are authorized to issue under our charter. By reducing the number
of common shares outstanding without reducing the number of available but unissued common stock, the Reverse Stock Split will increase
the number of authorized but unissued shares. The amount of this increase will vary depending on which final Reverse Stock Split ratio
is selected by the Board immediately prior the implementation of the Reverse Stock Split.
The Board believes the increase is appropriate
for use to fund the future operations of the Company. Although the Reverse Stock Split would not have any dilutive effect on our stockholders,
the Reverse Stock Split without a reduction in the number of shares authorized for issuance would reduce the proportion of shares owned
by our stockholders relative to the number of shares authorized for issuance, giving the Board an effective increase in the authorized
shares available for issuance, in its discretion.
After the effective time of the Reverse Stock Split,
we will continue to be subject to the periodic reporting and other requirements of the Exchange Act.
Registered “Book-Entry” Holders of Common Stock
Our registered holders of common stock hold some
or all of their shares electronically in book-entry form with the transfer agent. These stockholders do not have stock certificates evidencing
their ownership of the common stock. They are, however, provided with statements reflecting the number of shares registered in their accounts.
Stockholders who hold shares electronically in
book-entry form with the transfer agent will not need to take action to receive evidence of their shares of post-Reverse Stock Split common
stock.
Holders of Certificated Shares of Common Stock
Stockholders holding shares of our common stock
in certificated form will be sent a transmittal letter by the transfer agent after the effective time of the Reverse Stock Split. The
letter of transmittal will contain instructions on how a stockholder should surrender his, her or its certificate(s) representing shares
of our common stock (the “Old Certificates”) to the transfer agent. Unless a stockholder specifically requests a new paper
certificate or holds restricted shares, upon the stockholder’s surrender of all of the stockholder’s Old Certificates to the
transfer agent, together with a properly completed and executed letter of transmittal, the transfer agent will register the appropriate
number of shares of post-Reverse Stock Split common stock electronically in book-entry form and provide the stockholder with a statement
reflecting the number of shares registered in the stockholder’s account. No stockholder will be required to pay a transfer or other
fee to exchange his, her or its Old Certificates. Until surrendered, we will deem outstanding Old Certificates held by stockholders to
be cancelled and only to represent the number of shares of post-Reverse Stock Split common stock to which these stockholders are entitled.
Any Old Certificates submitted for exchange, whether because of a sale, transfer or other disposition of stock, will automatically be
exchanged for appropriate number of shares of post-Reverse Stock Split common stock. If an Old Certificate has a restrictive legend on
its reverse side, a new certificate will be issued with the same restrictive legend on its reverse side.
STOCKHOLDERS SHOULD NOT DESTROY ANY STOCK CERTIFICATE(S) AND SHOULD
NOT SUBMIT ANY STOCK CERTIFICATE(S) UNTIL REQUESTED TO DO SO.
Fractional Shares
We will not issue fractional shares in connection
with the Reverse Stock Split. Instead, stockholders who otherwise would be entitled to receive fractional shares because they hold a number
of shares not evenly divisible by the Reverse Stock Split ratio will automatically be entitled to receive an additional fraction of a
share of common stock to round up to the next whole share. In any event, cash will not be paid for fractional shares.
Effect of the Reverse Stock Split on Outstanding Convertible Preferred
Stock, Stock Options and Warrants
Based upon the Reverse Stock Split ratio, proportionate
adjustments are generally required to be made to the per share conversion price or exercise price and the number of shares issuable upon
the conversion or exercise of all outstanding convertible preferred stock, stock options and warrants. This would result in approximately
the same aggregate price being required to be paid under such convertible preferred stock, stock options or warrants upon exercise, and
approximately the same value of shares of common stock being delivered upon such exercise immediately following the Reverse Stock Split
as was the case immediately preceding the Reverse Stock Split. The number of shares reserved for issuance pursuant to these securities
will be reduced proportionately based upon the Reverse Stock Split ratio.
Accounting Matters
The proposed amendment to our Certificate of Incorporation
will not affect the par value of our common stock. As a result, at the effective time of the Reverse Stock Split, the stated capital on
our balance sheet attributable to the common stock will be reduced in the same proportion as the Reverse Stock Split ratio, and the additional
paid-in capital account will be credited with the amount by which the stated capital is reduced. The per share net income or loss will
be restated for prior periods to conform to the post-Reverse Stock Split presentation.
Certain Federal Income Tax Consequences of the Reverse Stock Split
The following summary describes, as of the date
of this proxy statement, certain U.S. federal income tax consequences of the Reverse Stock Split to holders of our common stock. This
summary addresses the tax consequences only to a U.S. holder, which is a beneficial owner of our common stock that is either:
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a corporation, or other entity taxable as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States or any state thereof or the District of Columbia; |
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an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or |
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a trust, if: (i) a court within the United States is able to exercise primary jurisdiction over its administration and one or more U.S. persons has the authority to control all of its substantial decisions or (ii) it was in existence before August 20, 1996 and a valid election is in place under applicable Treasury regulations to treat such trust as a U.S. person for U.S. federal income tax purposes |
This summary is based on the provisions of the
Internal Revenue Code of 1986, as amended (the “Code”), U.S. Treasury regulations, administrative rulings and judicial authority,
all as in effect as of the date of this proxy statement. Subsequent developments in U.S. federal income tax law, including changes in
law or differing interpretations, which may be applied retroactively, could have a material effect on the U.S. federal income tax consequences
of the Reverse Stock Split.
This summary does not address all of the tax consequences
that may be relevant to any particular investor, including tax considerations that arise from rules of general application to all taxpayers
or to certain classes of taxpayers or that are generally assumed to be known by investors. This summary also does not address the tax
consequences to (i) persons that may be subject to special treatment under U.S. federal income tax law, such as banks, insurance companies,
thrift institutions, regulated investment companies, real estate investment trusts, tax-exempt organizations, U.S. expatriates, persons
subject to the alternative minimum tax, persons whose functional currency is not the U.S. dollar, partnerships or other pass-through entities,
traders in securities that elect to mark to market and dealers in securities or currencies, (ii) persons that hold our common stock as
part of a position in a “straddle” or as part of a “hedging transaction,” “conversion transaction”
or other integrated investment transaction for federal income tax purposes or (iii) persons that do not hold our common stock as “capital
assets” (generally, property held for investment). This summary does not address backup withholding and information reporting. This
summary does not address U.S. holders who beneficially own common stock through a “foreign financial institution” (as defined
in Code Section 1471(d)(4)) or certain other non-U.S. entities specified in Code Section 1472. This summary does not address tax considerations
arising under any state, local or foreign laws, or under federal estate or gift tax laws.
If a partnership (or other entity classified as
a partnership for U.S. federal income tax purposes) is the beneficial owner of our common stock, the U.S. federal income tax treatment
of a partner in the partnership will generally depend on the status of the partner and the activities of the partnership. Partnerships
that hold our common stock, and partners in such partnerships, should consult their own tax advisors regarding the U.S. federal income
tax consequences of the Reverse Stock Split.
Each holder should consult his, her or its own
tax advisors concerning the particular U.S. federal tax consequences of the Reverse Stock Split, as well as the consequences arising under
the laws of any other taxing jurisdiction, including any foreign, state, or local income tax consequences.
General Tax Treatment of the Reverse Stock Split
The Reverse Stock Split is intended to qualify
as a “reorganization” under Section 368 of the Code that should constitute a “recapitalization” for U.S. federal
income tax purposes. Assuming the Reverse Stock Split qualifies as a reorganization, a U.S. holder generally will not recognize gain or
loss upon the exchange of our ordinary shares for a lesser number of ordinary shares, based upon the Reverse Stock Split ratio. A U.S.
holder’s aggregate tax basis in the lesser number of ordinary shares received in the Reverse Stock Split will be the same such U.S.
holder’s aggregate tax basis in the shares of our common stock that such U.S. holder owned immediately prior to the Reverse Stock
Split. The holding period for the ordinary shares received in the Reverse Stock Split will include the period during which a U.S. holder
held the shares of our common stock that were surrendered in the Reverse Stock Split. The United States Treasury regulations provide detailed
rules for allocating the tax basis and holding period of the shares of our common stock surrendered to the shares of our common stock
received pursuant to the Reverse Stock Split. U.S. holders of shares of our common stock acquired on different dates and at different
prices should consult their tax advisors regarding the allocation of the tax basis and holding period of such shares.
THE FOREGOING IS INTENDED ONLY AS A SUMMARY
OF CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT, AND DOES NOT CONSTITUTE A TAX OPINION. EACH HOLDER OF OUR COMMON
SHARES SHOULD CONSULT ITS OWN TAX ADVISOR REGARDING THE TAX CONSEQUENCES OF THE REVERSE STOCK SPLIT TO THEM AND FOR REFERENCE TO APPLICABLE
PROVISIONS OF THE CODE.
Interests of Officers and Directors in this Proposal
Our officers and directors do not have
any substantial interest, direct or indirect, in this proposal.
Required Vote of Stockholders
Under Delaware law, Proposal 6 will only be approved
if the affirmative vote of a majority of the votes cast by the stockholders entitled to vote on the matter vote in favor of such action.
Proxies solicited by our Board of Directors will be voted for approval of this Proposal 6 unless otherwise specified.
Board Recommendation
The board of directors unanimously recommends
a vote “FOR” Proposal 6.
PROPOSAL NO. 7 — APPROVAL OF AN AMENDMENT
TO OUR
2020 EQUITY INCENTIVE PLAN
General
Our board, upon the recommendation of
the compensation committee, approved, subject to stockholder approval, an amendment to the Aclarion, Inc. 2022 Equity Incentive Plan.
The Board is asking stockholders to approve the amendment to the 2022 Plan.
Under the current 2022 Plan, the maximum
number of our shares of common stock that may be subject to any award of stock options, any restricted stock or other stock-based award
denominated in shares that may be granted under the 2022 Plan during any fiscal year to each individual participant is 31,250 shares per
type of award; provided that the maximum number of our shares of common stock for all types of awards during any fiscal year is 31,250
shares per each employee, consultant or director. The 2022 Plan amendment approved by the board would raise the annual per each employee,
consultant or director from 31,250 to 500,000 shares.
Our board also approved an amendment
to the 2022 Plan to increase the number of shares reserved for issuance by [***], thereby increasing the total number of shares issuable
under the 2022 Plan from [***] to [***].
Proposed Amendment
The text of the proposed amendment to
Sections 3(a), 3(d) and 3(e) of the 2022 Plan is set forth below:
3. SHARES
SUBJECT TO THE PLAN.
(a) Share
Reserve. Subject to Section 9(a) relating to Capitalization Adjustments, and the following sentence regarding the annual
increase, the aggregate number of shares of Common Stock that may be issued pursuant to Stock Awards will not exceed (i) [***] [***] new
shares, plus (ii) the number of shares that are Returning Shares, as such shares become available from time to time (the “Share
Reserve”).
(d) Other
Limitations. Subject to the provisions of Section 9(a) relating to Capitalization Adjustments, the following limitations shall apply.
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A maximum of 500,000 [31,250] shares of Common Stock subject to Options, SARs and Other Stock Awards whose value is determined by reference to an increase over an exercise or strike price of at least 100% of the Fair Market Value on the date the Stock Award is granted may be granted to any one Participant during any one calendar year. |
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A maximum of 500,000 [31,250] shares of Common Stock subject to Performance Stock Awards may be granted to any one Participant during any one calendar year (whether the grant, vesting or exercise is contingent upon the attainment during the Performance Period of the Performance Goals). |
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A maximum of $200,000 may be granted as a Performance Cash Award to any one Participant during any one calendar year. |
(e) Limitation
on Grants to Non-Employee Directors. The maximum number of shares of Common Stock subject to Stock Awards granted under the Plan or
otherwise with respect to any period commencing on the date of the Company’s Annual Meeting of Stockholders for a particular year
and ending on the day immediately prior to the date of the Company’s Annual Meeting of Stockholders for the next subsequent year
to any Non-Employee Director, will not exceed of 500,000 [31,250] shares.
No other changes to the 2022 Plan have
been proposed or approved.
Reason for Amendment of the 2022 Plan
The board believes that the future success
of the Company depends, in large part, upon our ability to attract, retain and motivate key personnel and that the granting of equity
awards serves as an important factor in retaining key personnel. Without the ability to provide equity compensation, we may be unable
to attract and retain key personnel.
The board believes that the current
[***] share reserve will limit the Company’s ability to grant equity to employees, officers and other key personnel in the amounts
necessary to provide appropriate incentives. The board believes that increasing the size of the share reserve of the 2022 Plan will improve
the Company’s ability to grant appropriate and attractive equity incentive to key personnel.
The board believes that the current
31,250 share annual limit has limited the Company’s ability to grant equity to employees, officers and other key personnel in the
amounts necessary to provide appropriate incentives. The board believes that increasing the annual grant limit from 31,250 shares to 500,000
shares will improve the Company’s ability to grant appropriate and attractive equity incentive to key personnel.
Plan Benefits
The amounts of future grants under the
2022 Plan are not determinable as awards under the 2022 Plan will be granted at the sole discretion of the plan administrator or other
delegated persons and we cannot determine at this time either the persons who will receive awards under the 2022 Plan or the amount or
types of any such awards. The Company has not made any grants under the 2022 Plan using the additional 2022 Plan Shares which are subject
to the approval of this Proposal No. 7 by our stockholders.
General Description of the 2022 Plan as Amended
In anticipation of our April 2022 initial
public offering, our board adopted the 2022 Plan, contingent upon the consummation of the IPO. We believe that the 2022 Plan is appropriate
to continue to enable us to grant awards to management to reward and incentivize their performance and retention, but also to have a long-term
equity plan that is appropriate for us as a public company.
The material terms of the 2022 Plan
are summarized below. The following summary is qualified in its entirety by reference to the complete text of the 2022 Plan (as amended),
a copy of which has been filed as an exhibit to our 2023 Annual Report.
Administration of the plan
Our board has appointed the compensation
committee of our board of directors as the committee under the 2022 Plan with the authority to administer the 2022 Plan. We refer to our
board of directors or compensation committee, as applicable, as the “Administrator”. The Administrator is authorized to grant
awards to eligible employees, consultants and non-employee directors.
Number of authorized shares and award
limits
Prior to the proposed amendment, the
aggregate number of our shares of common stock that may be issued or used for reference purposes under the 2022 Plan is currently [***]
shares (subject to adjustment as described below). Our shares of common stock that are subject to awards will be counted against the overall
limit as one share for every share granted or covered by an award. If any award is cancelled, expires or terminates unexercised for any
reason, the shares covered by such award will again be available for the grant of awards under the 2022 Plan, except that any shares that
are not issued as the result of a net exercise or settlement or that are used to pay any exercise price or tax withholding obligation
will not be available for the grant of awards. Shares of common stock that we repurchase on the open market with the proceeds of an option
exercise price also will not be available for the grant of awards. Awards that may be settled solely in cash will not be deemed to use
any shares.
The aggregate number of our shares of
common stock that may be issued or used for reference purposes under the 2022 Plan will automatically increase on January 1st of each
year and ending on (and including) January 1, 2032, in an amount equal to 5% of the total number of shares outstanding on December 31st
of the preceding calendar year. Notwithstanding the foregoing, the board may act prior to January 1st of a given year to provide that
there will be no January 1st increase in the share reserve for such year or that the increase in the share reserve for such year will
be a lesser number of shares than would otherwise occur pursuant to the preceding sentence.
As of November [***], 2024, there were
[***] restricted stock units and [***] options (not including [***] non-plan options made as inducement grants) granted and outstanding
under the 2022 Plan.
Prior to the proposed amendment, the
maximum number of our shares of common stock that may be subject to any award of stock options, any restricted stock or other stock-based
award denominated in shares that may be granted under the 2022 Plan during any fiscal year to each employee or consultant is 31,250 shares
per type of award; provided that the maximum number of our shares of common stock for all types of awards during any fiscal year is 31,250
shares per each employee, consultant or director. The maximum number of our shares of common stock that may be granted pursuant to awards
under the 2022 Plan during any fiscal year to any non-employee director is 31,250 shares. In addition, the maximum grant date value of
any other stock-based awards denominated in cash and the maximum payment under any performance-based cash award granted under the 2022
Plan payable with respect to any fiscal year to an employee or consultant is $200,000.
The foregoing individual participant
limits are cumulative; that is, to the extent that shares of common stock that may be granted to an individual in a fiscal year are not
granted, the number of shares of common stock that may be granted to such individual is increased in the subsequent fiscal years during
the term of the 2022 Plan until used. In addition, the foregoing limits (other than the limit on the maximum number of our shares of common
stock for all types of awards during any fiscal year) will not apply (i) to options, restricted stock or other stock-based awards that
constitute “restricted property” under Section 83 of the Code to the extent granted during the reliance period (as described
below), or (ii) to performance-based cash awards or other types of other stock-based awards to the extent paid or otherwise settled during
the reliance period.
For companies that become public in
connection with an initial public offering, the deduction limit under Section 162(m) does not apply during a “reliance period”
under the Treasury Regulations under Section 162(m) until the earliest of: (i) the expiration of the 2022 Plan, (ii) the date the 2022
Plan is materially amended for purposes of Treasury Regulation Section 1.162-27(h)(1)(iii); (iii) the date all shares of common stock
available for issuance under the 2022 Plan have been allocated; or (iv) the date of the first annual meeting of our stockholders at which
directors are to be elected that occurs after the close of the third calendar year following the calendar year in which the initial public
offering occurs, such period is referred to herein as the reliance period.
The Administrator will, in accordance
with the terms of the 2022 Plan, make appropriate adjustments to the above aggregate and individual limits (other than cash limitations),
to the number and/or kind of shares or other property (including cash) underlying awards and to the purchase price of shares underlying
awards, in each case, to reflect any change in our capital structure or business by reason of any stock split, reverse stock split, stock
dividend, combination or reclassification of shares, any recapitalization, merger, consolidation, spin off, split off, reorganization
or any partial or complete liquidation, any sale or transfer of all or part of our assets or business, or any other corporate transaction
or event that would be considered an “equity restructuring” within the meaning of FASB ASC Topic 718. In addition, the Administrator
may take similar action with respect to other extraordinary events.
Eligibility and participation
All of our current and prospective employees
and consultants, as well as our non-employee directors, are eligible to be granted non-qualified stock options, restricted stock, performance-based
cash awards and other stock-based awards under the 2022 Plan. Only our and our subsidiaries’ employees are eligible to be granted
incentive stock options, (“ISOs”), under the 2022 Plan. Eligibility for awards under the 2022 Plan is determined by the Administrator
in its discretion. In addition, each member of our board of directors who is not an employee of the company or any of our affiliates is
expected to be eligible to receive awards under the 2022 Plan.
Types of awards
Stock options. The 2022 Plan
authorizes the Administrator to grant ISOs to eligible employees and non-qualified stock options to purchase shares to employees, consultants,
prospective employees, prospective consultants and non-employee directors. The Administrator will determine the number of shares of common
stock subject to each option, the term of each option, the exercise price (which may not be less than the fair market value of the shares
of common stock at the time of grant, or 110% of fair market value in the case of ISOs granted to 10% stockholders), the vesting schedule
and the other terms and conditions of each option. Options will be exercisable at such times and subject to such terms as are determined
by the Administrator at the time of grant. The maximum term of options under the 2022 Plan is ten years (or five years in the case of
ISOs granted to 10% stockholders). Upon the exercise of an option, the participant must make payment of the full exercise price, either
in cash or by check, bank draft or money order; solely to the extent permitted by law and authorized by the Administrator, through the
delivery of irrevocable instructions to a broker, reasonably acceptable to us, to promptly deliver to us an amount equal to the aggregate
exercise price; or on such other terms and conditions as may be acceptable to the Administrator (including, without limitation, the relinquishment
of options or by payment in full or in part in the form of shares of common stock).
Restricted stock. The 2022 Plan
authorizes the Administrator to grant restricted stock. Recipients of restricted stock enter into an agreement with us subjecting the
restricted stock to transfer and other restrictions and providing the criteria or dates on which such awards vest and such restrictions
lapse. The restrictions on restricted stock may lapse and the awards may vest over time, based on performance criteria or other factors
(including, without limitation, performance goals that are intended to comply with the performance-based compensation exception under
Section 162(m), as discussed below), as determined by the Administrator at the time of grant. Except as otherwise determined by the Administrator,
a holder of restricted stock has all of the attendant rights of a stockholder including the right to receive dividends, if any, subject
to and conditioned upon vesting and restrictions lapsing on the underlying restricted stock, the right to vote shares and, subject to
and conditioned upon the vesting and restrictions lapsing for the underlying shares, the right to tender such shares. However, the Administrator
may in its discretion provide at the time of grant that the right to receive dividends on restricted stock will not be subject to the
vesting or lapsing of the restrictions on the restricted stock.
Other stock-based awards. The
2022 Plan authorizes the Administrator to grant awards of shares of common stock and other awards that are valued in whole or in part
by reference to, or are payable in or otherwise based on, shares of common stock, including, but not limited to, shares of common stock
awarded purely as a bonus and not subject to any restrictions or conditions; shares of common stock in payment of the amounts due under
an incentive or performance plan sponsored or maintained by us or an affiliate; stock appreciation rights; stock equivalent units; restricted
stock units; performance awards entitling participants to receive a number of shares of common stock (or cash in an equivalent value)
or a fixed dollar amount, payable in cash, stock or a combination of both, with respect to a designated performance period; or awards
valued by reference to book value of our shares of common stock. In general, other stock-based awards that are denominated in shares of
common stock will include the right to receive dividends, if any, subject to and conditioned upon vesting and restrictions lapsing on
the underlying award, but the Administrator may in its discretion provide at the time of grant that the right to receive dividends on
a stock-denominated award will not be subject to the vesting or lapsing of the restrictions on the performance award.
Performance-based cash awards.
The 2022 Plan authorizes the Administrator to grant cash awards that are payable or otherwise based on the attainment of pre-established
performance goals during a performance period. As noted above, following the Reliance Period, performance-based cash awards granted under
the 2022 Plan that are intended to satisfy the performance-based compensation exception under Code Section 162(m) will vest based on attainment
of specified performance goals established by the Administrator. These performance goals will be based on the attainment of a certain
target level of, or a specified increase in (or decrease where noted), criteria selected by the Administrator.
Such performance goals may be based
upon the attainment of specified levels of company, affiliate, subsidiary, division, other operational unit, business segment or administrative
department performance relative to the performance of other companies. The Administrator may designate additional business criteria on
which the performance goals may be based or adjust, modify or amend those criteria, to the extent permitted by Section 162(m). Unless
the Administrator determines otherwise, to the extent permitted by Section 162(m), the Administrator will disregard and exclude the impact
of special, unusual or non-recurring items, events, occurrences or circumstances; discontinued operations or the disposal of a business;
the operations of any business that we acquire during the fiscal year or other applicable performance period; or a change in accounting
standards required by generally accepted accounting principles or changes in applicable law or regulations.
Effect of certain transactions; Change
in control
In the event of a change in control,
as defined in the 2022 Plan, except as otherwise provided by the Administrator, unvested awards will not vest. Instead, the Administrator
may, in its sole discretion provide that outstanding awards will be: assumed and continued; purchased based on the price per share paid
in the change in control transaction (less, in the case of options and stock appreciation rights (“SARs”), the exercise price),
as adjusted by the Administrator for any contingent purchase price, escrow obligations, indemnification obligations or other adjustments
to the purchase price; and/or in the case of stock options or other stock-based appreciation awards where the change in control price
is less than the applicable exercise price, cancelled. However, the Administrator may in its sole discretion provide for the acceleration
of vesting and lapse of restrictions of an award at any time including in connection with a change in control.
Non-transferability of awards
Except as the Administrator may permit,
at the time of grant or thereafter, awards granted under the 2022 Plan are generally not transferable by a participant other than by will
or the laws of descent and distribution. Shares of common stock acquired by a permissible transferee will continue to be subject to the
terms of the 2022 Plan and the applicable award agreement.
Term
Awards under the 2022 Plan may not be
made after December 13, 2031, but awards granted prior to such date may extend beyond that date. We may seek stockholder reapproval of
the performance goals in the 2022 Plan. If such stockholder approval is obtained, on or after the first stockholders’ meeting in
the fifth year following the year of the last stockholder approval of the performance goals in the 2022 Plan, awards under the 2022 Plan
may be based on such performance goals in order to qualify for the “performance-based compensation” exception under Section
162(m).
Amendment and termination
Subject to the rules referred to in
the balance of this paragraph, our board of directors or the Administrator (to the extent permitted by law) may at any time amend, in
whole or in part, any or all of the provisions of the 2022 Plan, or suspend or terminate it entirely, retroactively or otherwise. Except
as required to comply with applicable law, no such amendment, suspension or termination may reduce the rights of a participant with respect
to awards previously granted without the consent of such participant. In addition, without the approval of stockholders, no amendment
may be made that would: increase the aggregate number of shares of common stock that may be issued under the 2022 Plan; increase the maximum
individual participant share limitations for a fiscal year or year of a performance period; change the classification of individuals eligible
to receive awards under the 2022 Plan; extend the maximum term of any option; reduce the exercise price of any option or SAR or cancel
any outstanding “in-the-money” option or SAR in exchange for cash; substitute any option or SAR in exchange for an option
or SAR (or similar other award) with a lower exercise price; alter the performance goals; or require stockholder approval in order for
the 2022 Plan to continue to comply with Section 162(m) or Section 422 of the Code.
Federal income tax implications of
the 2022 Plan
The federal income tax consequences
arising with respect to awards granted under the 2022 Plan will depend on the type of award. From the recipients’ standpoint, as
a general rule, ordinary income will be recognized at the time of payment of cash, or delivery of actual shares. Future appreciation on
shares held beyond the ordinary income recognition event will be taxable at capital gains rates when the shares are sold. We, as a general
rule, will be entitled to a tax deduction that corresponds in time and amount to the ordinary income recognized by the recipient, and
we will not be entitled to any tax deduction in respect of capital gain income recognized by the recipient. Exceptions to these general
rules may arise under the following circumstances: (i) if shares, when delivered, are subject to a substantial risk of forfeiture by reason
of failure to satisfy any employment or performance-related condition, ordinary income taxation and our tax deduction will be delayed
until the risk of forfeiture lapses (unless the recipient makes a special election to ignore the risk of forfeiture); (ii) if an employee
is granted an ISO, no ordinary income will be recognized, and we will not be entitled to any tax deduction, if shares acquired upon exercise
of the ISO are held longer than the later of one year from the date of exercise and two years from the date of grant; (iii) for awards
granted after the reliance period, we may not be entitled to a tax deduction for compensation attributable to awards granted to one of
our Named Executive Officers (other than our Chief Financial Officer), if and to the extent such compensation does not qualify as “performance-based”
compensation under Section 162(m), and such compensation, along with any other non-performance-based compensation paid in the same calendar
year, exceeds $1 million; and (iv) an award may be taxable at 20% above ordinary income tax rates at the time it becomes vested, even
if that is prior to the delivery of the cash or stock in settlement of the award, if the award constitutes “deferred compensation”
under Section 409A of the Code, and the requirements of Section 409A of the Code are not satisfied. The foregoing provides only a general
description of the application of federal income tax laws to certain awards under the Incentive Plans, and is not intended as tax guidance
to participants in the Incentive Plans, as the tax consequences may vary with the types of awards made, the identity of the recipients
and the method of payment or settlement. This summary does not address the effects of other federal taxes (including possible “golden
parachute” excise taxes) or taxes imposed under state, local, or foreign tax laws.
Vote Required and Board of Directors’ Recommendation
The affirmative vote of a majority of
the shares of common stock present in person, or represented by proxy, and entitled to vote at the Annual Meeting is required to ratify
the proposed amendment to the 2022 Plan. Abstentions will be treated as shares present and entitled to vote and will therefore have the
same effect as a vote against this proposal.
If your shares are held in “street
name” by a broker, bank or other nominee, your broker, bank or other nominee does not have authority to vote your unvoted shares
held by the firm on this proposal. As a result, any shares not voted by you will be treated as a broker non-vote. Such broker non-votes
will have no effect on the results of the vote on Proposal 7.
The board of directors recommends voting “FOR”
Proposal No. 7 to approve the proposed amendment to Aclarion’s 2022 Equity Incentive Plan.
CORPORATE GOVERNANCE
Director Nomination Process
Our nominating and corporate governance committee
is responsible for identifying individuals qualified to serve as directors, consistent with criteria approved by our board of directors,
and recommending such persons to be nominated for election as directors, except where we are legally required by contract, law or otherwise
to provide third parties with the right to nominate.
The process followed by our nominating and corporate
governance committee to identify and evaluate director candidates includes requests to board members and others for recommendations, meetings
from time to time to evaluate biographical information and background material relating to potential candidates, and interviews of selected
candidates by management, recruiters, members of the committee and our board. The qualifications, qualities and skills that our nominating
and corporate governance committee believes must be met by a committee-recommended nominee for a position on our board of directors are
as follows:
| |
· |
Nominees should demonstrate high standards of personal and professional ethics and integrity. |
| |
· |
Nominees should have proven achievement and competence in the nominee’s field and the ability to exercise sound business judgment. |
| |
· |
Nominees should have skills that are complementary to those of the existing board. |
| |
· |
Nominees should have the education, expertise and business acumen to assist and support management and make significant contributions to the Company’s success. |
| |
· |
Nominees should have an understanding of the fiduciary responsibilities that are required of a member of the board of directors and the commitment of time and energy necessary to diligently carry out those responsibilities. |
Stockholders may recommend individuals to the nominating
and corporate governance committee for consideration as potential director candidates. Any such proposals should be submitted to our Corporate
Secretary at our principal executive offices no later than the close of business on the 90th day nor earlier than the close
of business on the 120th day prior to the one-year anniversary of the date of the preceding year’s annual meeting and
should include appropriate biographical and background material to allow the nominating and corporate governance committee to properly
evaluate the potential director candidate and the number of shares of our stock beneficially owned by the stockholder proposing the candidate.
Stockholder proposals should be addressed to Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield, CO 80021, Attention: Corporate
Secretary. Assuming that biographical and background materials have been provided on a timely basis in accordance with our bylaws, any
recommendations received from stockholders will be evaluated in the same manner as potential nominees proposed by the nominating and corporate
governance committee. If our board of directors determines to nominate a stockholder-recommended candidate and recommends such candidate’s
election, then such candidate’s name will be included on our proxy card for the next annual meeting of stockholders. See “Stockholder
Proposals” for a discussion of submitting stockholder proposals.
Director Independence
Our common stock was approved for listing on The
Nasdaq Capital Market. Under the Nasdaq listing rules, independent directors must comprise a majority of a listed company’s board
of directors within twelve months from the date of listing. In addition, the Nasdaq rules require that, subject to specified exceptions,
each member of a listed company’s audit, compensation and nominating and corporate governance committees be independent and that
audit committee members also satisfy independence criteria set forth in Rule 10A-3 under the Exchange Act and that nominating and corporate
governance committee members satisfy independence criteria set forth in Rule 10C- 1 under the Exchange Act. Under applicable Nasdaq rules,
a director will only qualify as an “independent director” if, in the opinion of the listed company’s board of directors,
that person does not have a relationship that would interfere with the exercise of independent judgment in carrying out the responsibilities
of a director. In order to be considered independent for purposes of Rule 10A-3 under the Exchange Act, a member of an audit committee
of a listed company may not, other than in such member’s capacity as a member of the audit committee, the board of directors, or
any other board committee: (1) accept, directly or indirectly, any consulting, advisory, or other compensatory fee from the listed company
or any of its subsidiaries, other than compensation for board service; or (2) be an affiliated person of the listed company or any of
its subsidiaries. In order to be considered independent for purposes of Rule 10C-1, the board of directors consider, for each member of
a nominating and corporate governance committee of a listed company, all factors specifically relevant to determining whether a director
has a relationship to such company which is material to that director’s ability to be independent from management in connection
with the duties of a nominating and corporate governance committee member, including, but not limited to: the source of compensation of
the director, including any consulting advisory or other compensatory fee paid by such company to the director, and whether the director
is affiliated with the company or any of its subsidiaries or affiliates.
Our board of directors has determined that all
members of the board of directors, except Jeffrey Thramann, Brent Ness and David Neal, are independent directors, including for purposes
of the rules of Nasdaq and the SEC. In making such independence determination, our board of directors considered the relationships that
each director has with us and all other facts and circumstances that our board of directors deemed relevant in determining their independence,
including the beneficial ownership of our capital stock by each director. In considering the independence of the directors listed above,
our board of directors considered the association of our directors with the holders of more than 5% of our common stock. There are no
family relationships among any of our directors or executive officers.
Director Diversity
The following Board Diversity Matrix presents our
board of directors’ diversity statistics in accordance with Nasdaq Rule 5606, as self-disclosed by our directors.
Board Diversity Matrix (As of November
[***], 2024)
Board Size:
Total Number of Directors |
|
7 |
| |
|
Female |
Male |
Non-Binary |
Did Not Disclose Gender |
| Part I: Gender Identity |
|
|
|
|
|
| Directors |
|
1 |
6 |
|
|
| Part II: Demographic Background |
|
|
|
|
|
| African American or Black |
|
|
|
|
|
| Alaskan Native or Native American |
|
|
|
|
|
| Asian |
|
|
|
|
|
| Hispanic or Latinx |
|
|
|
|
|
| Native Hawaiian or Pacific Islander |
|
|
|
|
|
| White |
|
1 |
6 |
|
|
| Two or More Races or Ethnicities |
|
|
|
|
|
| LGBTQ+ |
|
|
|
|
|
| Did Not Disclose Demographic Background |
|
|
|
|
|
Board Committees
Our board has three committees, consisting of an
audit committee, a compensation committee, and a nominating and corporate governance committee. Each of the audit committee, compensation
committee, and nominating and corporate governance committee operates under a charter that satisfies the applicable standards of the SEC
and Nasdaq. Each such committee reviews its respective charter at least annually. A current copy of the charter for each of the committees
is posted on the corporate governance section of our website, https://investors.aclarion.com/corporate-governance.
The table below shows current membership for each
of the standing committees of our board of directors.
| |
|
|
|
|
Nominating and Corporate |
| Audit Committee |
|
Compensation Committee |
|
Governance Committee |
| Stephen Deitsch* |
Bill Wesemann* |
Amanda Williams* |
| Scott Breidbart |
Scott Breidbart |
Scott Breidbart |
| Bill Wesemann |
Amanda Williams |
Bill Wesemann |
__________________
* Denotes committee chair.
Audit Committee
Bill Wesemann, Scott Breidbart and Steve Deitsch
serve on the audit committee, which is chaired by Stephen Deitsch. Our board of directors has determined that each member of the audit
committee is “independent” for audit committee purposes as that term is defined by the rules of the SEC and Nasdaq, and that
each has sufficient knowledge in financial and auditing matters to serve on the audit committee. Our board of directors has designated
Stephen Deitsch as an “audit committee financial expert,” as defined under the applicable rules of the SEC. During the fiscal
year ended December 31, 2023, the audit committee met [***] times. The audit committee’s responsibilities include:
| |
· |
appointing, approving the compensation of, and assessing the independence of our independent registered public accounting firm; |
| |
· |
pre-approving auditing and permissible non-audit services, and the terms of such services, to be provided by our independent registered public accounting firm; |
| |
· |
reviewing the overall audit plan with our independent registered public accounting firm and members of management responsible for preparing our consolidated financial statements; |
| |
· |
reviewing and discussing with management and our independent registered public accounting firm our annual and quarterly financial statements and related disclosures as well as critical accounting policies and practices used by us; |
| |
· |
coordinating the oversight and reviewing the adequacy of our internal control over financial reporting; |
| |
· |
establishing policies and procedures for the receipt and retention of accounting-related complaints and concerns; |
| |
· |
overseeing the company’s risk management protocols and procedures, including our information security and technology risks and programs, and preparing an annual report to our board of directors on the audit committee’s risk assessment findings and risk management activities; |
| |
· |
recommending, based upon the audit committee’s review and discussions with management and our independent registered public accounting firm, whether our audited financial statements shall be included in our Annual Report on Form 10-K; |
| |
· |
monitoring the integrity of our financial statements and our compliance with legal and regulatory requirements as they relate to our financial statements and accounting matters; |
| |
· |
preparing the audit committee report required by SEC rules to be included in our annual proxy statement; |
| |
· |
reviewing all related person transactions for potential conflict of interest situations and approving all such transactions; and |
| |
· |
reviewing quarterly earnings releases. |
All audit and non-audit services, other than de
minimis non-audit services, to be provided to us by our independent registered public accounting firm must be approved in advance
by our audit committee.
Compensation Committee
Amanda Williams, Scott Breidbart, and Bill Wesemann
serve on the compensation committee, which is chaired by Bill Wesemann. Our board of directors has determined that each member of the
compensation committee is “independent” as defined in the applicable Nasdaq rules. During the fiscal year ended December 31,
2023, the compensation committee (formerly our “compensation, nomination and corporate governance committee”) met [***] times.
The compensation committee’s responsibilities include:
| |
· |
annually reviewing and recommending to the board of directors the corporate goals and objectives relevant to the compensation of our Chief Executive Officer; |
| |
· |
evaluating the performance of our Chief Executive Officer in light of such corporate goals and objectives and, based on such evaluation, (i) recommending to the board of directors the cash compensation of our Chief Executive Officer and (ii) reviewing and recommending to the board of directors any grants and awards to our Chief Executive Officer under equity-based plans; |
| |
· |
reviewing and approving the compensation of our other executive officers; |
| |
· |
reviewing and establishing our overall management compensation philosophy and policy; |
| |
· |
overseeing and administering our compensation and similar plans; |
| |
· |
evaluating and assessing potential and current compensation advisors in accordance with the independence standards identified in the applicable Nasdaq listing rules; |
| |
· |
reviewing and approving our policies and procedures for the grant of equity-based awards; |
| |
· |
reviewing and recommending to the board of directors the compensation of our directors; and |
| |
· |
reviewing and discussing annually with management our “Compensation Discussion and Analysis,” if and when required, to be included in our annual proxy statement; |
| |
· |
preparing our compensation committee report if and when required by the SEC rules to be included in our annual proxy statement; and |
| |
· |
reviewing and approving the retention or termination of any consulting firm or outside advisor to assist in the evaluation of compensation matters. |
Nominating and Corporate Governance Committee
Bill Wesemann, Scott Breidbart, and Amanda Williams
serve on the nominating and corporate governance committee, which is chaired by Amanda Williams. Our board of directors has determined
that each member of the nominating and corporate governance committee is “independent” as defined in the applicable Nasdaq
rules. The nominating and corporate governance committee held [***] meetings during the fiscal year ended December 31, 2023. The nominating
and corporate governance committee’s responsibilities include:
| |
· |
reviewing and advising management regarding the company’s human capital management strategies, including culture, diversity and inclusion strategies, programs and initiatives; |
| |
· |
developing and recommending to the board of directors criteria for board and committee membership; |
| |
· |
establishing procedures for identifying and evaluating board of director candidates, including nominees recommended by stockholders; |
| |
· |
reviewing the composition of the board of directors to ensure that it is composed of members containing the appropriate skills and expertise to advise us; |
| |
· |
identifying individuals qualified to become members of the board of directors; |
| |
· |
recommending to the board of directors the persons to be nominated for election as directors and to each of the board’s committees; |
| |
· |
developing and recommending to the board of directors a code of business conduct and ethics and a set of corporate governance guidelines; |
| |
· |
reviewing and overseeing the company’s strategy, initiatives, and policies related to diversity and inclusion, and ethics and compliance programs; and |
| |
· |
overseeing the evaluation of our board of directors and management. |
The nominating and corporate governance committee
considers candidates for board of director membership suggested by its members and our executive officers. Additionally, in selecting
nominees for directors, the nominating and corporate governance committee will review candidates recommended by stockholders in the same
manner and using the same general criteria as candidates recruited by the committee and/or recommended by our board of directors. Any
stockholder who wishes to recommend a candidate for consideration by the committee as a nominee for director should follow the procedures
described later in this proxy statement under the heading “Stockholder Proposals.” The nominating and corporate governance
committee will also consider whether to nominate any person proposed by a stockholder in accordance with the provisions of our bylaws
relating to stockholder nominations as described later in this proxy statement under the heading “Stockholder Proposals.”
We believe that the composition and functioning
of our nominating and corporate governance committee complies with all applicable requirements of the Sarbanes-Oxley Act, and all applicable
SEC and Nasdaq Rules and regulations. We intend to comply with future requirements to the extent they become applicable to us.
Our board of directors may from time to time establish
other committees.
Identifying and Evaluating Director Nominees.
Our board of directors is responsible for filling
vacancies on our board of directors and for nominating candidates for election by our stockholders each year for directors whose term
expires at the relevant annual meeting. The board of directors delegates the selection and nomination process to the nominating and corporate
governance committee, with the expectation that other members of the board of directors, and of management, will be requested to take
part in the process as appropriate.
Generally, the nominating and corporate governance
committee identifies candidates for director nominees in consultation with management, through the use of search firms or other advisors,
through the recommendations submitted by stockholders or through such other methods as the nominating and corporate governance committee
deems to be helpful to identify candidates. Once candidates have been identified, the nominating and corporate governance committee confirms
that the candidates meet all of the minimum qualifications for director nominees established by nominating and corporate governance committee.
The nominating and corporate governance committee may gather information about the candidates through interviews, detailed questionnaires,
comprehensive background checks or any other means that the nominating and corporate governance committee deems to be appropriate in the
evaluation process. The nominating and corporate governance committee then meets as a group to discuss and evaluate the qualities and
skills of each candidate, both on an individual basis and taking into account the overall composition and needs of our board of directors.
Based on the results of the evaluation process, the nominating and corporate governance committee recommends candidates for the board
of directors’ approval to fill a vacancy or as director nominees for election to the board of directors by our stockholders each
year in the class of directors whose term expires at the relevant annual meeting.
Minimum Qualifications for Director Nominees.
Our nominating and corporate governance committee
and our board of directors consider a broad range of factors relating to the qualifications of nominees. Our nominating and corporate
governance committee’s and our board of directors’ priority in selecting board members is the identification of persons who
will provide a composite mix of backgrounds, experience, knowledge and capabilities that will allow our board to promote our strategic
objectives and fulfill its responsibilities to our stockholders. Our nominating and corporate governance committee and our board of directors
value diversity and, as such, also consider diversity of gender, race, ethnicity, age, gender identity, gender expression and sexual orientation
when selecting members of our board.
Board and Committee Meetings Attendance
The full board of directors met [***] times during
fiscal year 2023. Our Audit Committee held [***] meetings, our Compensation Committee held [***] meetings, and our Nominating and Governance
Committee held [***] meetings. Each director attended at least 75% of the aggregate of the total number of meetings of the board and the
board committees on which he or she served.
Director Attendance at Annual Meeting of Stockholders
While we do not have a formal policy requiring
our directors to attend stockholder meetings, directors are invited and encouraged to attend all meetings of stockholders. We expect that
several of our directors will attend the 2024 Annual Meeting of Stockholders.
Policy on Trading, Pledging and Hedging of Company Stock
Certain transactions in our securities (such as
purchases and sales of publicly traded put and call options, and short sales) create a heightened compliance risk or could create the
appearance of misalignment between management and stockholders. In addition, securities held in a margin account or pledged as collateral
may be sold without consent if the owner fails to meet a margin call or defaults on the loan, thus creating the risk that a sale may occur
at a time when an officer or director is aware of material, non-public information or otherwise is not permitted to trade in Company securities.
Our insider trading policy expressly prohibits derivative transactions of our stock by our executive officers and directors, except for
transactions involving our publicly traded common stock warrants.
Compensation Clawback
Policy
The Company established
a policy regarding the recoupment of certain performance-based compensation payments (“Clawback Policy”), which became effective
as of December 1, 2023. This policy is included as Exhibit 97 to our Annual Report on Form 10-K for the 2023 year. The Audit Committee
of the Company determined that no performance-based compensation (or the vesting of such compensation) within the prior three years was
based upon the achievement of financial results, as reported in a Form 10-Q, Form 10-K or other report filed with the Securities and Exchange
Commission (“SEC”), and therefore had no obligation, pursuant to the Company’s Clawback Policy, to recover erroneously
paid or awarded compensation.
Rule 10b5-1 Sales Plans
Our policy governing transactions in our securities
by directors, officers, and employees permits our officers, directors, and certain other persons to enter into trading plans complying
with Rule 10b5-1 under the Exchange Act. Generally, under these trading plans, the individual relinquishes control over the transactions
once the trading plan is put into place and can only put such plans into place while the individual is not in possession of material non-public
information. Accordingly, sales under these plans may occur at any time, including possibly before, simultaneously with, or immediately
after significant events involving our company.
Code of Business Conduct and Ethics
We have adopted a written Code of Business Conduct
and Ethics that applies to our directors, officers and employees, including all of our executive officers. A current copy of the code
is posted on the corporate governance section of our website, which is located at https://investors.aclarion.com/corporate-governance.
If we make any substantive amendments to, or grant any waivers from, the code of business conduct and ethics for any officer or director,
we will disclose the nature of such amendment or waiver on our website or in a Current Report on Form 8-K.
Board Leadership Structure and Board’s Role in Risk Oversight
The board does not have an express policy on whether
the role of chairman of the board should be combined or separated from the role of the CEO or any other executive officer position. Instead,
the board prefers to maintain the flexibility to determine which leadership structure best serves the interests of Aclarion and its stockholders
based on the evolving needs of the Company. We currently have a combined leadership structure where our chairman is also an executive
officer of the Company. Where the chairman and an executive officer role are combined as they are currently, our corporate governance
guidelines require that we have a lead independent director position to complement the chairman’s role and to serve as the principal
liaison between the non-employee directors and the chairman. Mr. Wesemann currently serves as our lead independent director, providing
effective, independent leadership of our board through his set of roles and responsibilities.
Risk is inherent to every business, and how well
a business manages risk can ultimately determine its success. We face a number of risks, including risks relating to our financial condition,
development and commercialization activities, operations, strategic direction and intellectual property. Management is responsible for
the day- to-day management of risks we face, while our board of directors, as a whole and through its committees, has responsibility for
the oversight of risk management. In its risk oversight role, our board of directors has the responsibility to satisfy itself that the
risk management processes designed and implemented by management are adequate and functioning as designed.
The role of the board of directors in overseeing
the management of our risks is conducted primarily through committees of the board of directors, as disclosed in the descriptions of each
of the committees above and in the charters of each of the committees. The full board of directors (or the appropriate board committee
in the case of risks that are under the purview of a particular committee) discusses with management our major risk exposures, their potential
impact on us, and the steps we take to manage them. When a board committee is responsible for evaluating and overseeing the management
of a particular risk or risks, the chair of the relevant committee reports on the discussion to the full board of directors during the
committee reports portion of the next board meeting. This enables the board of directors and its committees to coordinate the risk oversight
role, particularly with respect to risk interrelationships.
Communication with the Directors of Aclarion
Any stockholder or interested party may communicate
with our board of directors, as a whole, or with individual directors on the board of directors, through an established process for stockholder
and other interested party communication. For a communication directed to the board of directors as a whole, stockholders and other interested
parties may submit a written communication by postal mail to the attention of the chair of our board of directors at the following address:
Aclarion, Inc., Attention: Chair of the Board of Directors, c/o Corporate Secretary, 8181 Arista Place, Suite 100, Broomfield, CO 80021.
For a communication directed to an individual director
in his capacity as a member of the board of directors, stockholders and other interested parties may send such communication to the attention
of the individual director at the following address: Aclarion, Inc., Attention: [Name of Individual Director], c/o Corporate Secretary,
8181 Arista Place, Suite 100, Broomfield, CO 80021.
We will forward by U.S. Mail any such communication
to each director, and the chair of the board of directors in his capacity as a representative of the board of directors, to whom such
communication is addressed to the address specified by each such director and the chair of the board of directors, unless there are safety
or security concerns that mitigate against further transmission. A copy of any such written communication may also be forwarded to the
Company’s counsel and a copy of such communication may be retained for a reasonable period of time. You may submit your concern
anonymously or confidentially.
Communications may be forwarded to other directors
if they relate to important substantive matters and include suggestions or comments that may be important for other directors to know.
In general, communications relating to corporate governance and long-term corporate strategy are more likely to be forwarded than communications
relating to ordinary business affairs, personal grievances and matters as to which we tend to receive repetitive or duplicative communications.
The audit committee oversees the procedures for
the receipt, retention, and treatment of complaints received by the Company regarding accounting, internal accounting controls, or audit
matters, and the confidential, anonymous submission by employees of concerns regarding questionable accounting, internal accounting controls
or auditing matters. The Company has also established a toll-free telephone number for the reporting of such activity, which is (833) 214-2442.
Compensation committee interlocks and insider participation
None of the current members of our compensation
committee has ever been an executive officer or employee of ours. None of our executive officers currently serves, or has served during
the last completed fiscal year, on the compensation committee or board of directors of any other entity that has one or more executive
officers serving as a member of our board of directors or compensation committee.
Non-Employee Director Compensation
Our non-employee directors began serving on our
board following our April 2022 IPO.
Our Executive Chairman, Dr. Thramann, and our President
and Chief Executive Officer, Mr. Ness, do not receive compensation for their services as a director.
Our board of directors approved the following compensation
for our non-employee directors in 2023. Our non-employee directors receive annual cash compensation of (i) $25,000 for service on the
board (ii) $15,000 for service as the Audit Committee chair, and (iii) $5,000 for service on each board committee. All cash payments will
be made quarterly in arrears, and pro-rated for any partial quarters of service.
The following Director Compensation Table summarizes
the compensation of each of our non-employee directors for services rendered to us during the year ended December 31, 2023:
|
Name |
|
Fees Earned or Paid in Cash ($) |
|
Stock Awards
($) |
|
Option Awards
($) |
|
All Other Compensation
($) |
|
Total
($) |
| Scott Breidbart |
|
40,000 |
|
-0- |
|
-0- |
|
-0- |
|
40,000 |
| Steve Deitsch |
|
45,000 |
|
-0- |
|
-0- |
|
-0- |
|
45,000 |
| David Neal |
|
25,000 |
|
-0- |
|
-0- |
|
-0- |
|
25,000 |
| William Wesemann |
|
40,000 |
|
-0- |
|
-0- |
|
-0- |
|
40,000 |
| Amanda Williams |
|
35,000 |
|
-0- |
|
-0- |
|
-0- |
|
35,000 |
Executive Compensation
As an “emerging growth company,” we
have opted to comply with the executive compensation disclosure rules applicable to “smaller reporting companies,” as such
term is defined in the rules promulgated under the Securities Act.
This section provides an overview of the compensation
awarded to, earned by, or paid to each individual who served as our principal executive officer during our fiscal year 2023, and our next
three most highly compensated executive officers in respect of their service to our Company for fiscal year 2023. We refer to these individuals
as our named executive officers. Our named executive officers for fiscal year 2023 are:
| |
· |
Jeffrey Thramann, our Executive Chairman; |
| |
· |
Brent Ness, our Chief Executive Officer; |
| |
· |
John Lorbiecki, our Chief Financial Officer; and |
| |
· |
Ryan Bond, Chief Strategy Officer. |
Our executive compensation program is based on
a pay for performance philosophy. Compensation for our executives is composed primarily of the following main components: base salary,
bonus, and equity incentives in the form of stock options and/or RSUs. Like all full-time employees, our executive officers are eligible
to participate in our health and welfare benefit plans. We will continue to evaluate our compensation philosophy and compensation plans
and arrangements as circumstances require.
2023 Summary Compensation Table
The following table contains
information about the compensation paid to or earned by each of our Named Executive Officers during the two most recently completed fiscal
years.
| Name and Principal Position |
Year |
|
Salary
($) |
|
Bonus
($)(1)(2) |
|
Stock
Awards
($) |
|
Option
Awards
($)(3) |
|
|
All Other Compensation
($) |
|
Total
($) |
|
| Jeff Thramann, Executive Director |
2023 |
|
300,000 |
|
|
|
– |
|
|
– |
|
|
– |
|
|
300,000 |
|
| |
2022 |
|
300,000 |
|
18,750 |
|
– |
|
|
252,369 |
|
|
– |
|
|
571,119 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Brent Ness, Chief Executive Officer |
2023 |
|
300,000 |
|
|
|
– |
|
|
|
|
|
|
|
|
300,000 |
|
| |
2022 |
|
300,000 |
|
118,750(4) |
|
– |
|
|
90,704 |
|
|
– |
|
|
509,454 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ryan Bond, Chief Strategy Officer |
2023 |
|
200,000 |
|
|
|
|
|
|
|
|
|
|
|
|
200,000 |
|
| |
2022 |
|
200,000 |
|
19,532(5) |
|
– |
|
|
– |
|
|
– |
|
|
219,532 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| John Lorbiecki, Chief Financial Officer |
2023 |
|
225,000 |
|
|
|
|
|
|
|
|
|
|
|
|
225,000 |
|
| |
2022 |
|
225,000 |
|
89,871(6) |
|
– |
|
|
19,747 |
|
|
– |
|
|
334,618 |
|
____________________
| (1) |
The Company has a discretionary annual cash bonus program. The Company has not yet determined and approved annual cash bonuses for the year 2023. |
| (2) |
Except for the amounts described in notes 4, 5, and 6 of our financial statements, the 2022 bonus amounts reflect cash bonus amounts earned in the 2022 year (as determined and approved by our compensation committee in March 2023). |
| (3) |
Represents the grant date fair value of stock option awards computed in accordance with FASB ASC Topic 718, excluding the effect of estimated forfeitures. For information regarding assumptions underlying the valuation of equity awards, see Note 15 to our financial statements included in this prospectus. |
| (4) |
Under the terms of his employment agreement, Mr. Ness received a bonus payment of $100,000 upon the IPO completed in April 2022. |
| (5) |
The Company implemented a cash bonus plan related to the temporary deferral of all employees’ base salaries by 50% effective as of October 16, 2020. Under this program, $8,594 was paid to Mr. Bond in 2022. |
| (6) |
Under the terms of his employment agreement, Mr. Lorbiecki received a bonus payment of $28,125 upon the IPO completed in April 2022. |
Employment Agreements
Dr. Jeff Thramann
On June 15, 2021, we entered into an employment
agreement with Dr. Jeff Thramann. The employment agreement was retroactively made effective to March 1, 2021. The employment agreement
provides that Dr. Thramann will:
| |
· |
Receive a salary of $25,000 per month.; |
| |
· |
Be appointed as Executive Director (an executive officer position with the Company), as an “at will” employee, until the date of the IPO, at which time he transitioned from Executive Director to Executive Chairman, an executive officer of the Company. |
| |
· |
Be issued options (the “Thramann Options”) to purchase 1,204,819 shares of common stock (the “Thramann Option Shares”) of the Company subject to the terms and conditions set forth in the Company’s equity incentive plan, at an exercise price of $1.94 per share. The options have a 10-year term. The vesting of the Thramann Options occurred on the date of the IPO, April 21, 2022. |
Brent Ness
On
September 15, 2021, we entered into an Employment Agreement with Brent Ness. The employment agreement provides that Mr. Ness would:
| |
· |
Be appointed Chief Executive Officer of the Company. |
| |
· |
Receive an annual base salary of $300,000, plus an additional $100,000 if the Company completes an initial public offering and its securities are listed for trading on Nasdaq or the NYSE. |
| |
· |
Commencing in 2022, Mr. Ness will be eligible to receive, upon certain conditions, an annual incentive bonus up to 50% of Mr. Ness’ base salary |
| |
· |
Mr. Ness’ employment agreement is terminable ‘at will’ by the Company. If the Company terminates Mr. Ness’ employment without cause or Mr. Ness terminates for good reason, he is entitled to receive twelve months of base salary, (ii) up to nine months of paid health insurance under COBRA, and (iii) any earned but unpaid bonus for a prior completed fiscal year. |
| |
· |
Be issued options to purchase 341,365 shares of common stock of the Company, subject to the terms and conditions set forth in the Company’s equity incentive plan, at an exercise price of $1.94 per share. The stock options have a 10-year term. The stock options will vest in 48 equal installments on each monthly anniversary of the date of grant, such that the grant will become fully vested and exercisable on the four-year anniversary of the date of grant. |
John Lorbiecki
On September 22, 2021, we entered into an Employment
Agreement with John Lorbiecki. The employment agreement provides that Mr. Lorbiecki would:
| |
· |
Be appointed Chief Financial Officer of the Company as an “at will” employee. |
| |
· |
Receive an annual base salary of $225,000. |
| |
· |
Commencing in 2022, Mr. Lorbiecki will be eligible to receive, upon certain conditions, an annual incentive bonus up to 50% of Mr. Lorbiecki’s base salary. |
| |
· |
Mr. Lorbiecki’s employment agreement is terminable ‘at will’ by the Company. If the Company terminates Mr. Lorbiecki’s employment without cause or Mr. Lorbiecki terminates for good reason, he is entitled to receive twelve months of base salary, (ii) up to nine months of paid health insurance under COBRA, and (iii) any earned but unpaid bonus for a prior completed fiscal year. |
| |
· |
Be issued options to purchase 66,934 shares of common stock of the Company subject to the terms and conditions set forth in the Company’s equity incentive plan, at an exercise price of $1.94 per share. The stock options have a 10-year term. The stock options will vest in 48 equal installments on each monthly anniversary of the date of grant, such that the grant will become fully vested and exercisable on the four-year anniversary of the date of grant. |
Outstanding Equity Awards at 2022 Fiscal Year End Table
The following table sets forth information regarding
equity awards held by our Named Executive Officers as of December 31, 2023. Information in this table has been adjusted for our January
3, 2024, reverse stock split.
| |
|
|
|
Option Awards |
|
Stock Awards |
|
| Name |
|
Grant
Date |
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Exercisable |
|
Number of
Securities
Underlying
Unexercised
Options
(#)
Unexercisable |
|
Option
Exercise
Price
($) |
|
Option
Expiration
Date |
|
Number of
Shares or
Units of
Stock That
Have Not
Vested
(#) |
|
Market
Value of
Shares or
Units That
Have Not
Vested
($) |
|
| Dr. Jeffrey Thramann |
|
9/27/2021 |
|
75,302 |
|
– |
|
$31.04 |
|
9/27/2031 |
|
– |
|
– |
|
| |
|
9/14/2022 |
|
11,581 |
|
– |
|
$31.04 |
|
9/14/2032 |
|
– |
|
– |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Brent Ness |
|
9/27/2021 |
|
12,002 |
|
9,335 |
|
$31.04 |
|
9/27/2031 |
|
– |
|
– |
|
| |
|
9/14/2022 |
|
2,658 |
|
2,067 |
|
$31.04 |
|
9/14/2032 |
|
– |
|
– |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Ryan Bond |
|
2/19/2019 |
|
1,339 |
|
– |
|
$21.44 |
|
2/19/2029 |
|
– |
|
– |
|
| |
|
9/4/2021 |
|
382 |
|
– |
|
$31.04 |
|
9/4/2031 |
|
– |
|
– |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| John Lorbiecki |
|
9/27/2021 |
|
2,267 |
|
1,918 |
|
$31.04 |
|
9/27/2031 |
|
– |
|
– |
|
| |
|
9/14/2022 |
|
558 |
|
472 |
|
$31.04 |
|
9/14/2032 |
|
– |
|
– |
|
Equity Compensation Plan Information
The following table provides information as of
December 31, 2023 with respect to the shares of our common stock that may be issued under our existing equity compensation plans.
| 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 (Excluding Securities Reflected in Column (a)) |
| | |
| (a) | | |
| (b) | | |
| (c) | |
| Equity Compensation Plans Approved by Stockholders (1) | |
| 3,220,735 | | |
$ | 1.77 | | |
| 984,747 | |
| | |
| | | |
| | | |
| | |
| Equity Compensation Plans Not Approved by Stockholders | |
| – | | |
| – | | |
| – | |
| | |
| | | |
| | | |
| | |
| Total | |
| 3,220,735 | | |
$ | 1.77 | | |
| 984,747 | |
| (1) |
Consists of (i) stock options granted under the Nocimed, Inc. 2015 Stock Plan and (ii) stock options and restricted stock units (“RSUs”) granted under the Aclarion, Inc. 2022 Equity Incentive Plan, as amended. We ceased granting awards under the 2015 Plan upon the implementation of the 2022 Plan described below. |
The Company’s 2022
Equity Incentive Plan, which became effective upon the completion of our IPO in April 2022, serves as the successor equity incentive plan
to the 2015 Plan.
The 2022 Equity Incentive
Plan contains an “evergreen” provision, pursuant to which the number of shares of common stock reserved for issuance pursuant
to awards under such plan shall be increased on the first day of each year beginning in 2023 and ending in 2032 equal to the lesser of
(a) five percent (5%) of the shares of stock outstanding (on an as converted basis) on the last day of the immediately preceding fiscal
year and (b) such smaller number of shares of stock as determined by our board of directors. On January 1, 2024, the Company had an additional
[***] common shares added to the 2022 Equity Incentive Plan pursuant to the evergreen provision.
CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS
Certain Relationships and Transactions
Other than the compensation agreements and other
arrangements described under the sections entitled “Executive Compensation” and “Director Compensation” in this
proxy statement and the transactions described below, since January 1, 2022, there has not been and there is not currently proposed, any
transaction or series of similar transactions to which we were, or will be, a party in which:
| |
· |
the amount involved exceeded, or will exceed, $120,000 (or, if less, 1% of the average of our total asset amounts at December 31, 2023); and |
| |
· |
in which any director, executive officer, holder of 5% or more of any class of our capital stock or any member of the immediate family of, or entities affiliated with, any of the foregoing persons, had, or will have, a direct or indirect material interest. |
Since January 2020, we paid a total of $125,324
to the Regents of the University of California pursuant to our License Agreement with them. Professor Jeffrey Lotz, PhD, who was a director
of the Company prior to our IPO, is a Director of the Company, is the Vice Chair of Orthopedic Research at University of California San
Francisco. Dr. Lotz continues to serve as a member of our Scientific Advisory Board. We will continue to make payments to the Regents
of the University of California for the duration of our License Agreement with them.
We have entered into a number of investment and
commercial transactions with Nuvasive, Inc. (NuVasive”) which previously owned more than 10% of our outstanding common shares.
In 2015, NuVasive purchased approximately $2.0
million of the Company’s Series B preferred shares. NuVasive and the Company also entered into a marketing agreement pursuant to
which NuVasive would be the exclusive, other than the Company, marketing provider for the Company’s technology and NuVasive would
receive a commission (the “Commission”) of all sales of the technology made by NuVasive. In conjunction with the marketing
agreement, the Company entered into a Right of First Offer (“ROFO”) Agreement pursuant to which the Company agreed that in
the event that the Company determined to enter into a sale event (defined to include a sale of 50% or more of the Company’s outstanding
voting securities, a sale of substantially all of the Company’s assets, or a sale or exclusive license of substantially all of the
Company’s intellectual property) NuVasive would have the right to receive notice (“ROFO Notice”), and NuVasive would
have a 60-day period to determine whether it wanted to acquire the Company on terms set forth in the ROFO Notice. The ROFO obligations
will expire 42 months after the FDA issues its first regulatory clearance of a Company product or service. The ROFO obligations do not
apply to any proposed sale event in which the acquisition price is $40 million or more.
In February 2020, NuVasive agreed to purchase $308,720
of convertible notes, convertible into Series B-1 preferred shares and in connection with such purchase, was issued a warrant to purchase
171,511 shares of common stock at an exercise price of $0.18 per share.
In February 2020, NuVasive and the Company also
entered into an amended and restated commission agreement (the “Commission Agreement”), pursuant to which the Company agreed
to pay NuVasive a commission of 6% of certain revenues of the Company related to Aclarion’s Nociscan technology through December
31, 2023, and issued to NuVasive the right to receive the Company’s preferred shares subject to the terms of a $2 million “SAFE”
(Simple Agreement for Future Equity). The SAFE provided that NuVasive would receive $2 million of capital stock if the Company would raise
a minimum of $10.0 million of new capital on or before December 31, 2020, which was later extended to June 30, 2021. If the $10.0 million
was not raised, the Company would issue to NuVasive 1,584,660 Series B-2 preferred shares. The $10.0 million was not raised and the Company
issued 1,584,660 Series B-2 preferred shares to NuVasive in December 2021. In connection with the Commission Agreement, NuVasive agreed
that: (i) NuVasive would cease to market the Company’s technology, (ii) NuVasive would reduce their Commission to 6%, and (iii)
Commissions to NuVasive would terminate on December 31, 2023. In December 2021, NuVasive’s convertible notes were converted into
Series B-3 preferred shares.
Since January 2019, SC Capital 1 LLC and Clark
Gunderson, M.D. have invested in (i) our Series B-1 preferred stock financing and (ii) our 6% convertible preferred note financing. Such
investments were made on the same terms offered to other investors. David Neal, one of our directors, is the founder and a current member
of SC Capital 1, LLC. Until December 2022, SC Capital 1 LLC owned more than 10% of our outstanding common shares.
On February 16, 2023, we entered into a securities
purchase agreement with Jeffrey Thramann, our Executive Chairman pursuant to which we issued and sold one (1) share of the Company’s
newly designated Series A Preferred Stock for an aggregate purchase price of $1,000.
The share of Series A Preferred Stock will have
15,000,000 votes and will vote together with the outstanding shares of the Company’s common stock as a single class exclusively
with respect to any proposal to amend the Company’s Certificate of Incorporation to effect a reverse stock split of the Company’s
common stock. The share of Series A Preferred Stock will be voted, without action by the holder, on any such reverse stock split proposal
in the same proportion as shares of common stock are voted on such proposal (excluding any common shares that are not voted).
The Series A Preferred Stock otherwise has no voting
rights, except as may otherwise be required by the General Corporation Law of the State of Delaware. The share of Series A Preferred Stock
is not convertible into, or exchangeable for, shares of any other class or series of stock or other securities of the Company. The share
of Series A Preferred Stock has no rights with respect to any distribution of assets of the Company, including upon a liquidation, bankruptcy,
reorganization, merger, acquisition, sale, dissolution or winding up of the Company, whether voluntarily or involuntarily. The holder
of the Share of Series A Preferred Stock will not be entitled to receive dividends of any kind. The share of Series A Preferred Stock
shall be redeemed in whole, but not in part, at any time (i) if such redemption is ordered by our board in its sole discretion or (ii)
automatically upon the effectiveness of the amendment to the Certificate of Incorporation implementing a reverse stock split. Upon such
redemption, the holder of the Series A Preferred Stock will receive consideration of $1,000.00 in cash. We redeemed the one outstanding
share of Series A preferred stock on March 28, 2023.
Related Person Transaction Policy
Our board of directors adopted a written related
person transaction policy providing that transactions with our directors, executive officers and holders of five percent or more of our
voting securities and their affiliates, each a related person, must be approved by the audit committee. This policy became effective in
February 2022 in connection with our IPO. Pursuant to this policy, the audit committee has the primary responsibility for reviewing and
approving or disapproving “related person transactions,” which are transactions between us and related persons and in which
a related person has or will have a direct or indirect material interest.
Pursuant to this policy, the material facts as
to the related person’s relationship or interest in the transaction are disclosed to our audit committee prior to their consideration
of such transaction. The audit committee will consider, among other factors that it deems appropriate, whether the transaction is on terms
no less favorable to us than terms generally available in a transaction with an unaffiliated third-party under the same or similar circumstances
and the extent of the related person’s interest in the transaction.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE
Section 16(a) of the Exchange Act requires our
officers and directors, and persons who own more than 10% of a registered class of our equity securities, to file reports of ownership
and changes in ownership (Forms 3, 4, and 5) with the SEC. Officers, directors, and greater than 10% stockholders are required to furnish
us with copies of all such forms which they file.
Based solely on a review of reports furnished to
us, or written representations from reporting persons, we believe all directors, executive officers, and 10% owners timely filed all reports
regarding transactions in our securities required to be filed in 2023 by Section 16(a) under the Exchange Act.
PRINCIPAL STOCKHOLDERS
The following table sets forth information, to
the extent known by us or ascertainable from public filings, with respect to the beneficial ownership of our common stock as of November
[***], 2024 by:
| |
· |
each of our directors; |
| |
· |
each of our named executive officers; |
| |
· |
all of our current directors and executive officers as a group; and |
| |
· |
each person, or group of affiliated persons, who is known by us to be the beneficial owner of more than five percent of our capital stock. |
The column entitled “Shares Beneficially
Owned” is based on a total of [***] shares of our common stock outstanding as of November [***], 2024.
Beneficial ownership is determined in accordance
with the rules and regulations of the SEC and includes voting or investment power with respect to our common stock. Shares of our common
stock subject to options and RSUs that are currently exercisable or vested, or exercisable or will vest within 60 days of November [***],
2024 are considered outstanding and beneficially owned by the person holding the options and RSUs for the purpose of calculating the
percentage ownership of that person but not for the purpose of calculating the percentage ownership of any other person. Except as otherwise
noted, the persons and entities in this table have sole voting and investing power with respect to all of the shares of our common stock
beneficially owned by them, subject to community property laws, where applicable. Except as otherwise indicated in the table below, addresses
of named beneficial owners are c/o Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield, CO 80021.
| | |
|
| Name of Beneficial Owner | |
Amount and Nature of Beneficial Ownership | |
Approximate Percentage of Outstanding Shares of Common Stock |
| 5% Stockholders: | |
| | | |
| | |
| None | |
| – | | |
| – | |
| | |
| | | |
| | |
| Executive Officers and Directors: | |
| | | |
| | |
| Jeff Thramann (1) | |
| 86,882 | | |
| * | |
| Brent Ness (2) | |
| 22,517 | | |
| * | |
| John Lorbiecki (3) | |
| 5,526 | | |
| * | |
| Ryan Bond (4) | |
| 4,284 | | |
| * | |
| David Neal (5) | |
| 18,201 | | |
| * | |
| William Wesemann (6) | |
| 7,793 | | |
| * | |
| Amanda Williams (7) | |
| 3,391 | | |
| * | |
| Stephen Deitsch (7) | |
| 3,391 | | |
| * | |
| Scott Breidbart (7) | |
| 3,391 | | |
| * | |
| | |
| | | |
| | |
| All directors and executive officers as a group (9 persons) | |
| 155,376 | | |
| 1.5% | |
________________________
|
*
(1) |
Represents beneficial ownership of less than 1%.
Represents outstanding stock options held by Dr.
Thramann. |
| (2) |
Mr. Ness’ beneficial ownership includes 1,281 common shares, 21,173 vested options, and 63 IPO Warrants, and excludes 4,886 unvested options. |
| (3) |
Mr. Lorbiecki’s beneficial ownership includes 1,400 common shares and 4,126 vested options, and excludes 1,086 unvested options. |
| (4) |
Mr. Bond’s beneficial ownership includes 1,250 common shares, 1,721 vested options, and 1,313 IPO Warrants. |
| (5) |
Mr, Neal’s beneficial ownership includes 11,658 common shares, 2,150 IPO Warrants, and 4,393 vested options. |
| (6) |
Mr. Wesemann’s beneficial ownership includes 3,296 common shares, 3,809 vested stock options, and 688 IPO Warrants, and excludes 756 unvested stock options. |
| (7) |
Includes 3,391 vested stock options and excludes 547 unvested stock options. |
REPORT OF THE AUDIT COMMITTEE
The audit committee is appointed by the board of
directors to assist the board of directors in fulfilling its oversight responsibilities with respect to (1) the integrity of Aclarion’s
financial statements, (2) Aclarion’s compliance with legal and regulatory requirements, (3) the qualifications, independence and
performance of Aclarion’s independent auditors engaged for the purpose of preparing or issuing an audit report or performing other
audit, review or attest services for Aclarion and (4) other matters as set forth in the charter of the audit committee approved by the
board of directors.
Management is responsible for the preparation of
Aclarion’s financial statements and the financial reporting process, including its system of internal control over financial reporting
and its disclosure controls and procedures. The independent registered public accounting firm is responsible for performing an audit of
Aclarion’s financial statements in accordance with the standards of the Public Company Accounting Oversight Board, or the PCAOB,
and issuing a report thereon. The audit committee’s responsibility is to monitor and oversee these processes.
In connection with these responsibilities, the
audit committee reviewed and discussed with management and the independent registered public accounting firm the audited consolidated
financial statements of the Company for the fiscal year ended December 31, 2023. The audit committee also discussed with the independent
registered public accounting firm the matters required to be discussed by the applicable requirements of the PCAOB and the SEC. In addition,
the audit committee has received and reviewed the written disclosures and the letter from the independent registered public accounting
firm as required by applicable requirements of the PCAOB regarding that firm’s communications with the audit committee concerning
independence and has discussed with the independent registered public accounting firm their independence.
Based on the reviews and discussions referred to
above, the audit committee recommended to the board of directors that the audited consolidated financial statements of Aclarion be included
in Aclarion’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, that was filed with the SEC. The information
contained in this report shall not be deemed to be “soliciting material,” (2) “filed” with the SEC, (3) subject
to Regulations 14A or 14C of the Exchange Act, or (4) subject to the liabilities of Section 18 of the Exchange Act. This report shall
not be deemed incorporated by reference into any of our other filings under the Exchange Act or the Securities Act, except to the extent
that we specifically incorporate it by reference into such filing.
| |
THE AUDIT COMMITTEE OF THE BOARD OF |
| |
DIRECTORS OF ACLARION, INC. |
| |
|
| |
Stephen Deitsch |
| |
Scott Breidbart |
| |
William Wesemann |
| |
|
November [***], 2024
HOUSEHOLDING
We have adopted a procedure called “householding,”
which the SEC has approved. Under this procedure, we deliver a single copy of the Notice of Internet Availability and, if applicable,
our proxy materials to multiple stockholders who share the same address, unless we have received contrary instructions from one or more
of such stockholders. This procedure reduces our printing costs, mailing costs and fees. Stockholders who participate in householding
will continue to be able to access and receive separate proxy cards. Upon written or oral request, we will deliver promptly a separate
copy of the Notice of Internet Availability and, if applicable, our proxy materials to any stockholder at a shared address to which we
delivered a single copy of any of these materials. This request may be submitted by contacting Aclarion, Inc., 8181 Arista Place, Suite
100, Broomfield, CO 80021, Attention: Corporate Secretary, telephone: 833-275-2266. Any such stockholder may also contact our Corporate
Secretary using the above contact information if he or she would like to receive separate proxy statements, notice of internet availability
and annual reports in the future. If you want to receive separate copies of the proxy statement or annual report to stockholders in the
future, or if you are receiving multiple copies and would like to receive only one copy per household, you should contact your bank, broker
or other nominee record holder, or you may contact us at the above address and phone number.
STOCKHOLDER PROPOSALS
A stockholder who would like to have a proposal
considered for inclusion in our 2025 proxy statement must submit the proposal in accordance with the procedures outlined in Rule 14a-8
of the Exchange Act. However, if the date of the annual meeting of stockholders in 2025 (the “2025 Annual Meeting”) is changed
by more than 30 days from the date of the previous year’s meeting, then the deadline is a reasonable time before we begin to print
and send our proxy statement for the 2025 annual meeting.
If that happens, we will publicly announce the
deadline for submitting a proposal in a press release or in a document filed with the SEC. We intend to hold the 2025 annual meeting in
June or July, 2025. Therefore, we intend to publicly announce the date of the 2025 annual meeting and the Rule 14a-8 deadline in early
2025.
SEC rules set standards for eligibility and specify
the types of stockholder proposals that may be excluded from a proxy statement. Stockholder proposals should be addressed to Aclarion,
Inc., 8181 Arista Place, Suite 100, Broomfield, CO 80021, Attention: Corporate Secretary.
If a stockholder wishes to propose a nomination
of persons for election to our board of directors or present a proposal outside of Rule 14a-8 of the Exchange Act at an annual meeting
but does not wish to have the proposal considered for inclusion in our proxy statement and proxy card, our bylaws establish an advance
notice procedure for such nominations and proposals. Stockholders at an annual meeting may only consider proposals or nominations specified
in the notice of meeting or brought before the meeting (i) by or at the direction of the board of directors or (ii) by a stockholder who
was a stockholder of record at the time of giving notice, who is entitled to vote at the meeting, who is present (in person or by proxy)
at the meeting and who has delivered timely notice in proper form to our Corporate Secretary of the stockholder’s intention to bring
such business before the meeting.
In accordance with the advance notice procedure
specified in our bylaws, for any stockholder proposal submitted outside the processes of Rule 14a-8 of the Exchange Act to be considered
timely, the required notice must be in writing and received by our Corporate Secretary at our principal executive offices not later than
the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first
anniversary of the preceding year’s annual meeting. However, in the event that the date of the annual meeting is convened more than
30 days before or more than 60 days after the first anniversary of the preceding year’s annual meeting, or if no annual meeting
were held in the preceding year, a stockholder’s notice must be so received not later than the close of business on the later of
(i) the 90th day prior to the scheduled date of such annual meeting or (ii) the 10th day following the day on which
public announcement of the date of such annual meeting was first made.
We intend to hold the 2025 annual meeting in late
June or July, 2024. Therefore, we intend to publicly announce the date of the 2025 annual meeting and the Rule 14a-8 deadline in early
2025.
Stockholder proposals and the required notice should
be addressed to Aclarion, Inc., 8181 Arista Place, Suite 100, Broomfield, CO 80021, Attention: Corporate Secretary.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports,
proxy statements and other information with the SEC. Our SEC filings are available to the public from commercial document retrieval services
and at the website maintained by the SEC at https://www.sec.gov. You may also access any document we file with the SEC on our website
at https://www.aclarion.com under the “Investor Relations” section.
You should rely on the information contained in
this document to vote your shares at the Annual Meeting. We have not authorized anyone to provide you with information that is different
from what is contained in this document. This document is dated November [***], 2024. You should not assume that the information contained
in this document is accurate as of any date other than that date, and the provision of this document to stockholders at any time after
that date does not create an implication to the contrary. This proxy statement does not constitute a solicitation of a proxy in any jurisdiction
where, or to or from any person to whom, it is unlawful to make such proxy solicitations in such jurisdiction.
ANNUAL REPORT
We will provide without charge to each person to
whom a copy of the proxy statement is delivered, upon the written or oral request of any such persons, additional copies of our Annual
Report as filed with the SEC. Requests for such copies should be addressed to:
Aclarion, Inc.
8181 Arista Place, Suite 100
Broomfield, CO 80021
(833) 275-2266
Attention: Corporate Secretary
OTHER MATTERS
Our board of directors does not know of any other
matters to be brought before the Annual Meeting. If any other matters not mentioned in this proxy statement are properly brought before
the Annual Meeting, the individuals named in the enclosed proxy intend to use their discretionary voting authority under the proxy to
vote the proxy in accordance with their best judgment on those matters.
APPENDIX A
CERTIFICATE OF AMENDMENT
to the
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
ACLARION, INC.
ACLARION, INC., a corporation
organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify
as follows:
FIRST: The name of the Corporation
is Aclarion, Inc. The Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware
(the “Secretary of State”) on April 21, 2022, as amended (the “Certificate of Incorporation”).
SECOND: ARTICLE IV of the
Corporation’s Certificate of Incorporation shall be amended by inserting Subsection “(G)” at the end of such section
which shall read as follows:
G. Reverse Stock Split.
Upon the filing (the “Effective Time”) of this Certificate of Amendment pursuant to the Section 242 of the General Corporation
Law of the State of Delaware, each (__) shares of the Corporation’s Common Stock, issued and outstanding immediately prior to the
Effective Time (the “Prior Common Stock”) shall automatically without further action on the part of the Corporation or any
holder of Prior Common Stock, be reclassified, combined, converted and changed into (__) fully paid and nonassessable shares of common
stock, par value of $0.00001 per share (the “New Common Stock”), subject to the treatment of fractional share interests as
described below (the “Reverse Stock Split”). The conversion of the Prior Common Stock into New Common Stock will be deemed
to occur at the Effective Time. From and after the Effective Time, certificates representing the Prior Common Stock shall represent the
number of shares of New Common Stock into which such Prior Common Stock shall have been converted pursuant to this Certificate of Amendment.
Holders who otherwise would be entitled to receive fractional share interests of New Common Stock upon the effectiveness of the Reverse
Stock Split shall be entitled to receive a whole share of New Common Stock in lieu of any fractional share created as a result of such
Reverse Stock Split.
THIRD: The stockholders of
the Corporation have duly approved the foregoing amendment in accordance with the provisions of Section 242 of the General Corporation
Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation
has caused this Certificate of Amendment to be duly adopted and executed in its corporate name and on its behalf by its duly authorized
officer as of the _________ day of _________, 20__.
ACLARION, INC.
By:________________
Name:
Title:
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VOTE ON INTERNET |
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Go to http://www.vstocktransfer.com/proxy |
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Click on Proxy Voter Login and log-on using the below control number. The voting polls will be open
until 11:59 p.m. December [***], 2024. |
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| * SPECIMEN * |
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CONTROL # |
| 1 MAIN STREET |
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| ANYWHERE PA 99999-9999 |
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VOTE IN PERSON |
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If you would like to vote in
person, please attend the Annual Meeting of Stockholders to be held on December [***], 2024 at 9:30 a.m. (Mountain time) at the offices
of Aclarion, Inc. 8181 Arista Place, Broomfileld, CO 80021. |
Annual
Meeting of Stockholders Proxy Card – Aclarion, Inc.
The Board of Directors
recommends you vote "FOR" each of the director nominees, "FOR" on Proposals 2, 3, 4, 5, 6 and 7
1. Election
of Directors:
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FOR ALL NOMINEES LISTED BELOW
(except as marked to the contrary
below) |
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WITHHOLD AUTHORITY TO VOTE
FOR ALL NOMINEES LISTED BELOW |
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INSTRUCTION:
TO WITHHOLD AUTHORITY TO VOTE FOR ONE OR MORE INDIVIDUAL NOMINEES STRIKE A LINE THROUGH THE NOMINEES' NAMES BELOW:
| 01 |
Jeffrey Thramann |
02 |
Brent Ness |
03 |
Scott Breidbart |
04 |
Stephen Deitsch |
| 05 |
David Neal |
06 |
William Wesmann |
07 |
Amanda Williams |
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2.
The ratification of the appointment of Haynie & Company as the Company's independent registered public accounting firm for
the year ending December 31, 2024.
3.
Proposal to authorize, in accordance with Nasdaq Listing Rule 5635(d), the issuance of shares of our common stock pursuant to
the Company's Amended Equity line of Credit.
4.
To authorize, in accordance with Nasdaq Listing Rule 5635(d), the issuance of shares of our common stock pursuant to the Series
B Preferred Issuance Proposal.
5.
To authorize, in accordance with Nasdaq Listing Rule 5635(d), the issuance of shares of our common stock, pursuant to our Series
C Preferred Issuance Proposal.
6.
Proposal to amend our certificate of incorporation to effect a reverse stock split.
7.
To approve an amendment to the Company’s 2022 Equity Incentive Plan.
In
their discretion, the proxies are authorized to vote upon such other business as may properly come before the Annual Meeting of Stockholders
or any adjournment or postponement thereof.
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Signature |
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Signature, if held jointly |
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| To change the address on your account, please check the box at right and indicate your new address. |
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| * SPECIMEN * |
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AC:ACCT999 |
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90.00 |
ACLARION
INC.
Annual
Meeting of Stockholders
December
[***], 2024
ACLARION, INC.
THIS PROXY IS SOLICITED ON
BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder(s)
of ACLARION, INC., a Delaware corporation, hereby appoint(s) Brent Ness and John Lorbiecki, or either of them, as proxies for the undersigned,
each with full power of substitution, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this
ballot, all of the shares of Common Stock of ACLARION, INC. that the undersigned stockholder(s) is/are entitled to vote at the Annual
Meeting of Stockholders to be held at 9:30 AM, Mountain Time, on December [***], 2024, at 8181 Arista Place, Broomfield, CO 80021, and
any adjournment or postponement thereof. The undersigned hereby acknowledges receipt of the Notice of Annual Meeting of Stockholders
and the accompanying Proxy Statement and revokes any proxy heretofore given with respect to such meeting.
This proxy, when properly executed,
will be voted in the manner directed herein by the undersigned stockholder. If no direction is given, this proxy will be voted "FOR"
each of the nominees for director and "FOR" proposals 2, 3, 4, 5, 6 and 7 each as described in the Proxy Statement.
PLEASE INDICATE YOUR VOTE ON
THE REVERSE SIDE
(Continued and to be signed on Reverse
Side)
Aclarion (NASDAQ:ACONW)
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