UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934 (Amendment No. )
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by the Registrant [X]
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by a Party other than the Registrant
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Preliminary
Proxy Statement |
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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 under §240.14a-12 |
electroCore,
Inc.
(Name
of Registrant as Specified In Its Charter)
(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant)
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ELECTROCORE,
INC.
150 Allen Road, Suite 201
Basking Ridge, NJ 07920
SUPPLEMENT
TO PROXY STATEMENT
RELATING
TO ANNUAL MEETING OF STOCKHOLDERS
To
Be Held On June 12, 2020
This
proxy statement supplement should be read together with the
definitive proxy statement (the “Proxy Statement”) of electroCore,
Inc. (the “Company”) filed with the Securities and Exchange
Commission on April 27, 2020 in connection with the Company’s 2020
annual meeting of shareholders (the “Annual Meeting”) to be held on
June 12, 2020.
The
purpose of this filing is to update the information contained in
the Proxy Statement relating to the “broker non-vote” rules and
voting requirements regarding Proposal 4: To authorize the Board,
in its sole discretion, to file amendments to the Company’s
Certificate of Incorporation to (i) effect a one-time reverse stock
split of the Common Stock at a ratio of 1 share-for-5 shares up to
a ratio of 1 share-for-20 shares, which ratio will be selected by
the Board in its sole discretion, and (ii) in conjunction therewith
to reduce the number of authorized shares of Common Stock available
for issuance from 500 million shares to 200 million shares
(“Proposal 4”). The Proxy Statement indicated that Proposal 4 was a
“non-routine” item and that, therefore, a broker does not have the
discretion to vote uninterested shares on Proposal 4. Proposal 4 is
in fact a “routine” matter and therefore a broker who has not
received the instructions from its clients will have the discretion
to vote its clients’ uninstructed shares on Proposal 4.
Accordingly, the Company is hereby revising the information in the
Proxy Statement to state that, in addition to Proposal 3 (the
ratification of the Company’s independent registered public
accounting firm), Proposal 4 is a “routine” proposal for which
there will be no broker non-votes because a broker will be
permitted to exercise its discretion to vote uninstructed shares on
Proposal 4.
Except
as specifically supplemented by the information contained above,
all information set forth in the Proxy Statement remains unchanged.
From and after the date of this Proxy Statement supplement, all
references to the “Proxy Statement” are to the Proxy Statement as
supplemented hereby.
CHANGES
TO PROXY STATEMENT
The
following sections on pages 2 through 7 (Questions and Answers
About These Proxy Materials and Voting) and page 33 (Proposal 4) of
the Proxy Statement are accordingly amended and restated as
follows:
Beneficial
Owner: Shares Registered in the Name of Broker or
Bank
If
you are a beneficial owner and do not instruct your broker, bank,
or other agent how to vote your shares, they will not have the
authority to vote your shares on matters other than Proposal 3 for
the ratification of KPMG LLP as the Company’s independent auditors
and Proposal 4 which is the Reverse Split Proposal.
How
are votes counted?
Votes
will be counted by the inspector of election appointed for the
Annual Meeting, who will separately count, for each of the
proposals, votes “For,” “For all,” “Against” and any broker
non-votes and abstentions. For each of Proposals 1, 2, and 5,
broker non-votes will have no effect and will not be counted toward
the vote total for the director nominees. For Proposals 3 and 4,
brokers will have voting discretion if the beneficial owner does
not give instructions as to how to vote.
What
are “broker non-votes”?
As
discussed above, when a beneficial owner of shares held in “street
name” does not give instructions to the broker or nominee holding
the shares as to how to vote on a significant matter, the broker or
nominee cannot vote the shares under Nasdaq rules. These unvoted
shares are counted as “broker non-votes.” Proposal 3, the
ratification of KPMG as independent auditors, and Proposal 4, the
Reverse Split Proposal, are considered routine matters, and brokers
or nominees holding the shares will have voting discretion if the
beneficial owner does not give instructions as to how to
vote.
How
many votes are needed to approve each proposal?
Regarding
Proposal 1, the Declassification Amendments must receive the
affirmative vote of at least two-thirds of the voting power of all
of the then-outstanding shares of capital stock of the Company
entitled to vote generally in the election of directors, voting
together as a single class. Therefore, this proposal will be
approved if the number of votes cast “For” approval of such
proposal constitutes at least two-thirds of the outstanding shares
of Common Stock. This means that if you abstain from voting on this
proposal, your vote will have the same effect as a vote against
this proposal. Broker non-votes will also have the same effect as
votes against the proposal.
Regarding
Proposal 2, the election of directors, the Board’s nominees will be
elected by a plurality of the votes of the shares present in person
or represented by proxy and entitled to vote on the election of
directors, and which did not abstain. Only votes “For,” “For all,”
or “Against” will affect the outcome with respect to this proposal,
and abstentions will have no effect.
To be
approved, Proposal 3, the ratification of KPMG as independent
auditors, must receive “For” votes from the holders of a majority
of shares present in person or represented by proxy and entitled to
vote on the matter, and which did not abstain. Only votes “For” or
“Against” will affect the outcome, and abstentions will have no
effect.
To be
approved, Proposal 4, the Reverse Split Proposal, must receive
“For” votes from a majority of the outstanding Common Stock
entitled to vote thereon, and which did not abstain. Only votes
“For” or “Against” will affect the outcome, and abstentions will
have no effect.
To be
approved, Proposal 5, the approval pursuant to Nasdaq Listing Rule
5635(d) of the issuance of more than 19.99% of the Company’s issued
and outstanding shares of Common Stock pursuant to the Purchase
Agreement with Lincoln Park, must receive “For” votes from the
holders of a majority of shares present in person or represented by
proxy and entitled to vote on the matter, and which did not
abstain. Only votes “For” or “Against” will affect the outcome, and
abstentions will have no effect.
Proposal
4: Required Vote
To be
approved, Proposal 4, the Reverse Split Proposal, must receive
“For” votes from a majority of the outstanding Common Stock
entitled to vote thereon and which did not abstain. Only votes
“For” or “Against” will affect the outcome, and abstentions will
have no effect.
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